Director of Public Prosecutions v Tranter
[2015] VCC 83
•3 February 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL DIVISION
Case No. CR-15-01626
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ASHLEY LEIGH TRANTER |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 8 December 2015 | |
DATE OF SENTENCE: | 3 February 2016 | |
CASE MAY BE CITED AS: | DPP v Tranter | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 83 | |
REASONS FOR SENTENCE
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Subject: Criminal Law- Sentencing- Blackmail and Possess Drugs of Dependence- Community Corrections Order imposed with special conditions- Treat and Community Work Ordered.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Devlin | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr P Smallwood | Kylie Maloney Legal |
HER HONOUR:
1 Ashley Leigh Tranter, you have pleaded guilty before me to one charge of blackmail and two charges of possession of a drug of dependence.
2 In addition, you have admitted your prior criminal record and I note that that is of limited relevance in sentencing you here today. There has been a number of court attendances for various things, for which you have been dealt with in the Children's Court on one occasion and Magistrates' Court on other occasions. You have been fined without conviction, placed on a bond and also had a Community Corrections Order from Maryborough Magistrates' Court which I will refer to later.
3 Your offending is serious and that is reflected in the maximum penalty that is prescribed by law, and that is 15 years’ imprisonment in respect to Charge 1, the blackmail charge, and in respect to Charge 2, because it is accepted that possession of drug was for non-trafficking purposes; the penalty is not more than 30 penalty units or Level 8 imprisonment (one year) and that is in relation to possession of the drug of dependence (methamphetamine). In respect to Charge 3, the maximum penalty for the offence of possession of drug of dependence (cannabis), is a penalty of not more than five penalty units.
4 I shall now proceed to sentence you on the basis of the amended Summary of Prosecution Opening that was read to me at the plea hearing.
5
The context to this offending was that you had met Mr Miller, the complainant, a 73 year old, through a gay website, Gaydar. He had a profile on that site. At the time of the offending, you were only 26, you are now 27. You were experiencing some financial difficulties. When you first made contact with
Mr Miller, he agreed to assist you by loaning you some money. Following that contact, you met him.
6
In March 2014, you moved into his home and between March 2014 and
4 December 2014, he loaned you the sum of approximately $55,000. A dispute arose between you and Mr Miller about repayment of the monies and as a result of the dispute not being able to be resolved, he changed the locks on his property. You had been away from his house for about two weeks, when you returned to the property, and discovered the locks had been changed. After that, you engaged in a series of text messages, that you sent to him, demanding payment of $1,000, accompanied by menace. That is, you threatened him that if he did not pay you the money, you would go to the police and tell them about allegations of him being involved with paying boys for sex. Such allegations being untrue.
7
He replied to your text messages refusing to pay the money. Between
4 December 2014 and 8 December 2014, you sent a total of 17 text messages demanding payment of money on four occasions and threatening to make allegations of sexual offending by him if the money was not paid.
8 On 9 December 2014, Mr Miller reported the matter to the police. Following that, a search warrant was obtained and executed at your then address. During the search of that address, in your bedroom, police located a small amount of methylamphetamine, found in a red canister attached to your key ring and two small amounts of cannabis, a small quantity in a plastic bag located in a packet of cigarettes, and a small quantity in a box of matches.
9
When interviewed, you made “no comment” regarding the offending against
Mr Miller, but admitted ownership of the drugs that were found in your bedroom.
10 Procedurally, I note this matter proceeded by way of a straight hand-up brief and a plea of guilty was entered on 16 September 2015. Therefore, Mr Miller has not had to give evidence and be cross-examined on your behalf.
11 Mr Tranter, the offence of blackmail is a very serious one. Here, it is clear that you intended to obtain money from the complainant. The amount of money sought to be extracted was not large. Even so, your demand was accompanied by menace and it must have been extremely frightening for Mr Miller to have obtained these messages. The offending did not involve physical violence or threats of the extreme kind that are many times encountered in cases of this type. It is significant though, that as a gay person, you threatened your victim with going to police and telling unfounded allegations about Mr Miller, about his having sex with under aged boys and other matters, all of which caused him to be extremely upset.
12 Blackmail is a crime which must be denounced. General deterrence is an important consideration. The crime is one that calls for real, not just nominal punishment.
13 The impact of your offending on Mr Miller has been profound. He read his Victim Impact Statement to court. I do not propose to repeat it verbatim, but I understand that he was very angry at first about your actions because in the past, he had suffered bullying by peers at secondary school, both verbally, physically and sexually and that took many decades for him to overcome and to gain his self-esteem.
14 He was very angry because the allegations you made were untrue and he was also very angry because of the considerable support that he had provided to you, by way of financial assistance that at no stage did you attempt to repay the monies, nor did you attempt to pay any rental for the room that you occupied in his home.
