Director of Public Prosecutions v Thornton (a pseudonym)
[2023] VCC 1720
•22 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEWART THORNTON (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE KELLY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 September 2023 | |
DATE OF SENTENCE: | 22 September 2023 | |
CASE MAY BE CITED AS: | DPP v Thornton (A pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1720 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Blackmail – Theft – Possession of a drug of dependence – Commit an indictable offence on whilst on bail – Cannabis – High Moral Culpability – Vulnerable Complainant – Worboyes discount – Comparable Cases.
Legislation Cited: Crimes Act 1958; Drugs, Poisons and Controlled Substances Act 1981; Bail Act 1977; Sentencing Act 1991.
Cases Cited:Worboyes v The Queen (2021) 96 MVR 344; Surtees v The King [2023] VSCA 42; Astbury v The Queen (No 2) [2020] VSCA 158; Brown v The Queen [2020] VSCA 60; Freeburn v The Queen (No 2) [2020] VSCA 176; Turner v The Queen [2018] VSCA 24; Bugmy v The Queen (2013) 249 CLR 571; Tones v The Queen [2017] VSCA 118; DPP v Ahmed [2023] VCC 1548; DPP v Leifer [2023] VCC 1443; DPP v Henderson (A Pseudonym) [2023] VCC 433; DPP v Nguyen [2022] VCC 99; DPP v Hinton [2019] VCC 1475; Director of Public Prosecutions v Dalgleish (a pseudonym) (2017) 262 CLR 428.
Sentence: Six months imprisonment and a two year Community Correction Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Turner | Office of Public Prosecutions |
| For the Accused | Mr A. Waters | Victoria Legal Aid |
HIS HONOUR:
1Stewart Thornton,[1] you have pleaded guilty to one charge of Blackmail,[2] one charge of Theft,[3] one charge of Possession of a Drug of Dependence,[4] and a rolled-up related summary charge of Commit an Indictable Offence whilst on Bail.[5]
[1] A pseudonym.
[2] Contrary to s 87(1) Crimes Act 1958.
[3] Contrary to s 74(1) Crimes Act 1958.
[4] Contrary to s 73(1) Drugs, Poisons and Controlled Substances Act 1981.
[5] Contrary to s 30B Bail Act 1977.
2The maximum penalties for these offences are as follows:
· Blackmail – 15 years' imprisonment;
· Theft – 10 years' imprisonment;
· Possession of a Drug of Dependence – 5 penalty units;
· Commit an Indictable Offence whilst on Bail – 3 months' imprisonment or 30 penalty units.
Circumstances of Offending
3Your offending was summarised by the Prosecution at your plea.
4You first came into contact with the victim in this matter, Brenda Ingram,[6] by connecting with her over Facebook in 2018. You messaged each other repeatedly, before meeting for the first time approximately 12 months later. You then subsequently met on numerous occasions prior to meeting her on 6 May 2020.
[6] A pseudonym.
5In the early morning of 6 May 2020, you arrived at Ms Ingram's home in Seaholme. You both sat on her bed, smoked cannabis and watched TV. At some point in the evening, you engaged in sexual activity, following which the complainant gave you tissues and took her phone.
6You then told the victim that she had wasted your time and began demanding money from her as compensation. After she told you she did not have any money, you demanded she show you her bank balance using her phone's banking app. She complied.
7Ms Ingram fled to her housemate's room. In distress, she told her housemate, Ms Loren Day,[7] that she owed you $50 and that you had been threatening her. Ms Day locked her bedroom door and called the police. During the time between the Triple 0 call and the arrival of the police you called Ms Ingram several times and were heard knocking on the door and demanding that Ms Ingram 'hurry up'. This conduct forms part of Charge 1: Blackmail.
[7] A pseudonym.
8Eventually you left the property. Ms Ingram's wallet, which contained various items had gone missing from her room. You had taken them. This forms the basis of Charge 2: Theft.
9Throughout the morning of 6 May 2020, you sent a series of text messages to Ms Ingram. In these texts you pressed her to send you money by threatening to report her to the Department of Health and Human Services. You threatened to send the Department incriminating recordings of Ms Ingram, suggesting that she would lose her accommodation and would be barred from seeing her son. You also threatened to call her landlord, and at 11.47 am you sent her this text message: 'or should I show child services, or the commission people pictures and recordings of you fucked up on ice losing it'.
