Director of Public Prosecutions v Turner
[2018] VCC 1355
•28 August 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 17-02510
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAYDEN TURNER |
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| JUDGE: | HER HONOUR JUDGE CANNON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 April, 13 June and 16 August 2018 respectively |
| DATE OF SENTENCE: | 28 August 2018 |
| CASE MAY BE CITED AS: | DPP v TURNER |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1355 |
REASONS FOR SENTENCE
---Subject: CRIMNAL LAW
Catchwords: Sentence – Pleas of guilty – Blackmail – Fail to answer bail- Grave breach of trust – Concerning criminal history – Substance abuse issues – Mental health issues
Cases Cited: Aitken v The Queen [2017] VSCA 103
Sentence:Convicted and sentenced to Total Effective Sentence 18 days’ imprisonment together with a Community Corrections Order of 2 years duration with mandatory and additional conditions – Ancillary orders – Forensic Sample Order – Forfeiture Order – Pre-sentence detention of 18 days’ imprisonment declared as having already been served – s.6AAA Sentencing Act 1991 declaration made
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Bruhn | Solicitor for Public Prosecutions |
| For the Accused | Mr C. Terry | Matthew White Associates |
HER HONOUR:
1Hayden Turner, you have pleaded guilty to one charge of blackmail, which has a maximum penalty of 15 years' imprisonment. You have also pleaded guilty to the summary offence of failing to answer bail which has a maximum penalty of two years' imprisonment. The maximum penalties reflect the seriousness with which parliament regards these offences and the manner that I must take into account when sentencing you. I was told that you were 26 years old at the time of the offending and that you are now 27. The victim of your offending is your mother, Ms Michelle Mills.
2On Friday, 25 August 2017, at 7.11 am, the victim received a text message on her mobile phone from your mobile phone which read: "Good morning Michelle, you don't know me and I'll give you one chance to do the right thing, as I have him captive in the backroom of my house. He owes me rather a fair amount of time and has had months of notice and he's avoided us. We know where you live and if you don't pay attention to what I'm about to say, I'll leave your son dead on your doorstep naked, with either a gunshot in him or slit his throat.”
3"I'm related to a lot of people in the underworld and we have done this before. He owes Josh $1,356 and has for a long time, as Josh only just got out of gaol and has told me. I have his wallet and he will be telling me his pin number. You have till 8.30am to put $1,200 in his account so I can give it to my brother or you'll never see your son alive again. Next time you'll see him is naked, dead on your front doorstep like I've explained. Do not contact the police. We have contacts very high up and we will have no problems shooting Hayden, first report that we get, if you contact anyone that reports this.”
4"If you want proof of him tied up, I'll happily send you a picture to prove we don't fuck around. My uncle and his MC will support this 100 per cent. 1 Sabina Road, Officer is your address. You have until 8.30am or by midday, he will be lying out the front of your house dead. Don't fuck with us, Michelle. Do not involve anyone or it will be the worst thing for your son. Chat soon, Phuong."
5When your mother received this message, she thought that you were in grave danger. She felt sick and was shaking and crying, then rang her husband who was at work and sent him a copy of the message. He rang straight back and said she should ask for a photo to prove the content of the text message. At 7.49am, the victim sent a message to your phone saying that they wanted a photo. At 9.18am, the victim received a reply stating, "Not problems at all, Michelle." And a picture message was then sent. The picture showed a person's body which had been bound with tape over the person's mouth.
