Director of Public Prosecutions v Soltan
[2022] VCC 448
•5 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01907
Indictment No. M11181820
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MINA SOLTAN |
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JUDGE: | HER HONOUR JUDGE CARLIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 April 2022 | |
DATE OF SENTENCE: | 5 April 2022 | |
CASE MAY BE CITED AS: | DPP v Soltan | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 448 | |
REASONS FOR SENTENCE
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Subject: Criminal
Catchwords: plea of guilty; one charge of blackmail; spontaneous and opportunistic offending.
Legislation Cited: Sentencing Act 1991 (Vic).
Cases Cited: Loftus v the Queen [2019] VSCA 24; DPP v Lawrence [2017] VCC 1869; DPP v Mitchell-Beecham [2017] VCC 1834; DPP v Burgess [2020] VCC 1497; Worboyes v The Queen [2021] VSCA 169; R v Sun [2004] VSCA 190; Boulton v The Queen (2014) 46 VR 308; Borg v The Queen [2020] VSCA 191.
Sentence: Convicted and Sentenced to a 2-year Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. McCarthy | Office of Public Prosecutions |
| For the Accused | Mr M. White | VicLaw Lawyers |
HER HONOUR:
Introduction[1]
[1] Summary based on the agreed facts set out in the Summary of Prosecution Opening and marked as1Mina Soltan, on the evening of 12 May 2021, you attended the Hwatu restaurant in Carlton and saw a mouse running across the floor. You filmed it on your mobile phone and developed the idea that you could turn the experience into a money-making exercise.
2You complained to a member of staff and insisted that she call the restaurant owner, Mr Au, who was not on site. As an introduction to the idea of compensation you told Mr Au that you had had to pay a woman who had tripped over in your business the sum of $55,000. You told him his restaurant was filthy and that you might get sick from eating there. This led Mr Au to offer you $300 for medical expenses which you refused, saying 'We're talking thousands'. Mr Au asked how much you wanted but you would not say, instead asking him about his takings and wanting to know how much was in the till. Mr Au agreed to pay you something and asked you to leave your mobile number, which you did.
3What might have been just the beginnings of an idea crystallised when you called Mr Au at 10:21 that night and demanded he pay you $10,000 the next day or you would post a video of the mouse on social media and his business would be in trouble. You offered him a discount if he paid before midnight.
4Mr Au had the wherewithal to record two subsequent conversations with you on that night where you repeated your demands and offer of a discount. Just before midnight, you texted Mr Au your bank account details and asked him what was happening.
5The next day Mr Au reported you to the police and then, with police knowledge, recorded another conversation with you where payment was discussed and you threatened Mr Au that you could 'take the shop' from him.
6Finally, on 15 May, after no payment was forthcoming and Mr Au had blocked your mobile number, you sent him a WhatsApp message with a photograph of the mouse saying, 'This is the first I can show you. The video you will watch on the social media. You have wasted my time and you will be paying for it'.
7On 7 June 2021, the police executed a search warrant at your home and seized the mobile phone that you had used to commit the blackmail. You were arrested and interviewed and told the police that Mr Au had first suggested paying compensation to you and that he was trying to manipulate you into not writing a negative Google review about the restaurant. You denied blackmailing Mr Au.
8You were charged with one charge of blackmail on that day and released on bail.
9You pleaded guilty before me to a single charge of blackmail today and a plea on your behalf was conducted before me today as well. It now falls to me to sentence you for your conduct. Your counsel Mr White submitted that a Community Corrections Order was within range and appropriate in your case.
10The Prosecutor Mr McCarthy agreed that a Community Corrections Order was within range although acknowledging that other sentences were also within range.
11In arriving at an appropriate sentence, I am required by law to have regard to a variety of factors which I will outline in these sentencing remarks.[2] Some tend towards leniency and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence.
[2] Sentencing Act 1991 (Vic) s 5(2) (‘Sentencing Act’).
Your personal circumstances
12Your personal circumstances were outlined in Defence submissions and also a report of psychologist Jeffrey Cummins. Mr Cummins saw you in his rooms on 14 October 2021.
13You were born in Egypt in September 1987. You are now 34 years old. You had an unremarkable childhood and you are still close to your mother and sister who remain in Egypt. Your father died in 2019.