10These threats form part of the conduct the subject of Charge 1: Blackmail.
11Your actions were reported to Victoria Police, and on 12 May 2020 police executed a search warrant on your property. During the search, cannabis was located in a plastic container and various zip lock bags. You reported to police that this was for personal use. This forms the basis of Charge 3: Possession of a Drug of Dependence.
12Following the execution of the search warrant, you were arrested and interviewed by police.
13At the time of your offending, you were on bail. This constitutes Summary Charge 5: Committing an Indictable Offence whilst on Bail.
Defence Submissions
14At the start of your plea hearing your counsel accepted the appalling nature of your offending. He conceded that you engaged in degrading and cynical conduct targeting the heart of Ms Ingram's insecurities.
15In written submissions, your counsel highlighted your previous good character, noting your limited prior history of offending: your only other period of incarceration was a brief stint on remand for a Magistrates' Court matter where you were sentenced to time served.
16Your counsel, Mr Waters, also submitted that your pleas of guilty should be characterised as having been made at an early stage, you having indicated an intention to plead guilty to these charges as early as 6 August 2021. This provided a utilitarian benefit to the court in that it avoided the calling of evidence and saved the court the expense of running a trial. I accept that your pleas constitute early pleas of guilty and I have moderated your sentence accordingly. Additionally, your pleas were entered during a time when the courts were experiencing the effects of the COVID-19 pandemic, and thus your pleas have greater utility in the sense identified in Worboyes.[8] I have ameliorated your sentence in light of this increased utility.
[8] Worboyes v The Queen (2021) 96 MVR 344, 356-357 at [39] (‘Worboyes’).
17Mr Waters also highlighted that you spent a period of 118 days on remand in relation to these offences. It was submitted that your detention on remand during the COVID-19 pandemic was more onerous due to the restrictive steps taken by prison authorities to prevent the spread of the pandemic. He argued that the time you spent on remand was significantly more punitive than the same period experienced outside of pandemic conditions.[9] It was submitted that your sentence should be further ameliorated in light of these conditions and I accept that submission. It is routinely accepted that incarceration during the pendency of the pandemic involved a more intense deprivation of the subject's liberty - often encompassing 23-hour lockdowns, the suspension of rehabilitative programs, access to the gym, the library and the exercise yard. It also involved the reduction or elimination of contact with other prisoners and one's own family and friends consequent upon the suspension of contact visits.[10] Any time spent subject to these additional rigours operates as a powerful deterrent.
[9] E.g., Surtees v The King [2023] VSCA 42, [10].
[10] E.g., Astbury v The Queen (No 2) [2020] VSCA 158 [33]. Cf Brown v The Queen [2020] VSCA 60 [48].
18Your counsel stressed the delay between your being charged and your eventual sentencing for these offences. It was submitted that this delay, not attributable to you, justifies a mitigation in your sentence. I shall return to the submissions concerning delay later.
19Mr Waters accepted that a term of imprisonment was warranted but submitted that you should be sentenced to time-served in combination with a Community Correction Order.
Prosecution Submissions
20The Prosecution highlighted the importance of your interactions with the victim in this matter, and the effect that you have had on her. It was submitted that your conduct was cruel and hurtful and the court should make a strong statement that this kind of behaviour cannot be tolerated.
21The prosecution also pointed to the complainant's vulnerability given her intellectual disability. I accept this is an aggravating feature of your offending.[11]
[11] E.g., Freeburn v The Queen (No 2) [2020] VSCA 176 [39]; Turner v The Queen [2018] VSCA 24 [26].
22None of the stolen items has been returned to the complainant, and I take this into account when considering your remorse, your prospects of rehabilitation and the gravity of the offending.
23Ms Ingram provided a victim impact statement. In it, she describes how your offending has affected her.
24She says she has lost all confidence in herself. She does not trust people anymore and has trouble sleeping. She says she has been diagnosed with 'PDHD' as a result of the incident, which was agreed to be a reference to 'PTSD', or Post Traumatic Stress Disorder.