6The victim believed that this was a photograph of you. At the time the victim received the photo, she was with a friend. She was convinced that you were hurt, and was shaking and crying. At 9.21am, the victim received a text message from your phone saying: "Is that what you want? It is now after
8.30am. What is your decision? Money or his life?" At 9.26am, the victim receives another message from your phone saying: "You got your photo Michelle, what's the next move?" At 9.28am, she received a further text message from your phone saying: "We aren't fucking around, Michelle. Would you like us to come to your house?" At about 9.30am and 9.33am, the mother received missed calls from your phone number.7Shortly after this at 9.35am, the victim received a text message from your phone number which said: "Okay, have it your way. Midday he will be dumped at your front door. You could have avoided this." At 9.47am, the victim received another text message saying: "You really love your son, don't you, Michelle? No problems, we'll make an example of him for you." At about
9.57am, the victim received another text message reading: "We will call your work. Coral Park Primary School. Am I correct?"8At about 10.00am, the victim attended a local police station with her friend for support. She was extremely distraught and explained to the police what had happened. Just after she arrived, she received another message from your phone saying: "Or we will just empty your house of all its expensive belongings. Your choice." At about 10.10am, the Armed Crime Squad was contacted to provide assistance in locating the offender. At about 11.27am, the victim's phone received a missed call from your phone.
9At about 11.28am, the victim's phone received a message from your phone saying: "Mum it's Hayden, I'm trying to call you. I have to talk to you. I'm going to get seriously hurt here if you don't help me." At 11.48am, the victim's phone received a call from your mobile phone number but the victim did not answer and no message was left on voicemail. At about 12.50pm, police received information from the Armed Crime Squad that you had been found and were safe. However, police formed the view that you had fabricated the scenario and had sent the text messages as part of a hoax.
10At about this time, police found a photo on the internet which was similar to the image that you had sent to your mother. At about 1 pm, police attended a local train station and found you with a Ms Charity Kerraford in the first carriage. You were both removed from the train and you were placed under arrest and cautioned. A search was conducted and your mobile phone was seized. You and Ms Kerraford were both taken to the local police station. You were drug-affected and erratic. You told police that you had used ice in the last 24 to 48 hours.
11A forensic medical officer was arranged to assess you. At about 4 pm, the forensic medical officer assessed you as being unfit to be interviewed and also arranged for a psychiatric assessment. At about 7 pm, you were taken to the Casey Hospital emergency department for a mental health assessment and you were admitted to hospital as a voluntary patient. On 5 September 2017, you were arrested at Casey Hospital and cautioned, and your rights were given. You were taken to the local police station for interview.
12During the interview, police asked you to explain your knowledge of what had happened on 25 August 2017. Your responses included the following: That you had been tied up for a couple of days, that you had been up for a couple of days smoking ice with your friend Charity and had been asleep until 9.15; and to quote you, "Any time before then, I could've done anything pretty much. It's just yeah - it's just what happens when I stay up for a few too many days and don't take my medication."
13You said that after you had woken up on 25 August, you were mentally unwell and had been off your medication so you were on your way to Berwick to go to hospital. You said you remembered sending one text message to your mother, to quote you, "'Cause I know I'm in trouble and with somebody. I do owe somebody some money so I did send her a text message and asked her if she could give me some money to pay. I did - I do remember that, sending that text message." You said that you sent this on the train.
14You did not wish to provide the name of the person you owed money to and said that your phone had been playing up and then said that somebody could have hacked into your phone or you could have written the messages yourself. You said that you did not know, that you had been up for a few days so your memory was pretty vague. You said that you were asking your mother if she could lend you some money.
15You said: "She usually lends me money every now and then. Like, she paid for my hotel, she paid for my food. She brought me clothes, shower - like shower gel, fucking shampoo, cigarettes, money. If my mother was trying to say that I did this, I don't understand why I would do this when I got all the support in the world from her."
16Further, you said that on previous occasions, your mother had helped you by giving you money, including for drug debts. You said that your mother had been aware of previous threats that you experienced. When asked by police how the messages would have made your mother feel, you said: "Pretty distraught, very distraught actually. Very, very distraught as it would with any mother, any parent in general."
17You accepted there was a possibility that you had sent the messages as you were mentally unwell and had taken illicit drugs. You said you could not recall because you could have been in some form of an episode. You said that if the memory of having committed the offence came back to you, then you would do the right thing and put your hand up. But for the time being, you did not recall.
