Director of Public Prosecutions v Turner

[2021] VCC 776

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MILDURA

CRIMINAL JURISDICTION

CR 21-00249

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN TURNER

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	11 June 2021
CASE MAY BE CITED AS:	DPP v Turner
MEDIUM NEUTRAL CITATION:	[2021] VCC 776

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr R. Thyssen	Hilton-Wood Solicitors

HIS HONOUR: 

1John Turner, you have pleaded guilty to one charge of blackmail.  That crime carries a maximum penalty of 15 years' imprisonment.  You are 57 years of age.  You have pleaded guilty in circumstances where you have made full admissions to the offending in a position where you need not have and I am sure that those admissions were of assistance to the Crown obtaining these convictions.  Those admissions are contained within a sworn statement. 

2Having read that sworn statement and looked at the evidence relating to the blackmail itself, I am satisfied certainly on the balance of probabilities, if not beyond reasonable doubt almost, that the allegations that you make in that are in fact true.  They are very significant allegations indeed.  You have expressed through your counsel a wish that they be investigated, and I hope that in fact is the case.  You must also of course get the utilitarian benefit of that plea of guilty, which in these COVID times is one of real significance.

3You do have prior convictions.  Indeed, have a suspended sentence for what I understand to be road rage.  You have clearly, certainly over the last few years, have had - and this tends to happen to men in their 50s as I understand it, that the defence mechanisms that you use to fight off things such as PTSD start to waiver and things like anger disorders and such can start to play a part in your life.  That has clearly occurred over the last few years.  You have shown sufficient common sense to endeavour to deal with that and I feel confident that in the future you will also try and deal with that.

4The disposition I am going to give you is, as I have indicated, to that of an adjourned disposition.  It will be with conviction, but it will be for three years.  Bearing in mind that criminal history which is of very recent origin, were you to offend in any manner such as this or by violence, in that three-year period for which it will be in place, you will be brought back before me for re-sentencing and you will appreciate that this would be a very different set of circumstances indeed.  I am going to leave it up to you to get the appropriate treatment.  It is certainly available to you and I am sure that your solicitors, being of great local knowledge, will be able to point you in the right direction.

5A summary of the offending is that the victim was 57 years of age and, as I understand it, is your cousin.  He was self-employed working in the Melbourne central business district.  You were a truck driver living in Mildura.  In July 2018 he received a phone call from an unknown to him female, asking what his name was.  He then asked the female who she was who she told him that it did not matter.  She asked him, Mr Parks[1], if he had lived in Kensington and then he hung up without asking anything further.

[1] A pseudonym

6Later he received a voicemail from you, which I do not know if he knew it was you or not, which said, 'Hey Rock Spider, answer your fucken phone if you know what's good for you cunt, otherwise Crystal[2] is going to the cops, bye'.  There were numerous phone messages left and phone conversations that took place over the next period of time.  In one of them you effectively demanded a sum in excess of $200,000.  I accept that that was not a real demand in terms of getting the money but certainly stills amounts to blackmail within the extended definition of common law of that concept.

[2] A pseudonym

7The first of the messages from you saying, 'Otherwise Crystal is going to the cops', confirms what you said to the police in your sworn statement subsequent to your no comment record of interview.  It is hard to accept that in those circumstances the victim, if he did not know what this was all about, did not then go to the police for about another week after receiving these sorts of calls.  I am not sitting here to make a judgment on that victim, I am simply sitting here as the sentencing judge in your matter making findings of fact which would not be proof of anything in any other courtroom.

8In any event, those conversations kept continuing.  Calls were made to work.  You threatened effectively to ruin his life over the voicemail.  You said things subsequently like, 'You molest a fucking little girl of eight years of age, you fucken can't answer your phone, you fucken Rock Spider cunt'.  All of these voicemails relate to a particular incident which I will refer to in a moment.

9In any event, after about a week of this, Mr Parks contacted police and investigations apparently determined that it was you.  You were then intercepted.  You were interviewed and did a no comment record of interview, which you subsequently explained, and which is your right in any event.