25Some of the comments made by Ms Ingram may be attributable to the offence for which you have been acquitted. You are entitled to the full benefit of the acquittal, and therefore any impact not arising from the offences for which I am sentencing you is not to be considered. I keep this in mind when I read her statement.
Personal Circumstances
26Your personal circumstances were summarised by Mr Waters on your plea.
27You were born in 1989 and you are the second eldest of four children.
28You were born in Somalia, before moving to Australia at the age of four on a humanitarian visa.
29You allege that you suffered physical abuse at the hands of your mother, escalating to the point that you elected to return to Somalia to live with your father in 2013. This seems extraordinary given that you left Somalia on a humanitarian visa and civil war has raged there since 2009. I have been informed that during your time in Somalia you were exposed to a considerable amount of violence including live fire on occasion. It was said that this had a traumatic effect on you. I have not been provided with any other accounts or materials supportive of this aspect of your history. No family member has confirmed this part of your biography and, without confirmation of it, I am hesitant to accept it.
30You say you returned to Australia after 18 months, and you have since experienced difficulties with substance abuse, homelessness and repeat offending. At some point you had an intervention order taken out against you by your mother.
31You recently married your wife, Eleanor Sullivan[12], via an online ceremony, and I understand you intend to travel overseas at some point to meet for the first time.
[12] A pseudonym.
Gravity of Offending and Moral Culpability
32This blackmail falls within the mid-range of seriousness. The victim was a young woman with a child. As stated, she has an intellectual disability. Your threat was effectively to take her child away from her. As you knew at the time, the nature of this threat went to the heart of Ms Ingram's insecurities and fears, and thus had a considerable impact on her. Having said that, the demand of $100 was small, and the blackmail was far from a sophisticated operation.
33The theft is a low-end example of its type. The appropriation of the complainant's personal documents was no doubt a major inconvenience to her, but the monetary value was slight. The theft occurred in the victim's absence and was not accompanied by any circumstances of aggravation. That said, Ms Ingram attested in her Victim Impact Statement to the effect on her of being deprived of her wallet, ID and birth certificate. At the time of writing her Victim Impact Statement she still had not been able to replace these stolen items.
34The remaining offences are low-end examples.
35Your moral culpability is high. No submission invoking the principles in Bugmy[13] was made related to your upbringing and the florid history you have provided to Mr Waters. No basis for diminishing your responsibility for these offences was identified on your plea. In assessing your moral culpability, I have regard to the length of your friendship with Ms Ingram and the knowledge you had of her anxiety to be reunited with her son. You exploited what she had confided to you when she was disarmed and vulnerable. You abused the trust she had reposed in you and you aimed your attack at the heart of her frailties.
[13] Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).
Prospects of Rehabilitation
36It was submitted by your counsel that you have made progress in achieving rehabilitation since this offending.
37In support of this submission, I was referred to a CISP report dated 3 March 2021. The author of the report noted you had at the time recently engaged in mental health treatment with a psychologist, which you told the author was 'highly beneficial', and that you had acknowledged both the wrongness of your conduct and that you had a need to engage in appropriate treatment. It is also positive to note that you have reported both to CISP and to Community Corrections that you have been able to remain abstinent from methylamphetamines for over 12 months.
38You also have a number of references which speak positively of your prospects. Mr Jeff Walters[14] has told me that you are an educated man who over the last two years has been able to make significant lifestyle changes and obtain permanent accommodation. Ms Shannon McKenzie[15] from Homelessness to a Home reports that you have made lasting changes in your life, and that you have shown 'incredible resilience' in your recovery from homelessness. Mr Andrew Spencer[16] worked with you as your supervisor and found you a joy to work with and someone with a positive work ethic. Your uncle Mr Luke West[17] although dismayed by your conduct, believes you have fixed your life and become a man. Your sister Ms Traci Moore[18] notes that not only have you been a good uncle to your nieces and nephews, but that over the last few years you have made major improvements in your life. Finally, Mrs Eleanor Sullivan,[19] your wife, states that you are a good man with a good heart who has financially assisted your mother-in-law over the last three years.
[14] A pseudonym.
[15] A pseudonym.
[16] A pseudonym.
[17] A pseudonym.
[18] A pseudonym.
[19] A pseudonym.