14You finished your secondary schooling, and then went to university in Egypt. You partially completed a computer science course before moving to Australia in 2010. You were sponsored in your move to Australia by your wife, who was also born in Egypt but had moved to Australia in 2004. You married her shortly after you arrived in Australia in 2010.
15After settling in Melbourne in March 2010, you worked in various jobs until in November 2013 you commenced working as a departmental manager at Bargain Car Rentals at Melbourne International Airport. You were promoted to the position of State manager at that enterprise.
16In March 2020, you travelled to Egypt and were intending to return within a month. However, due to COVID you were not able to return to Australia until late December 2020. While you were away, your employer terminated your employment and when you came back, did not re-engage you.
17Your relationship with your wife was not entirely without its troubles and in 2012, an intervention order was obtained against you for a period of 12 months. You reconciled with your wife, however it appears that your relationship finally came to an end whilst you were in Egypt in 2020.
18In 2014, you attended at the Heidelberg Magistrates' Court in relation to charges against your wife and were sentenced to a Community Corrections Order which you successfully completed.
19You are currently living on your own in a rented apartment in Docklands although you have a partner, according to the Corrections assessment.
20After you returned to Melbourne in 2020, you obtained work as a sales consultant for MAW Motor Group in Coburg where you earn a base salary of $60,000 plus commission. You are still employed in that position and the owner of that enterprise and the business manager have both provided references to the court in relation to you.
Objective Gravity of your offending and moral culpability
21Two factors of central importance in determining any sentence are the objective gravity of the offending and the moral culpability of the offender. If there was any doubt about the inherent seriousness of your offence the maximum penalty of 15 years makes it clear.
22That said, there is obviously a wide spectrum of seriousness within any offence and blackmail is no exception. The recent case of Loftus[3] to which I was referred discusses the different ways blackmail can be committed.
[3] Loftus v the Queen [2019] VSCA 24 (‘Loftus’).
23At paragraph 86, the Court of Appeal said,
'Blackmail is an inherently serious offence. The threat of harm may involve physical harm, threat to property (including property of another), embarrassment or shame. It is usually predicated on persuading the victim that compliance with the demands is likely to be less onerous than the consequences of refusing to meet the demand.'
24In your case, there are factors which increase the offence gravity and your moral culpability and factors which reduce them.
25I accept that what you did was, at least initially, opportunistic and spontaneous. You did not plan to extort money but took advantage of a situation which presented itself. In that regard, I note that it is not disputed that you did in fact see a mouse. Your offending was also unsophisticated and naïve, in that you used your name and phone number and bank account details.
26On the other hand, the sum you demanded was not trivial, being $10,000. Further, with time to reflect after your initial phone call, you did not abandon the idea of demanding money under threat of exposure, rather you repeated it. You should have recognised your conduct as stupid and immoral – not to mention illegal – and desisted. Finally, your actions were cruel and calculated. You would have been well aware of the difficulty many small businesses, particularly restaurants, faced because of COVID. Indeed, you told Mr Cummins you were worried about the effects of COVID on your own job security. To threaten the livelihood of a small business owner in that situation shows remarkable indifference.
27As far as your moral culpability is concerned, Mr Cummins assessed you as being a man of at least high average intelligence and not suffering from any mental impairments that would have affected your judgement. However, I accept that you were under considerable financial and emotional strain at the time, being involved in protracted and acrimonious family law proceedings and owing about $40,000 in personal loans. You were also, you told Mr Cummins, smoking a lot of cannabis that time, something which you have not done since at least November 2021. These matters are somewhat explanatory of your poor decision making.
28As serious as your conduct was, I consider it to be at the lower end of the spectrum of seriousness for your particular offence and your moral culpability likewise.
Current Sentencing Practices
29To promote consistency of approach in sentencing, particularly, the application of relevant principles, I am required to have regard to current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both.
30Whilst no two cases are ever truly the same, and other sentences are not precedents to be applied or distinguished, sentences imposed in comparable cases may provide a convenient yardstick against which to measure any sentence proposed in the instant case.
31I have had regard to the four cases to which I was referred by the Prosecutor and Defence counsel. That is one Court of Appeal case and three County Court sentences.[4]
[4] Loftus (n 3); DPP v Lawrence [2017] VCC 1869; DPP v Mitchell-Beecham [2017] VCC 1834; DPP v Burgess [2020] VCC 1497.