10On 20 January 2020 you voluntarily attended the Mildura police station.  You then made a statement in relation to the offending.  You stated that in about August 2018 you had been speaking to your ex-partner Ali who knew everything and it was agreed to make the call and for her to pretend in fact she was Crystal who is the victim of the incident I will describe in a moment.  You were not present when it happened but Ali told you afterwards about that conversation.

11Afterwards you rang Mr Parks, called him a Rock Spider, said he would lose a heap of stuff.  You said that you had made about eight or nine phone calls, it was clearly more than that, in an attempt to provoke him into admitting what he had done and to get him to know that after all that time he would not get away with it.  You said that part of that provocation was asking for the money and I have said what I have said about that.

12I accept that you did not want any money but were only trying to scare the victim to know that money does not fix the past and to endeavour to get him to make admissions.  That effectively is a charge of blackmail.  Blackmail covers a very, very wide range of conduct.  Usually it is a serious offence.  Obviously you cannot do it, no matter what your sense of justification might be. It calls for the application of general and specific deterrence, an element of denunciation.  Though in your particular situation, your conduct is very understandable I would have thought to the average member of the community for reasons I outline in moment.

13There must be an appropriate punishment and it is very difficult to gauge in circumstances where I regard this blackmail has been very much at the lower end of that crime and the Crown indeed concede that a non-custodial disposition would not be appellable error.  In those circumstances it is a non-custodial disposition that I will be providing - I do have before me a victim impact statement and I take that victim impact statement into account.  I am sure that calls had a very strong psychological effect on that victim, however, I note with some interest, at no point in the victim impact statement does he deny the allegations about what he is said to have done.  Again, that does not prove anything, it just simply confirms in my mind the sworn statement that you made to police.

14Tendered on your behalf were very helpful submissions from your counsel,
Mr Thyssen, as well as a report from a psychologist, a Dr McConkey.  The statement that you made to police on 20 January is a detailed one and describes how when you were about 15 or 16 you came to Melbourne, you believe to watch the cricket which must put it in Melbourne, in the summertime.  You pointed out in that statement that you had previously made a report to police before all this occurred, about being the victim of a sexual assault yourself whilst growing up in Manangatang.

15That sexual assault involved, as I understand, you being raped in your own primary schoolyard.  It is a very significant thing to happen to a young boy and I have got no doubt, as the psychologist said, it has had a very strong influence over a long period of time.  But in any event at the age of 16 during the 80s you were with a friend at the time who was from Manangatang and you were visiting your cousins, a Shannon Parks[3] and - I will supress the names of Shannon Parks and Ben Meyer[4] too.  You went down to watch the cricket so as you say it would have been summertime.

[3] A pseudonym

[4] A pseudonym

16It was in the Kensington flats you remember that you had to go up two flights of stairs to get to it and it overlooked the house next door to the north out of the loungeroom window.  You could see into the backyard and there were chooks and everything and one or two fruit trees.  You do not recall the names of the people who owned the place next door but they had two kids, Crystal and Zach[5].  Crystal was about seven or eight.  You thought their surname was Moore[6] or something similar.

[5] A pseudonym

[6] A pseudonym

17You said that Crystal had blonde-coloured hair just below the shoulders and her brother Norm had nearly jet-black hair.  You said that you were in the flat during the evening.  You were sitting in the kitchen.  Your cousin came in with others and Crystal was with them.  They walked towards the bedroom and you stood up.  You were told by Shannon Parks to stay where you were.  They all went into the bedroom.  You felt that something bad was happening, but you did not really know what to do about it. 

18When you spoke to Crystal the next day you asked her what they were doing in the bedroom.  She told you that she was made to play with, 'Their willies'.  You said you felt angry about that and you are still angry about it to this day.  You do not recall how you got home.  You assume it would have been on the Vinelander.  You said that since that time you have had not much contact with any of them and you said that you had stayed angry about it for a long time and had not told anybody about it until around about 2010.

19You said in 2018 you had been speaking to your ex-partner Ali and I will talk about her in a moment.  She knew all about it.  It was then suggested the call be made to him with her pretending that she was Crystal.  Basically that statement confirms that the first call that was made, her phone call, you said in your statement that she had said that the phone call went like this, 'Is this Shannon Parks?', 'Yes'.  'Did you live in the Kensington flats in 1980?' and he said, 'Yes'.  It was not the situation on your statement that it was hung up after that question.  In your statement Ali then said, 'Do you remember a girl called Crystal?' and that is in fact when he hung up. 