39The general tenor of many of the references and the CISP reports appears to be that you have made great progress in your rehabilitation, and over the last few years you have taken steps to permanently improve your situation.
40However, there are a number of factors which call for caution when assessing your prospects.
41This offending was committed whilst you were on bail for other offending. It was committed in the wake of a criminal history dating back to 2015, including prior drug and property offences. Of particular note are your 2018 convictions for robbery and theft, for which you were sentenced to a term of imprisonment. You also have a history of struggling to maintain compliance with court orders, failing to complete the CISP bail program in 2018, and contravening a prior Community Correction Order. Finally, you have been assessed by Community Corrections as having a high risk of general reoffending. Whilst I acknowledge that you have been able to comply with the more recent CISP program, I am concerned about your compliance with any non-custodial order I may impose.
42Taking into account the abovementioned factors, your prospects of rehabilitation are fair.
Delay
43This offending occurred in May 2020, and the first committal mention date was listed in August 2020. You have therefore had this matter hanging over your head for over three years. Your counsel made submissions to the effect that, as you indicated an intention to plead guilty to these charges as early as August 2021, the delay cannot be wholly attributable to you, and this justifies the mitigation of your sentence.
44The principles regarding the two limbs of delay are well-trodden. In summary, a sentencing court can mitigate an offender's sentence where there is a demonstrated unfairness to the offender in having charges hanging over their head which causes anxiety (the 'unfairness limb') and/or where an offender has made progress towards their rehabilitation such that their prospects of ongoing rehabilitation are good (the 'rehabilitation limb').[20]
[20] E.g., Tones v The Queen [2017] VSCA 118, [37].
45As to the 'unfairness limb', your counsel submitted that you have spent a number of years with these charges hanging over your head. The seriousness of these offences is such that you have also been grappling with the risk of a significant period of imprisonment. Due to these offences, you have been unable to meet your wife or see your father in person, which I understand from the letter written by your wife has caused both of you considerable distress. Whilst I note the period of uncertain suspense you have endured is not oppressively long,[21] I will moderate your sentence in recognition of the anxiety you experienced and the impact this uncertainty has had on your life and your ability to plan for the future.
[21] E.g., DPP v Ahmed [2023] VCC 1548; DPP v Leifer [2023] VCC 1443; DPP v Henderson (A Pseudonym) [2023] VCC 433.
46Turning to the rehabilitation limb, I have already noted the various reports and references provided to the court on your plea which have described the positive changes you have made to your life over the last few years. I am prepared to accept that you have attended to your rehabilitation during this period of delay, and I have moderated your sentence accordingly.
Sentencing Principles
47Section 5 of the Sentencing Act 1991 provides that the only purposes for which you may be sentenced are:
(a) To punish you in a manner and to an extent which is just in all of the circumstances;
(b) To deter you or others from committing similar offences in future;
(c) To facilitate rehabilitation;
(d) To manifest the denunciation of your conduct;
(e) To protect the community; or
(f) A combination of two or more of these purposes.
48I accept the Prosecution's submission that your conduct is such that this court is required to strongly denounce your behaviour. The way you abused Ms Ingram's trust in you and exploited her vulnerabilities reflects very poorly on your character. Your conduct needs to be denounced. You also need to be deterred from conducting yourself in a similar manner in future.
49In light of the conclusion reached by Community Corrections that you pose a high risk of general reoffending, I find that the protection of the community also has a significant role to play in the sentence I am to impose.
50For completeness, I was referred by your defence counsel, Mr Waters, to DPP v Nguyen[22] and DPP v Hinton,[23] two earlier sentences which it was submitted were relevant to establishing the appropriate sentencing range in your case. They have been useful in the sentencing exercise, although I am also cognisant of the commentary by the court in Dalgleish to the effect that I am not bound by such sentences, and they are one of a number of factors I am to take into account in determining your sentence.[24]
[22] [2022] VCC 99.
[23] [2019] VCC 1475.
[24] Director of Public Prosecutions v Dalgleish (a pseudonym) (2017) 262 CLR 428, 434 at [9] (Kiefel CJ, Bell and Keane JJ) 453-454 at [82]-[83] (Gageler and Gordon JJ).