18You were charged and bailed to appear at Melbourne Magistrates' Court on
5 September 2017 for a filing hearing. However you failed to appear and a warrant was issued. The warrant was executed and a filing hearing took place on 18 September 2017.19Mr Turner, I regard your offending as serious and deserving of a punishment which is just in all of the circumstances. Your conduct must be firmly denounced and strong weight ought attach to general deterrence in a bid to deter others from behaving as you have. You took advantage of your mother's love for you and her decency, subjecting her to the most terrifying ordeal, so that you could extract money from her. Your behaviour was despicable. I find it difficult to believe you did not recall what you had done in circumstances where the messages are most detailed and show a good deal of calculation and cunning.
20When further explored, it was not the case that your mother would lent you any further funds at all and it seems to me that you well knew that to be the case, which is why you embarked on this dreadful behaviour. In this regard, the learned prosecutor pointed to your mother's statement where she had paid for a hotel room so that you could leave her house, as you were taking drugs. However she had refused you further funds at a time shortly before this offending. While in the past, she had financially supported you and assisted you with debts, at the relevant time, she was not willing to do so, other than to provide you with accommodation in a hotel.
21In assessing the objective gravity of your offending, I have had regard to the factors referred to in Aitken v The Queen [2017] VSCA 103. Albeit that this was an exhaustive list of factors to take into account. I have factored in that the offending took place over a relatively short period, albeit there was a dreadful intensity involved during that time. There was a degree of planning involved, which was evident from what was said in the initial message, the image that was sent from the internet, and your awareness that you ought not answer the phone at any stage so as to give yourself away.
22However, I accept that the degree of planning was not overly elaborate. The method of communication was via text message. Although I must say that in the context of the present case, I am unable to see how the method of communication is material. False accounts were not created to subvert attempts to block communication between you and the victim, although steps were taken to ensure that your mother did not discover that you were on the other end of the phone, unless it suited your purposes.
23I also take into account that there was one victim of the blackmail, although some of the threats were passed on by the victim to her husband and to her friend. There was no use of a weapon or threatened use of one; nor was there physical intimidation. However you clearly sought to threaten and intimidate your mother by pretending that you would be seriously harmed, that you are aware of the victim's home and work addresses, and you also threatened to empty her house of all its expensive belongings.
24Insofar as the relationship between the parties is concerned, you are clearly in a position of trust, insofar as your mother was concerned. No doubt she trusted you not to behave in the way that you did. In addition to the matters which were detailed in the list set out in Aitken v The Queen, I would have thought that the nature of the threat itself would be an important one, although aspects of it are picked up from some of factors enumerated. In your case, the nature of the threat was a most distressing one as previously indicated.
25Whilst it may well be so that there are worse examples of blackmail, in my view, your offending is objectively quite serious. There is no victim impact statement in this matter. However it is clear from your mother's police statement that your mother was devastated that you could behave like this toward her. She said that she had been in fear for her own life and your life as well, as the lives of her other children. She said she felt embarrassed and ashamed. She said that she has felt that she is now experiencing grief and that she feared for her own safety and the safety of her family in view of what you had shown you are capable of.
26Mr Turner, these are the real effects of what you did on that day. And I take these into account when sentencing you. You have a fairly concerning criminal history which commences in 2008 in the Dandenong Children's Court. On
18 July 2008, you were convicted of a number of charges including robbery, intentionally causing injury, obtaining property by deception, two charges of unlawful assault, two charges of theft of a motor vehicle, and a number of other charges in the nature of driving and public transport offences.27You were convicted and placed on a 12 months' probation in order to take part in counselling as directed. You later appealed this sentence but it appeared that the same sentence was imposed. On 29 August 2008 in the Children's Court, you were dealt with for driving offences including exceeding a prescribed level of alcohol and placed on a good behaviour bond. On 10 July 2009 in the Dandenong Children's Court, you were dealt with for theft and released on an accountable undertaking for two months to be of good behaviour. In the Dandenong Magistrates' Court, on 31 March 2011, you were dealt with for theft and recklessly causing injury. Without conviction, you were fined an aggregate of $1,500.