32I have already referred to the Court of Appeal case, being Loftus. Two of the County Court cases were quite similar to yours, involving unsophisticated and opportunistic demands of a shop owner, although for less money and they resulted in terms of imprisonment combined with a Community Corrections Order. The other County Court case, which was decided in 2020, was also opportunistic and resulted in a Community Corrections Order without imprisonment. The demand in that case was for $25,000 from a bank.
33Whilst all these cases are informative, as I have already said no two cases are ever truly the same. Personal and mitigating circumstances always differ. There is no single correct sentence and sentences imposed in other cases are not binding. Ultimately, my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case.
Impact of your offending
34Turning to the impact of your offending, I received a Victim Impact Statement from Mr Au and in it, he spoke of the fact that he is now afraid of receiving telephone calls from unknown people and that he does not feel safe staying at his shop. He talked about how stressful it was and his fear that you will exact revenge upon him as a result of these legal proceedings.
35As I said before, the sort of crime you committed on Mr Au, particularly during these stress and financial difficulties caused by COVID was a cruel thing to do.
Plea of Guilty, co-operation and remorse
36You are entitled to a significant discount in your sentence for the fact you have pleaded guilty and did so at a very early stage, namely at the first committal mention on 2 September 2021. In so doing, you facilitated the course of justice and took legal responsibility for your crimes. You also spared Mr Au and other witnesses the ordeal of coming to court to give evidence.
37Moreover, our Court of Appeal has recently emphasised the need for sentences to reflect the high value of pleas of guilty in the current COVID-19 environment where the legal system is under considerable strain.[5]
[5] Worboyes v The Queen [2021] VSCA 169, [39].
38I also accept that you are remorseful and you get a greater discount for that.
Your character and risk of reoffending
39You have one prior court appearance to which I have already referred. That was in 2014 and there were two offences: intentionally cause injury and recklessly cause injury. I am informed that they related to an incident, or at least one incident involving your wife, now your ex-wife. It is somewhat concerning that you denied that you had assaulted your wife or ex-wife in your Corrections assessment despite the fact you were obviously dealt with for those offences in 2014. It is concerning because a denial of those offences reflects upon your prospects of rehabilitation.
40Nevertheless, I take into account that you were given a Corrections order for those offences and that you complied with that order and that there has been nothing in the nature of any violence since then or before then in terms of your criminal history.
41I am informed that there is one outstanding charge that relates to a breach of an intervention order and in particular, you driving past or near the home of your ex-wife but not involving any violence.
42That matter in 2014 is dissimilar in many ways in that it is a direct offence of violence against a person but it is similar in that it shows your willingness to disregard another person's welfare, be it physical or emotional. It was physical on that occasion and more emotional on this occasion.
43You are not entitled to be sentenced as a person of otherwise good character because of that prior matter and also the fact you had had a longstanding issue with cannabis, although as I said not apparently now.
44In your favour, however, is your good employment history and the fact your criminal history is limited.
45I also take into account the three character references that I have been provided. Two of them as I have said before are relating to your present employment and indicating that you are a loyal and valued employee and also that you are remorseful for your actions. And one of them from a Father Sourial who is your priest from the Coptic Orthodox Church of which you are a member.
46Father Sourial indicates that he has known you for more than 10 years and understands you to be very upset in relation to the charge and remorseful. He also indicates that you have done community work and volunteer work for the church and that he regards you as decent, hardworking and trustworthy.
47All up, I consider that your prospects of rehabilitation are good, especially given your now prolonged abstinence from cannabis.
The burden of imprisonment
48In determining the appropriate sentence, I must consider how a term of imprisonment would be likely to impact you. No material has been put before me to suggest that prison would be particularly burdensome for you. And in that regard, I note that you are in good physical health apart from suffering from scoliosis which causes you some pain and that your mental health also appears to be generally good although you are upset and continue to be upset about the fact that you have not seen your children since February 2021.
49That said, it is generally acknowledged that imprisonment during the pandemic is harder than at other times. Not only is there the worry of contracting the virus in prison, there is also the curtailment of various activities and programs, the reduction or suspension of personal visits and occasional lockdowns. All those matters are additional burdens.
Purposes of Sentencing
50I turn now to the purposes of sentencing. I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation and protection of the community. A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required.