15 He felt he had to stop the blackmail immediately and was very very apprehensive about doing so because of your claims; unfounded claims of sexual abuse and deprivation of your liberty. He knew those claims were very serious, but totally untrue and he felt it difficult to try and convince police and a court about that.
16 Furthermore, he lived in a small country town where he did not want to have to engage lawyers to represent him because of the extra cost and he said one side effect of receipt of these messages was that his stress became great and that aggravated an underlying bad skin condition with the result of which he has had to have some medical treatment and he was also depressed, losing his appetite, losing interest in gardening. His concentration was affected and it impacted on his work. He felt unsafe in his own home and mentally battered and bruised. He had difficulty sleeping at night and had to resort to sedatives to assist him to sleep. So those affects were profound on your victim.
17 As I said before, there is a real need to denounce your behaviour on behalf of the community. Such behaviour is not to be tolerated. You are to be punished for the making of the unwarranted demands with menaces and I make it clear that the sentence to be imposed by me is not in respect to the amount of money that was loaned to you by the complainant, rather it is the making of the unwarranted demand for money associated with the menace.
18 Mr Smallwood, on your behalf, has put many matters in mitigation, all of which I accept. You are a 27 year old man who has had a profoundly difficult background. You now accept the blackmail charge and the facts that form that charge are undoubtedly serious, and that your actions have clearly adversely effected Mr Miller. I note notwithstanding your criminal record, you have not previously or subsequently offended in the like manner.
19 Mr Smallwood provided the court with a report from Mr Warren Simmons, a psychologist. He interviewed you on 20 November 2015 and provided a comprehensive report to the court. He specifically, that is Mr Smallwood, specifically disavowed any reliance on the Verdins principles. He nonetheless submitted that you are a man who presents with significant personality distortions, who has struggled with interpersonal relationships throughout your life and I accept that, having regard to your upbringing, details of which were set out extensively in the report.
20 You had a childhood history where many years were spent in foster care and you have struggled greatly throughout your life with feelings of abandonment and rejection. You have chronic low self-esteem and in the past, you have been diagnosed with depression.
21 Mr Smallwood submitted that your relationship with the complainant was dysfunctional, but notwithstanding the difficulties in your relationship, you do not seek to excuse your offending. You became angry when you realised the locks had been changed and very distressed, and felt that you had nowhere to go. You did not have any other family or friends to turn to, and whilst not excusing your behaviour, I accept that it does provide some explanation for the offending and provides a context for your offending. Since the offending, you have had no contact with the complainant.
22 Your personal history and circumstances are very tragic. You have never known your father. You have always felt rejected by your mother who is now deceased. You had a very difficult childhood where you were taunted by your mother and your brothers were not close to you. You were placed in respite care when you were four and constantly moved from home to home. And as I said earlier, a significant proportion of your childhood was spent in foster care, where you did not have any meaningful, long term close relationships with any person who stood in the shoes of your parents over the many years of your childhood.
23 I accept that in applying the principles of Bugmy v R[1], the majority in the High Court decision, that the effects of profound deprivation do not diminish over time, and that they are to be given full weight in the determination of the appropriate sentence in every case.
[1] (2013) 249 CLR 571 at [42-43].
24 I have also noted your long term history of drug abuse. I note you were introduced to cannabis when you were only 13 and that has been a consistent issue with you ever since and needs to be addressed. In recent years you have also dabbled in using methamphetamines.
25 Mr Simmons the psychologist highlighted your difficulties, and recommended that you have treatment. He confirmed that your diagnosis of depression and he says that you have a long and complex history which requires expert assistance going forward. He noted your previous attempts of suicide. He noted the fact that you have been placed on Mental Health Care Plan that recommends counselling, and medication for depression and drug abuse and he recommended ongoing support for you.
26 I note that your living arrangements have been very unstable with a pattern of frequently living in places involving you not having any stability, and resulting in you moving about frequently. Mr Smallwood confirmed today that you are currently employed and that you have been so since January of 2016 and your employer was present in court this morning to support you. What was the employer's name again?
27 ASSOCIATE: Scholten.
28 MR SMALLWOOD: Scholten, Your Honour.
29 HER HONOUR: Mr Scholten.
30 MR SMALLWOOD: Yes, Your Honour.
31 HER HONOUR: Yes, Andrew Scholten. Schelton or Scholten?
32 MR SMALLWOOD: Scholten, S-c-h-o-l-t-e-n, Your Honour.
33 HER HONOUR: Scholten. Mr Scholten knows you and has known you since early 2009. In addition to a professional relationship with you, he confirms that he acts as your mentor and friend and he is continuing in that role. In so far as your employment is concerned, he confirmed that you are punctual and reliable with respect to your work currently. You are working at a cafe in the Docklands area, working on a casual basis.