28On 8 August 2013, you were dealt with for unlicensed driving, failing to render assistance after an incident and other driving offences. You were convicted in order to undergo a 12-month community corrections order, which had drug treatment and mental health treatment conditions attached. On 11 November 2014, you were dealt with for breaching the community corrections order and you were placed on another community corrections order with treatment conditions.
29On 4 February 2016, you were convicted with unlicensed driving and drive whilst disqualified. You were granted a community corrections order for four months. On that same day in the Moorabbin Magistrates' Court, you were dealt with for contravening the community corrections order which had been imposed on 11 November 2014. The original order was varied, such that you were still required to undergo assessment and treatment for drug dependency and mental health, as well as offending behaviour programs.
30On my reckoning, that order expired on 3 February 2017. According to the report from community corrections, now received, you contravened community corrections orders to which you were subject between 2013 and 2017. However the offending before me did not breach a community corrections order. Having said that, you committed the offence for which I now sentence you, about six months after the last community corrections order expired.
31I take into account your background. You were born in New Zealand but moved to Australia with your mother and stepfather when you were five years old. Your biological father separated from your mother when you were only three months old. I understand that their relationship was a violent one. You have had very limited contact with your natural father since then. Your mother re-partnered with an Australian man. They have two children, your half-sister is nine years old, and your half-brother is 14. You lived in the Clayton Area throughout primary school years, then moved to Canberra with your family in the early part of high school years.
32You then moved to New Zealand to work on a crayfishing boat for three months, after spending time in youth detention on remand in your late teenage years. Subsequently, you returned to Melbourne and lived with your family in Narre Warren. From the age of 18, you have been a regular user of drugs and alcohol. You have abused methyl amphetamine and alcohol for about ten years, and cocaine on occasion during this period. I understand that the offence for which I now sentence you was committed in the context of a period of heaving methyl amphetamine use, but since the offending in 2017, you have taken steps to change your circumstances, obtain accommodation and cease drug use.
33You obtained work as a truck jockey in an interstate removalist company in January 2018 and relocated to Sydney. This was in breach of your bail conditions. However you subsequently returned to Melbourne and your bail was varied, so as to allow you to work in Sydney. I was told that you have held full-time employment since the start of 2018 and have remained free of methyl amphetamine, at the very least. But I understand that you might be still taking cannabis.
34You left school when you were only 14 years old, then worked in various and adverse areas. You worked in roof tiling, concreting, bricklaying, hairdressing, as a bartender - sorry, as a bartender and bar manager, as well as in nightclub management. However you have not been able to sustain employment for substantial periods because of your mental health and substance abuse issues. However, you have been able to obtain employment for a good deal of your adult life, albeit that you have been unable to maintain any particular job for any lengthy period.
35In your favour, I allow for a significant discount in the sentence you would otherwise receive, because of your early plea of guilty. In taking this course, you have saved the witnesses, especially the victim, the time and trouble of giving evidence, and you have saved the community the time and expense of contested proceedings. You have expressed remorse to Pamela Matthews, psychologist, and expressed some remorse in the record of interview also. I accept that you are remorseful for what you have done, although I regard your level of insight as a work in progress.
36Your counsel have told me that you have previously been diagnosed with having borderline personality disorder and bipolar disorder, although there was no clinical confirmation of these diagnoses. You have reported previous symptoms of auditory hallucinations, depression, and hypermania. Although again, there was no clinical confirmation of these. Ms Matthews postulated that you may have been suffering from drug-induced psychosis at the time of the offending for which I now sentence you.
37However it seems to me that there was a good deal of calculation and deliberation about what you did. I was told that despite your history of heavy and regular drug and alcohol abuse since the age of 18 years, you have now been able to abstain from drugs for the longest period since turning 18.