20As I say, that again confirms I think that that incident is true.  In a report of
Dr McConkey I think it is, you describe your feelings and you said that you would never forget the look on that little girl's face as she came out of that room after having been assaulted.  I accept that that is the case, and I will accept that that vision has probably, you being a country boy, haunted you ever since.

21Dr McConkey goes through your family history and I think I can just simply do that off your counsel's very helpful submissions.  You were raised by adoptive parents on a farm near Manangatang.  You went to Manangatang Catholic primary school and I have described what happened there.  After that you went to Swan Hill Tech till year nine.  You did farm work on your parent's property and then you went and did some shearing in Western Australia. 

22You came back to Manangatang to help on the family farm in 1994.  Unfortunately your father was killed in a workplace accident on the farm in 1995.  You described, in certainly the report, that that was one of the happiest times of your life in terms of that time up until your father's death.  It was the closest you had ever been to him and working with him had been a real pleasure to you.  His death came as a dreadful shock to you.  You had two stepsisters at this time.  In any event it ended up with the farm being sold and your adoptive mother moving to Mildura.

23I have been through the fact that you were sexually abused at around about the age of nine and as Mr Thyssen said that has had a devastating effect on your life ever since.  That matter is currently being investigated still as I understand it and I will not take that obviously any further.  As a result of that, and I have just obviously just listened to three victim impact statements saying exactly the same thing about an hour ago.  You have found relationships difficult and never been able to keep a job for more than six months.

24Despite that you have always tried to stay in employment.  You have worked as a truck driver and you are hoping to get a job in Mildura as a delivery driver as I understand it in the very near future.  You are currently single.  Your longest emotional relationship was with Ali who I have referred to before.  She lives in Adelaide.  The two of you were together for approximately two years and in that time you had two children. 

25In terms of tragedy, it seems to stalk you because the first was a girl who died of complication from Down syndrome at six weeks and then a son who died at birth again, as I indicated during the course of the plea.  In terms of PTSD, I think it is probably a complex one.  In any event, they were the set of circumstances that led up to all this.  The psychological report succinctly points out all the matters that I have mentioned.  It just got to a stage where there is ongoing post-traumatic stress symptoms, nightmares, flashbacks, constant guilt that you did not help Crystal, ongoing anger and irritability, inability to sleep, ultimately a cannabis dependence all a result from what happened to you as a - firstly a young boy and then as a young teenager having grown up in the bush. 

26You continue to have difficulties.  You have been placed on antipsychotic medication.  You have been placed on various antidepressants and there has been a number of medications tried over the years and psychological treatment.  You have not experienced any psychotic symptoms but has said that your thinking is consumed by a need of justice for the victim and that that impacts on your behaviour.

27I hope that you realise that there is simply nothing you can do about that, frustrating as that may be and the law will not tolerate vigilante behaviour.  So, you have just got to be very careful that this does not reoccur.  All those matters I have described of the very significant losses in your life.  There is both of your very, very young children.  Unexpected death of your father, the family conflict that followed that and the inability to have a successful or long-term intimate relationship have all added up.

28It is I suppose common knowledge, in psychological terms that men in their 50s tend to lose defence mechanisms that have got them through life up until that point.  And as you understand, I think it is very important that you get assistance at this time in your life so that these thoughts and these patterns do not totally overtake you.  I believe that is very unlikely, bearing in mind you are an intelligent man, that this type of offending will occur again.  I think the prospects of your rehabilitation are very much up to you and I think they are probably already very much underway.

29It is in all those circumstances, bearing in mind the extraordinary nature of all this, that whilst the courts do not tolerate and cannot obviously tolerate vigilante conduct, yours is totally understandable and whilst unlawful, I think is simply you were venting your feelings of frustration and helplessness which I dare say have been existent in you since you were nine years of age. 

30In all those circumstances, and, sorry, I will tender the report of Dr McConkey. 