34 On your behalf, I accept that you entered a plea of guilty at the earliest stage. I accept the plea has real utility. By your plea, you have spared Mr Miller, the complainant, the necessity of having to come to court to give evidence on your trial. I accept the plea further represents a willingness to facilitate the course of justice and is an acceptance of responsibility on your behalf. Importantly, it demonstrates remorse for your behaviour.
35 I accept Mr Smallwood's submissions in relation to the relevant sentencing considerations being met through the imposition of a Community Correction Order. He highlighted the real benefits that would be offered to you in continuing to engage in such an order. The punishment is real and the Community Correction Order that I have crafted will ensure that you will have to undertake some community work and also undertake counselling and psychological treatment for your issues that were outlined by Mr Simmons.
36 I note that Mr Devlin, the prosecutor, submitted on behalf of the Director that a gaol term was warranted, on the basis that this is serious offending being committed against a vulnerable victim. Notwithstanding that I accept that, I also note that the guideline sentence of Boulton does provide that a Community Corrections Order can be imposed, even in cases that are serious and would otherwise ordinarily have resulted in a gaol term.
37 Following the plea hearing, I sought and obtained a Pre-Sentence Report and as discussed this morning with both counsel, that Pre-Sentence Report is favourable and recommends you as being suitable for a Community Corrections Order.
38 You have been assessed as being a medium risk of reoffending and it is assessed that those risks are associated with your previous criminal history, drug use and family and marital issues.
39 To assist you with any further supports in relation to your past and current drug use, a referral to ACSO/COATS will be facilitated to assess you, to provide a further referral for counselling and also the report confirms that you would benefit from psychological treatment in regards to your underlying childhood experiences. So those recommendations will be put in place in the order that I propose to announce. You are assessed as suitable for a Community Correction Order, with unpaid community work, supervision, assessment and treatment, including testing for drug abuse and dependency, as directed, that is; mental health assessment and treatment and offending behaviour programs as directed. An order will be fashioned in that manner to reflect those recommendations.
40 I accept as a consequence of what has been indicated in the guideline judgment of Boulton v R, that Community Correction Orders have provided sentencing courts with a sentencing disposition, which enables all the purposes of punishment to be served simultaneously, in a coherent and balanced way in preference to imprisonment, which is geared towards retribution and deterrence.
41 In respect to the charges, I will announce my formal orders now. Could you please stand.
42 In respect to Charge 1, blackmail, Mr Tranter, you are convicted and placed on a Community Correction Order for two years from today's date, with the special conditions that you undergo 150 hours of community work, and you undergo programs to address your offending behaviours, psychological and psychiatric treatment as assessed and also, that you be assessed and treated, including testing for drug abuse or dependency and that you be the subject of supervision. That is the sentence in respect to Charge 1. Charges 2 and 3, the two possess drugs of dependence charges, you will be convicted and discharged in respect to both those matters.
43 I make the following declaration, pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, I would have sentenced you to 12 months imprisonment to follow a Community Correction Order of two years duration on the same terms and conditions.
44 I make the disposal order sought and I make the order pursuant to s.464ZF2 of the Crimes Act 1958 that you undergo a forensic procedure.
45 What that means, Mr Tranter, is you will have to be given a cotton bud to place in your mouth for a scraping. I am making that order because of the seriousness and circumstances of the offending. I am satisfied that the order is justified. I note the order was by consent. Finally, I consider the granting of the order is in the public interest. So do you understand that? For the next two years, you will be the subject of a Community Corrections Order. If you were to breach that order, you will be brought back before me and dealt with for that breach and that will be a separate offence. You will be dealt with for the breach offending as well as - you would likely face being resentenced by me for these offences as well.
46 The onus is on you to make the most of the structure that has been put in place to assist you, so as you stop your criminal offending and to assist you address your underlying issues related to your past, all right? Have we got the fresh orders for me to sign? Yes, you do? All right. You will have to go - is he still living in the Maryborough region?
47 MR SMALLWOOD: Yes, Your Honour.
48 HER HONOUR: Very well. He will have to go to the police station in Maryborough for his forensic procedure, Mr Smallwood?
49 MR SMALLWOOD: Yes, Your Honour.
50 HER HONOUR: Very well. If you could just get him to do that in the next day or so and that is over and done with. All right, I will just get you to sign this Community Correction Order. It is a formal acknowledgement that you understand the affect and conditions of the order, and that you consent to it being made and Mr Smallwood will explain that to you if needs be, thank you.
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