Ms Matthews, psychologist, said that your current progress was an exceptional contrast for the past ten years and made a recommendation in a relation to a disposition which although reflective of her view, is ultimately a matter for me.38I adjourned the matter in order to obtain a Forensicare report concerning your mental health as I have been rather troubled by some aspects of you conduct, and wished to gain a better understanding of your mental health and also give you an opportunity to demonstrate your capacity to maintain employment and abstention from drugs and alcohol. I have now received a Forensicare report prepared by Dr Abiyanayaka, psychiatrist, dated 14 August 2018.
39He was of the view that at the time of the offending, you were not suffering from "serious mental illness like schizophrenia, bipolar effective disorder nor major depressive disorder". He also said that you were not suffering from a drug-induced psychosis at the relevant time. However Dr Abiyanayaka said that at this time, you were likely suffering from "psychological consequences of trauma, PTSD, in the context of borderline personality traits and multiple psychosocial stressors.” (see paragraph 150)
40He said that the effect of the drugs that you had in your system at the relevant time were likely to have caused a delirium which would have caused you to be disinhibited and have significantly impacted on your ability to make calm and rational choices, or to think clearly. At the time of seeing Dr Abiyanayaka, you reported being drug-free, save for using cannabis on a weekly basis and alcohol daily. At the further hearing, I was told that you had moderated your alcohol intake.
41In view of the myriad of substances you have abused in the not too distant past, this is a vast improvement but you still have a way to go. You need to reach a stage of being drug free in order to help properly address your tendency to commit criminal offences. Your counsel said that he did not seek to rely on any Verdins principles. However the learned prosecutor submitted most fairly that there was evidence in the Forensicare report which supported the contention that time in custody for you would be harsher because of symptoms of PTSD which you are found to be suffering from. I accept this submission and have taken this into account when sentencing you.
42I have taken into account the report of Ms Matthews, psychologist, as a whole insofar as I can. I have also taken into account the Forensicare report in a general way. At the further plea hearing on 16 August, your counsel updated me in respect of your situation. I was told that you are now living in Melbourne and working as a labourer at a hostel where you also live. He read to me a letter from the manager of the hostel. He spoke well of you and said that you have paid your rent on time and obeyed all the hostel rules, which is to your credit. Unfortunately, I was not provided with drug screens which were supposed to happen in the period between the last hearing and a further plea. But I accept you are not consuming anything other than alcohol and cannabis.
43In all the circumstances, I assess your prospects of rehabilitation as guardedly fair and I place moderate weight on specific deterrence and the need to protect the community. I place strong weight on general deterrence in a bid to deter others from offending in the way that you have. Your counsel had submitted that in view of your progress, it was appropriate to either defer sentencing or impose a community corrections order and sentence you to a period of imprisonment, reflective of the 18 days you had already served. In submitting that a community corrections order was appropriate, your counsel referred me to some other cases, indicative of current sentencing practice although contrasting the seriousness of some of these with your offending.
44The learned prosecutor also provided me with the sentencing decision of this court which involved similar offending to yours and where a four-year community corrections order was granted. Although she pointed out that the offender in that case had no criminal history which is not your situation. While this is a case which is relevant with current sentencing practice, it is but one case and in any event, the current sentencing practice is but one factor to which I must have regard in sentencing you. The Crown submitted that in all the circumstances, a community corrections order in combination with a term of imprisonment was appropriate but did not concede that the time you had already served was sufficient.
45Community Correctional Services (CCS) expressed concerns, quite understandably, that you have breached two community corrections orders in the past, but have indicated that you are suitable for a community corrections order on this occasion. I must say that I hear the concern of CCS, but in your case, in view of your positive progress in even more recent times, I am of the view that it would be taking a backward step in your rehabilitation if I were to send you back to gaol. I can do justice for all relevant sentencing principles and the weight that I apply to these, by imposing a suitably crafted community corrections order.
46But make no mistake, Mr Turner, if you breach the community corrections order by committing further offences or by non-compliance, in all likelihood, you will be returning to gaol. Do you understand that?
47OFFENDER: Yes, Your Honour.