31#EXHIBIT 1 -   Report of Dr McConkey

32I have summarised it very, very briefly.  There is a lot more information in that that someone with a genuine interest can read for themselves.  I will simply put you on an adjourned disposition.  It will be with conviction, because that is a punishment in itself.  The only condition will be of good behaviour however, it will be an adjourned undertaking of three years' duration, which is a significant period.

33If during that period of time you breach it by committing any offence of a violent or threatening nature and you get brought back before me to be re-sentenced - and whilst some, I do not think many, might regard this sentence as lenient, I think it is the only fair and just one in the circumstances.  But if you do not take the opportunity that the court is giving you and offend in this way again, you are going to be in serious trouble.  All right, you cannot do it again, all right.

34OFFENDER:  No.  No, Your Honour, I won't.

35HIS HONOUR:  Or it will be dramatic, all right.

36OFFENDER:  All I want is justice for that little girl.

37HIS HONOUR:  No, I understand that and I am doing - I am trying to say this carefully as I can, all right.

38OFFENDER:  Yep.

39HIS HONOUR:  That might be what you want and I can understand that has been playing on your mind ever since and I think that in those circumstances, particularly I found your description of the little girl walking out of that room very moving.  And I have to sit here a lot and listen to these things.  I understand all that.  But which is what you have just got to understand, Mr Turner, you cannot do it on your own backwards.

40OFFENDER:  I know.

41HIS HONOUR:  If you do something like this, it can get out of control, you know.

42OFFENDER:  Yep.

43HIS HONOUR:  I do not want you sitting in the nick somewhere, you know, talking to other prisons about when you - what your release date.

44OFFENDER:  Yeah.

45HIS HONOUR:  And neither do you.  And that is not going to help her.

46OFFENDER:  No.

47HIS HONOUR:  All right, now I know she is - I know she committed suicide, I was not going to go into all that detail and I have got no doubt that you regard that suicide as probably - as pursuant to what you, in your own mind did not stop.  I understand all that stuff.  There is not much I can do about it.  I am only an amateur psychologist.  All right, but I hear what you say.  Please hear what I am saying that ‑ ‑ ‑

48OFFENDER:  Yeah, I will, Your Honour.

49HIS HONOUR:  ‑ ‑ ‑ you know, your counsel has been very sensible and so has the prosecutor.  No one is, you know, going to sink the boots into you, but you just cannot do it again, all right.

50OFFENDER:  I know, yep.

51HIS HONOUR:  Fair enough?

52OFFENDER:  Yep.

53HIS HONOUR:  All right, well ‑ ‑ ‑

54OFFENDER:  Thank you very kindly, Your Honour.

55HIS HONOUR:  Righto. All right, so it is an undertaking for three years, good behaviour, yes.  You do not have to come along to court in three years' time unless you are told you have to. 

56OFFENDER:   Yeah.

57HIS HONOUR:  If you breach it, and what I am trying to make clear you understand is not just breaching against this fellow, all right.  Now, I hope that something gets done about that and he gets interviewed, I do not know what they are going to do, that is not my role.

58OFFENDER:  Yeah.

59HIS HONOUR:  But what you have got to understand is something like a road rage would breach it.

60OFFENDER:  Yep, okay.

61HIS HONOUR:  All right, so you are the one that is going to have to do stuff about the anger management stuff.  All right, now I do not know if you have seen a psychologist, but that stuff I was saying about 50s, blokes, the defence mechanisms start to fall over, you get tired, you get old.  You are going to have go and talk to somebody about that, so this sort of rubbish does not happen again.

62OFFENDER:  I'm going to see a psychiatrist for that, Your Honour, and like I say to 'em, unless it's happened to you, they're wasting their time.  You know, like the sexual abuse and that, I've seen heaps of psychiatrists and they all say the same thing, you know, they've – they've been to school and everything.  None of them have been actually sexually assaulted, you know, so to me it's pointless 'cause they really don't know what they're talking about.

63HIS HONOUR:  Can I say this to you, I have got very close friend, female and she is in the same situation.  I do everything I can to help them.  One of the things that I do - I have done, anonymised obviously, but one of the things that I found with her was that I gave her about 10 victim impact statements.  She had been sexually abused when she was very little and through her teenage years and she found reading other people's victim impact statements made her just not feel quite so alone. 