Community Correction Order Conditions
51Mr Thornton, what I am proposing to do is sentence you to a combination of a period of imprisonment of six months, followed by a Community Correction Order for a period of two years from today.
52Before I ask if you consent to a Community Correction Order being made, I have to tell you a little bit about the order, so you know what it means.
53The following core conditions apply to all Community Correction Orders:
(a) You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.
(b) You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the Order.
(c) You must report to a Community Correction Centre within two clear days of your release from custody. In your case, you will be reporting to the Sunshine Community Correction Services at 499 Ballarat Road, Sunshine.
(d) You must notify the Secretary, or his or her nominee, of any change of address or employment within two clear working days after that change.
(e) You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee.
(f) You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the Order.
54There are a number of other conditions attached to this Order, and they apply to you:
(a) You have to perform 400 hours of unpaid community work over a period of two years as directed by the Regional Manager. Fifty hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
(b) You must be under the supervision of a Community Corrections Officer for a period of two years.
(c) You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager.
(d) You must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional Manager.
(e) You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager.
(f) You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager, and I specifically refer to the Men's Behaviour Program.
55I direct that I be advised by your Corrections officer of any non-compliance of these conditions and I will then determine if the matter should be brought back before me.
56I can only impose a community correction order if you agree to such an order being imposed. So I need to tell you just a little bit more about it.
57If you contravene or breach that order by committing further offences you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach.
58You can also be re-sentenced for the offences that are before me. One of the options available includes a term of imprisonment.
59
So you have got to be extra careful for the two-year operation of the Community Corrections Order. You cannot commit any further offences that might incur a term of imprisonment, otherwise you are back before the Court and you may be
re-sentenced on these charges that are before me.
60If you fail to comply with any direction of the secretary to the Department of Justice, that is a Community Corrections officer or worker, as part of this order, a substantial fine can be imposed.
61Now do you understand all of that?
62OFFENDER: Yes, I do.
63HIS HONOUR: You do? Do you consent to the order being made?
64OFFENDER: Yes, I do.
65HIS HONOUR: Very well. Remain standing. We will get you to sign this and then I will proceed to sentence.
66MR TURNER: Your Honour, may I just mention something while your associate - - -
67HIS HONOUR: You can.
68MR TURNER: And that is in your reasoning or reasons, you indicated that Mr Waters has submitted that there were 118 days of PSD.
69HIS HONOUR: Yes.
70MR TURNER: There is in fact 114.
71HIS HONOUR: A hundred and fourteen. Sorry.
72MR WATERS: That's accepted, Your Honour.
73MR TURNER: That's found in the summary, Your Honour. It appears that he was remanded on the 22nd so - remanded on 12 May 2020 and was released on the - - -
74HIS HONOUR: That is all right. It is accepted that it is 114. I will declare 114.
75Remain standing, Mr Thornton.
Sentence
76Stewart Thornton, I sentence you as follows:
77On Charge 1, blackmail, you are convicted and sentenced to 6 months' gaol, followed by a 2-year CCO with the conditions I have just now outlined.
78On Charge 2, theft, you are convicted and sentenced to 2 months' gaol.
79On Charge 3, Possession of a Drug of Dependence, you are convicted and fined $300.
80On Summary Charge 5, commit an indictable offence whilst on bail, you are convicted and sentenced to 1 month's gaol.
81I direct that the sentences of imprisonment imposed in relation to Charge 2 and Summary Charge 5 be served concurrently with the sentence of 6 months' gaol imposed in relation to Charge 1.
82It follows that I sentence you to a total effective sentence of 6 months' gaol followed by a 2-year Community Correction Order.
83I declare that the time you have served in pre-sentence detention, namely 114days, be reckoned as time served.
84Pursuant to s6AAA of the Sentencing Act, I declare that, but for your pleas of guilty I would have imposed a sentence of 15 months' gaol followed by a 2-year Community Correction Order.
85You can sit down now, Mr Thonton.
86Are there any ancillary orders, Mr Turner?
87MR TURNER: Disposal orders, Your Honour.
88HIS HONOUR: The disposal orders sought by the prosecution will be made by consent, I take it, Mr Waters?
89MR WATERS: Yes, Your Honour.
90HIS HONOUR: All right. Mr Thornton can be removed.
91Thank you both for your assistance.
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