Director of Public Prosecutions v Soutar

[2019] VCC 2203

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00276

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER SOUTAR

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November 2019
DATE OF SENTENCE:	5 December 2019
CASE MAY BE CITED AS:	DPP v Soutar
MEDIUM NEUTRAL CITATION:	[2019] VCC 2203

REASONS FOR SENTENCE

Subject: Criminal law - sentence            

Catchwords:   Pleas of guilty to two charges of blackmail – threats used to extract payment of money – two victims pursued over 17 days – families of victims subjected to frightening threats – serious example of blackmail - 37 year old offender with no previous convictions – good work history – good prospects for rehabilitation.     

Cases Cited:Saracevic v R [2017] VSCA 212; La Rosa v R [2019] VSCA 152;

Qarau v R [2013[ VSCA 141; Cooper v R [2013] VSCA 153

Sentence:      2 years and 9 months, npp 18 months.      

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M Roper (Plea) Ms A. McVean (Sentence)	OPP
For the Accused	Mr I. Hill QC with   Ms P. Smith (plea) Ms P. Smith (sentence)	Anthony Condello Lawyers

HER HONOUR: 

1Christopher Alfred Soutar, you have pleaded guilty to two charges of blackmail.  At the time, you were a member of a motorcycle club and by the commission of these offences, you caused significant harm to two families.  I shall return to that matter after I have set out a summary of the offending.

2The background is that the two victims, Rocco Veneziano and Liam McDonnell were partners in two restaurant businesses together with a third man, Vaughan Thompson.  By December 2017, the businesses were in difficulty and Thompson agreed to buy the others out.  Loan agreements were drawn up and Thompson made payments for the first three weeks and then stopped.

3In May 2018, a debt collector came to McDonnell's home demanding money for debts relating to one of the restaurants.  He and Veneziano then received emails from Thompson stating that he had been approached by a debt collector, so they met with Thompson and agreed to split the debt into three equal parts.  Veneziano and McDonnell were to make payments once they saw a payment by Thompson into the account. However Thompson made no payments.  At this stage, Thompson tried to sell his house but Veneziano put a caveat on it to secure debts owed to him from a previous loan agreement.

4In September, McDonnell contacted Veneziano and told him he had been contacted by a standover man demanding payments for debts.

5Your offending commenced on 1 October when you rang McDonnell identifying yourself as 'Spider' regarding a debt.  You said that McDonnell owed $44,000 but you would accept $40,000.  You claimed to be part of the 1% Motorcycle Gang.  You demanded a meeting and payment that day.  You made veiled threats and mentioned McDonnell's home address.  McDonnell said he could raise $1,500 and arranged to meet you.  That took place at 9.15 pm that evening at the Werribee Plaza Tavern, where you attended with another man and were handed $2,400 by McDonnell.  You displayed a tattoo of “1%” in a diamond pattern and said to the other man 'Show him what we do to cunts who mess us around.'

6You and the man produced a Zip lock which appeared to contain some flesh and blood and said, 'That's some cunt's tongue who tried to get smart with us.'

7I will say at this stage that your demands and threats throughout the period of contact with the victims were littered with foul vocabulary and I will restrict reproducing it in my account of your actions and utterances.

8The next day, 2 October, you demanded further payment from McDonnell saying that if he paid $15,000, there would be no interest payable, otherwise there would be $3,000 interest each week.  McDonnell called you back later and agreed to meet you the next day after going to the bank.

9On 3 October, McDonnell withdrew $15,000 from his bank and met you at the same place.  He had a friend with him who remained concealed from your view to record the meeting.  McDonnell handed over the money and you told him he had two weeks to make another payment interest free.  You then rang Veneziano claiming to have bought his debt of $80,000 and demanding payment in a week saying 'If I hear you've gone to the cops, look out.'

10Veneziano called Thompson asking about the person demanding payment, to which Thompson responded in effect that there was nothing he could do because Veneziano had placed a caveat on his property.  The two men had further discussions in the following days but then Thompson ceased communication.