64OFFENDER:  Yep.

65HIS HONOUR:  I understand what you are saying to me, that the psych has not been or if they have they are telling you, but I do not know, it might be of assistance if you have got somebody who can just let you read, I mean, look, you were not in court this morning but the ones that were read out this morning that just - just absolutely what you are saying to me now.

66OFFENDER:  Yeah.

67HIS HONOUR:  You know ‑ ‑ ‑

68OFFENDER:  It's hard, it's hard to find someone.

69HIS HONOUR:  You cannot fix it.

70OFFENDER:  No.

71HIS HONOUR:  All you can do is learn to live with it and that is what I am trying to say to you that even if you cannot - you cannot get that stuff out - it happened to you and - you know, but it has happened to a lot of other people.

72OFFENDER:  Yeah.

73HIS HONOUR:  And if you understand you are not on your own but what you can do is learn anger management stuff so that if you do have those feelings, you do not act them.  That is when you get dragged in here.  I mean you can think what you like, you know, it is not 1984.

74OFFENDER:  Yeah.

75HIS HONOUR:  You can think what you like but the trouble is when you act them act, ultimately, the courts say well hang on you cannot go around doing this, you know, and you end up going through that door.

76OFFENDER:  Backfires and I end up in here.

77HIS HONOUR:  Too right it does, yes, and you have been through one suspended sentence up in New South.

78OFFENDER:  Yeah.

79HIS HONOUR:  You must have given the bloke a fright if you got four months but anyway I will not go there.

80OFFENDER:  Yeah.

81HIS HONOUR:  It is going to do you.

82OFFENDER:  Yeah.  I understand.

83HIS HONOUR:  You do not want to be sitting in, you know Ararat or somewhere at the age of 60, you know.

84OFFENDER:  Yep.

85HIS HONOUR:  Talking to those blokes.

86OFFENDER:  That'd be worse.

87HIS HONOUR:  I reckon it would.

88OFFENDER:  That'd be worse.

89HIS HONOUR:  It is not an experience I am looking forward to I can tell you.

90OFFENDER:  That's what I was worried about today, Your Honour.

91HIS HONOUR:  Yes, look as I say it is - I am not going to put you on CCOs and things like that, I do not think you need them, you are an intelligent man.  All I can ask you to do is you cannot fix that sex abuse stuff. 

92OFFENDER:  Yep.

93HIS HONOUR:  All you can do, and I know it is hard, and the hardest bit - and this is what happens with, certainly with my friend is that when she gets into relationships, about three months in, bang, you know the whole - she freezes up, she tries to ‑ ‑ ‑

94OFFENDER:  I'm exactly the same, Your Honour.

95HIS HONOUR:  Yes, I know, yes, I know what you are saying.  I know exactly what you are saying.

96OFFENDER:  Exactly the same.

97HIS HONOUR:  All right, so that - all you can do is learn to live with it, you know.

98OFFENDER:  Yeah.

99HIS HONOUR:  And as I am saying to you, I am just trying to really drill this home because I do not want to see you again.  Do not act it out.

100OFFENDER:  No.

101HIS HONOUR:  It is the acting out that gets you sitting there, all right.

102OFFENDER:  Yep.

103HIS HONOUR:  Now, I do not know about medications and stuff like that, there is all sorts of stuff you can, you know but and I know with PTSD, yes, well I was saying, well, I mean I know a lot about it and the flashbacks, the nightmares, they just, you know, all you can hope is that as you get older they diminish.

104OFFENDER:  It's a daily occurrence.

105HIS HONOUR:  Yes, I know, I know what you are saying to me.

106OFFENDER:  Thank you.  I appreciate it.

107HIS HONOUR:  All right, good luck Mr Turner.

108OFFENDER:  Thank you so much.

109HIS HONOUR:  Hang on, no hang on we have got to sign this first.  All right, that order is in effect.  Thanks Mr O'Doherty ‑ ‑ ‑

110MR O'DOHERTY:  Thanks ‑ ‑ ‑

111HIS HONOUR:  ‑ ‑ ‑ thanks Mr Thyssen.  As I said, good luck Mr Turner.

112OFFENDER:  Thank you very kindly, Your Honour.

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