48HER HONOUR: You are convicted of the offences, that is, the offence on the indictment and the summary matter. I make the forfeiture order sought by the prosecution which is not opposed by you. I make the forensic sample order, sought by the prosecution, being a sample to be obtained by a buccal swab from the mouth. Because of the seriousness of the offending, your criminal history, because the order is not opposed by you and because it is in the public interest to make the order. I warn you that if you do not co-operate in the taking of the sample, then the authorised officer or officers may use reasonable force in order to obtain the sample.
49In relation to the summary charge, you are sentenced to 14 days' imprisonment. In relation to the charge on the indictment, you are sentenced to 18 days' imprisonment, in combination with the community corrections order which will run for two years from today. I declare that you have already served the total effective sentence in terms of imprisonment of 18 days by way of pre-sentence detention. I am about to place you on a community corrections order, but I can only do this if you agree to the terms and conditions of the order. So please listen carefully to the order that I propose.
50The community corrections order would run for a period of two years, that is, from today. The conditions of the community corrections order would be as follows: The mandatory terms that apply to all community corrections order which are, you must not commit another offence for which you could be imprisoned during the time that the order is enforced. You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011.
51You must report to and receive visits from the Secretary to the Department of Justice, or his or her delegate. You must report to the Collingwood Neighbourhood Justice Community Corrections Centre before 4 pm within two clear working days of today. If I were you, I would get there by tomorrow. You must let a community corrections officer know within two clear working days of you changing your address or job. You must not leave Victoria without first obtaining permission to do from the Secretary to the Department of Justice, or his or her delegate. You must obey all lawful instructions from and directions of the Secretary to the Department of Justice, or his or her delegate.
52The conditions that apply in addition to the mandatory terms are: Firstly, you must undergo 150 hours unpaid community work within the next two years, but you may offset up to 50 hours of this condition by the successful completion of hours of any of the treatment and rehabilitation conditions of this order. You must be under the supervision of a community corrections officer for a period of two years. You must undergo assessment and intensive treatment, including testing for drug and alcohol abuse or dependency as directed by the regional manager.
53You must undergo mental health assessment and intensive treatment, including but not limited to, mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility if necessary, as directed by the regional manager. You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the regional manager. You must attend at court to be monitored by me when required to do so. Ahead of each appointment, I will receive a report from Community Corrections in respect of your progress and we will discuss this at those appointments.
54Your first judicial monitoring appointment will be on Monday, 24 September 2018 at 9.30 and I will be closely checking your progress, all right? If you wish to vary any of the conditions of the order, then you must apply the court to do so. Now, do you consent to the terms and conditions of the order?
55OFFENDER: Yes, Your Honour.
56HER HONOUR: I should tell you that if you do not comply with all of the requirements of this order, then you will face breach proceedings before me. You will then be sentenced in relation to the breach and you will be resentenced in relation to the charges. In which case, you may well be sentenced to a period of imprisonment. I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order. Do you understand this? Do you still consent to the order?
57OFFENDER: (No audible response).
58HER HONOUR: I have to hear you say yes.
59OFFENDER: Yes.
60HER HONOUR: All right. Therefore in relation to the charges that I have previously referred to, you are convicted and sentenced to 18 days' imprisonment - sorry it is in relation - I should say in relation to the charge on the indictment, you are convicted and sentenced to 18 days' imprisonment and to the community corrections order in the terms that I have just set out. If not for your plea of guilty, I would have sentenced you to a total effective sentence of 4 years' imprisonment with a non-parole period of 3 years. Take a seat for a moment, I will ask your counsel to assist you in the signing of the community corrections order. Anything further, counsel?
61MS BRUHN: Nothing further, Your Honour.
62MR TERRY: No, Your Honour.
63HER HONOUR: All right. Thanks. Well, all the best, Mr Turner. Just stick to that progress you are making. You got to get off the cannabis.
64OFFENDER: Yeah.
65HER HONOUR: I hope to read just good things in that progress report when we have our chat on 24 September, all right?
66OFFENDER: No worries, thank you, Your Honour.
67HER HONOUR: Yes, thanks. We'll adjourn.
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