11On 9 October, you rang Veneziano at about 1 pm demanding money, saying you would call back in two hours with a meeting arrangement.  You rang back at 4.30 pm demanding a meeting at 7 pm.  Veneziano said he could not do that but he could meet you the next day at 1 pm.  You said 'You don't tell me what to do I know where you live.  I know your wife, I know your kids and if you don't show up, I will burn down your house.'  Veneziano found a note in the letterbox which read 'Nice house.'  At 8 pm, his wife received a text message saying 'It's Spider, get Rocky to call me.' 

12On 9 October, Veneziano called a police inspector he knew and told him about the calls.  The inspector contacted you and in effect told you to back off to which you responded abusively.  Meanwhile, you called McDonnell again asked for the next payment, telling him “interest  starts next week”.

13On 10 October, he reported the matter to the police.  On 11 October, you rang him and sent threatening text messages with an ultimatum expressed in abusive language.

14On 13 October, you rang McDonnell several times and left abusive and aggressive text messages demanding he return your calls.  McDonnell called you back and recorded the aggressive conversation in which you repeatedly threatened him and Veneziano with reference to his wife and the details you knew about him.  This was followed by a tentative agreement to pay another $10,000.

15On 15 October, Veneziano received a text from you saying that there was a head in his front yard and to look in its mouth.  The following day, he found a severed pig's head on a path in his property with photos of himself and his wife in its mouth.  He took these to the police.

16Meanwhile, on 17 October, you pursued McDonnell with phone calls and a text message, and again he recorded a conversation in which you were very aggressive in relation to Veneziano, threatening to harm him and by implication his children as well.  Indeed, you then threatened Veneziano more directly by texting his wife 'You never know what happens when you pick up your kids from school.'  And then to Veneziano himself, 'Your missus just hit Geelong, nice car.'

17On the same day, you sent a text message to McDonnell reminding him of the deal and he replied that Veneziano will not be paying the $110,000.  You replied in a conversation recorded by McDonell in which you had aggressively criticised him  and by implication threatened his safety.

18On 18 October, you were arrested in possession of the mobile phone used to make the threats.  Late that night, you made a no comment record of interview following which you were taken to hospital, complaining of a painful back condition.  You were remanded in custody from 19 October and released on bail on 17 December 2018.  Part of your bail was a surety of $400,000 with stringent conditions including daily reporting and a curfew.  You have complied fully with no breaches for the past 11 and a half months.

GRAVITY OF THE OFFENDING

19The maximum penalty for blackmail is a prison term of 15 years, with a substantial fine also available as an option.  The maximum prison term is an indication of how seriously such offending is regarded by the legislature, and it was conceded by your counsel, Mr Hill, that a prison sentence is appropriate in your case.

20The seriousness of your offending is apparent from the manner in which you behaved and the effects on the victims.  The offending continued for 17 days during which the two victims were subjected to threats and demands as already set out.  They and each of their wives provided victim impact statements. 
Mr Veneziano stated that the family was very unsettled and living in fear, not letting the children play outside in the front yard and being afraid to answer the phone.

21His wife, Aaliyah  Veneziano, stated that once she became aware of the threats, she was afraid to go outside but also felt unsafe at home.  She found it very hard being at home at night with the children.  Security cameras were installed and she would watch them after the children went to sleep.  Other security steps were also taken and she and her husband remained very anxious and had trouble sleeping.

22Mr McDonnell described the profound emotional impact of constantly looking over his shoulder and fearing for his family's safety, that of his wife and young son.  His wife was 39 weeks pregnant at the time and the family moved out of their home temporarily.  He stated the stress was such that he considers the family dynamic will never be the same again.

23His wife, Merlene McGregor, also said that she and her husband still feel the impact of the threats.  The stress she felt at the time flowed through to the birth of her baby and her ability to connect with him.  She stated that she feels that her family home has been tainted forever.  The fear they had felt before you were charged re-emerged when you were released on bail, prompted particularly by the sound of a motorbike or a sound that could be someone breaking into the house.