51There is no question as to the seriousness of your offending. The Court of Appeal has said of blackmail that it 'is a cowardly offence and invariably aimed at those who are exposed and powerless to resist'.[6] It has also said that the fact that blackmail often instils fear in the victim means that it is difficult to detect and insidious. Potential offenders must be dissuaded by the prospect of condign punishment and actual victims encouraged to come forward by the knowledge that this will occur. In other words, general deterrence is a paramount sentencing consideration for the crime of blackmail.[7]
[6] R v Sun [2004] VSCA 190, [19] (Winneke P).
[7] See, eg, Loftus (n 3) [87].
52For the same reasons, I consider denunciation to also be of prime importance in the sentencing equation. Specific deterrence and community protection have some, but lesser roles to play in your case. Your rehabilitation is important given your good prospects and the fact that it is by your rehabilitation that the community will be best protected.
53I have had you assessed for a Community Corrections Order and you have been found suitable and indicated your consent to that order. Although I asked for an assessment in respect of a number of areas including drugs, mental health and programs to reduce reoffending, you were assessed as being of low risk of reoffending and the only recommendation was for community work.
54The central issue for me is whether to impose that on its own or in combination with a term of imprisonment.
55It is clear that Community Corrections Orders have a punitive element and can, in appropriate cases, achieve all the sentencing purposes, including denunciation and general deterrence whilst promoting rehabilitation. The suitability of properly conditioned community corrections orders of lengthy duration for serious offences has been affirmed by our Court of Appeal previously.[8]
[8] Boulton v The Queen (2014) 46 VR 308; Borg v The Queen [2020] VSCA 191.
56I have already set out the matters in full in your favour and against in the course of these reasons. There is no need to repeat them. After weighing these competing considerations and having particular regard to the cases of Boulton and Worboyes, I have concluded that all the relevant sentencing purposes can be met in your case by the imposition of a Community Corrections Order notwithstanding the seriousness of your offence.
Sentence
57Please stand up now, Mr Soltan.
58On the single charge of blackmail, I convict and sentence you to a Community Corrections Order for a period of two years.
CCO
59You are to report to the Melbourne Community Correctional Services Centre within two working days of today. As well as the mandatory conditions which include that you not commit another offence and various other things such as not leaving Victoria without first getting permission to do so and obeying all lawful instructions and directions of the Secretary, I have imposed some special conditions and they are as follows:
·Firstly, you are to be under the supervision of a Corrections officer for the duration of the order. Now, that condition was not recommended by the Office of Corrections, but in my view, it would be appropriate that you have that supervision for the period of the order – for two years.
·Secondly, you are to perform 300 hours of unpaid community work over the period of the order.
60Do you understand those conditions? The supervision, 300 hours of community work.
61OFFENDER: Yes, I do, Your Honour.
62HER HONOUR: Yes. And you must make sure that you comply with that order because breach of the order is an offence in itself so you will be charged with breaching the order if you do that; and in addition you will be liable to be re-sentenced for this offence of blackmail.
63I want you to understand that these are extraordinary times because of COVID where more leniency is afforded in sentencing than at other times and further you are being given an extraordinary opportunity to avoid a term of imprisonment. If you fail to comply with your Community Corrections Order, I will know that my faith in you has been misplaced and a term of imprisonment will be the almost inevitable consequence, do you understand that?
64OFFENDER: Yes, I understand, Your Honour.
Section 6AAA
65HER HONOUR: If you had not pleaded guilty to this charge and been found guilty by a jury, I would have sentenced you to a total effective sentence of imprisonment of two years with a non-parole period of one year and six months. So that is what would have happened if you had pleaded not guilty and been found guilty.
66Now, Mr Soltan, I have already signed the order. I will have it given to your counsel who can take it up to you and then you can sign it.
67All right. Mr Soltan, you can be seated again. Thanks. Any other matters that I need to attend? I do not think there are any other orders sought.
68MR WHITE: No. And thank you, Your Honour. It has been a late day for Your Honour but to do it in one day, I appreciate that. Makes it easier on the accused and us. Thank you.
69HER HONOUR: Yes. Makes it easier for me too. Nothing from you, Mr McCarthy, in terms of any other orders?
70MR McCARTHY: Nothing further, Your Honour.
71HER HONOUR: All right. Thank you. We will adjourn the court.
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Exhibit A.
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