24With deference to the wishes of Mr McDonnell and Ms McGregor for their family circumstances to be protected by not having their statements read out in court, I shall not traverse their statements in any further detail.  I am told that the contents have been explained to you.  I have had careful regard to all the statements and have taken them into account in assessing the seriousness of your offending which was indeed grave, even without any actual physical violence or the use of weapons.  So much was conceded by Mr Hill on your behalf.

PERSONAL CIRCUMSTANCES AND BACKGROUND

25I turn now to your background and other personal circumstances.  You are a single man aged 37.  You had an unremarkable upbringing except for the experience which you recounted to the psychologist, Mr Newton, that your father had to endure threats and aggression, even “standover tactics” in his work as a buyer for a large fruit and vegetable company.  On one occasion, the threat of serious violence flowed on to affect the whole family which you found deeply distressing.  There is perhaps some irony in the fact that years later, you offended in a similar way.

26You told the psychologist, Mr Newton, that you participated in the offending out of fear for your own safety and that of your family which was made manifest to you by the presence of the other man, presumably a member of the same motorcycle club.

27School for you was a struggle and you were subject to ostracism and bullying, causing you to act out behaviourally and you were expelled halfway through Year 9 when you were 15.

28You have very limited literacy and numeracy but nonetheless, you have a good work history and you have always been employed.  Recently, you have been working full time as a team leader in a traffic management company and in addition, you and your colleague and manager Miroslav Muse have commenced a business together, providing security guards for building sites in and around Melbourne.  You will have a job to return to when you are released.

29Mr Muse has provided a reference in which he states that he regards you as a decent, hardworking and trustworthy man and a valuable employee who is well respected by others.  He states that you told him about the crimes you committed and it was clear to him that you were remorseful.

30Others who have provided references also speak of your decency and remorse as well as other positive aspects of your character.  Indeed, you have no criminal history at all.

31In 2012, you were married but the marriage ended after only a few months owing to your wife's infidelity.  Shortly afterwards, your dog was fatally poisoned and the combination of these events rendered you emotionally fragile, leading to a suicide attempt followed by treatment for depression.  It was in response to the isolation you experienced and in search of a sense of belonging that you joined a motorcycle or bikie club.  It was as a member of this club that you offended and it has been put by your counsel that you proceeded reluctantly and under the influence of another person who accompanied you to the meetings.

32On the other hand, the forceful and aggressive language you used to the victims, the persistent contact with them and the commission of the offending over 17 days suggests your demonstrated enthusiasm and a “gung ho” attitude.

33While there was an absence of aggravating features such as the use of weapons or physical violence, the threat of it was ever present in the minds of the victims, as they endured a terrifying experience and they are still living with the ongoing emotional effects of the fear you caused.  The charges are serious examples of a serious offence.

MITIGATING FACTORS

34When arrested, you were remanded in custody where you remained for
60 days, your first time in custody.  You found it frightening and it apparently had a profound effect on you.  As I said, bail was granted on 17 December on very strict conditions to which I have already referred and you have not been in any trouble since but have maintained full time employment and have engaged in counselling with Mr Newton.  You severed all ties with the motorbike club and have pursued different social affiliations.  You have had tattoos removed or covered which identified you with the club.  You have become engaged to be married to your partner of several years.  You have no drug or alcohol problems.  These are positive factors which suggest that your prospects for rehabilitation are good, reinforced by your previous good record as a hard worker and a law abiding citizen.

35It is quite likely that there is a reduced need for a focus on specific deterrence in sentencing you.  On the other hand, the principle of general deterrence is very important.  The sentence I impose should serve as a warning to others who might be inclined to offend in the same way that a severe sentence is likely to be imposed.

36You are entitled to a discount on your sentence for having pleaded guilty at an early stage.  Your plea has avoided the need for a trial and importantly has spared the witnesses from having to come to court and give evidence.  It is also accepted as an indication of remorse, but at the time you entered the plea, that indication was in terms of acknowledgement of wrongdoing rather than as an expression of empathy for the victims.

37I note Mr Newton's very careful analysis of your mental state since it has developed since the offending, such that initially he diagnosed a major depressive disorder, which is now in early remission.

38In his first report dated 2 July 2019, Mr Newton considered that your concrete view of the world and diminished emotional awareness generally may have caused this limited empathy, consistent with your deflection of responsibility onto individuals in the motorcycle club.

39In his updated report on 24 November 2019, Mr Newton was of the opinion that your attitude had changed through the therapeutic process and with the passage of time and that you expressed your concern for the emotional wellbeing of the complainants and you stated that you wished to apologise publicly for your conduct.  He said that you are deeply sorry for the pain and anguish you have caused them.

SENTENCING DISCUSSION

40The sentencing submission put on your behalf by Mr Hill was for a combination prison term with a lengthy Community Correction Order.  Certainly, this would provide assistance towards your rehabilitation.  The prosecution position is that the sentence should acknowledge the two offences and so it requires some degree of cumulation which should result in a sentence exceeding the 12 month maximum permissible for a combination sentence.

41The gravity of the offending was such that I have concluded the 12 month limitation on the combination sentence would not provide adequately for appropriate individual sentences as well as cumulation.  However, a suitably short non-parole period will provide for a relatively longer period on parole when you will be subject to supervision and other conditions and can have the opportunity to re-engage with Mr Newton or another treating psychologist as you and he have already discussed.

42In reaching this conclusion, I have considered several authorities to which I was referred.  Mr Hill referred me to the decisions in Saracevic v R[1]and La Rosav R[2] where the charges were less serious than in this case but were accompanied by related offending of various types.  The sentences for the blackmail charges in Saracevic were two years and two and a half years, and for the extortion charge in La Rosa, the sentence was two years.

[1] [2017] VSCA 212

[2] [2019] VSCA 152

43Mr Roper for the prosecution referred me to the sentence Qarauv R[3] where a blackmail charge resulted in a sentence of three years.  The court there emphasised the importance of denunciation and general deterrence for blackmail where offences are difficult to detect, although that does not apply in your case.

[3] [2013] VSCA 141

44I also had regard to the sentence in Cooper v R[4]  For two charges of blackmail in that case, the sentences were four years and three years.  The circumstances of that offending was considerably more serious than in the other two cases and also more serious than your offending, partly owing to Cooper's antecedence and the very prolonged period of offending.

[4] [2013] VSCA 153

45Comparable cases can only be of limited assistance in sentencing but I take the view that the sentences imposed in La Rosa and Saracevic are of more assistance than either of the other two just mentioned.

SENTENCE

46I sentence you to two years' imprisonment for each charge.  Taking the sentence for Charge 1 as the base sentence, I order that nine months of the sentence for Charge 2 be served in cumulation, resulting in a total effective sentence of two years and nine months. 

47I order that you serve a minimum period of 18 months being eligible for parole. 

48I have determined these orders taking into account the principle of totality, the mitigating factors and the need to avoid a crushing sentence.

49I declare that the 60 days of pre-sentence detention be reckoned as already served and I shall cause that to be noted on the court record.

50If you had pleaded not guilty to these charges, I would have sentenced you to three years and six months' imprisonment with a non-parole period of two years.

51The prosecution seeks an order for a forensic sample of saliva to be obtained and through your counsel, you have consented to that.  I make that order and must advise that the police have the power to use reasonable force to obtain the sample but I trust that won't be necessary.

52The prosecution also seeks orders for forfeiture and disposal.  They too are consented to and I shall make those orders.

53Ms McVean, are there any other matters?

54MS McVEAN:  Nothing further, Your Honour.

55HER HONOUR:  Thank you.  Ms Smith?

56MS SMITH:  No, Your Honour.

57HER HONOUR:  Thank you.  Officer, you may take Mr Soutar now.

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