Director of Public Prosecutions v Umbridge (a pseudonym)

[2024] VCC 1767

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

NEIL UMBRIDGE (A PSEUDONYM)

---

JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	26 August 2024
DATE OF SENTENCE:	6 November 2024
CASE MAY BE CITED AS:	DPP v Umbridge (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1767

REASONS FOR SENTENCE

---

---

Subject:  CRIMINAL LAW

Catchwords:                   Sentence – Blackmail – Robbery – Trafficking Drug of Dependence – Guilty Plea

Legislation Cited:         Sentencing Act 1991 (Vic) ss 6AAA

Sentence:  Sentence of 33 months imprisonment.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Borg	Office of Public Prosecutions
For the Accused	Mr J. Portelli

HIS HONOUR: 

1Neil Umbridge,[1] you have pleaded guilty to one charge of blackmail for which the maximum penalty is a term of imprisonment of 15 years, one charge of robbery for which the maximum penalty is a term of imprisonment of 15 years, and one charge of trafficking in a drug of dependence for which the maximum penalty is a term of imprisonment of 15 years.

[1] A pseudonym.

2Tendered as Exhibit 1 on your plea was a summary of prosecution opening which set out the agreed facts of your offending and in brief the circumstances were as follows:

3In the early morning of 25 June 2023, your victim, Mr Damien Roche,[2] a 34-year-old Columbian national who was here in Australia to study, got off a tram in Bourke Street in the CBD.  He was with an acquaintance and the pair were headed to Mr Roche’s apartment.  You asked Mr Roche for a cigarette and struck up a conversation with him.  You were then invited back to his apartment and all three of you walked to the apartment, arriving there around 7.30 am.

[2] A pseudonym.

4I note that there are different perceptions and therefore different recollections as to the circumstances of your invitation to Mr Roche apartment, whether for sexual interaction or simply to provide methamphetamine.  I am not asked to make a determination, and this is due to both the sensible and commendable approaches taken by both parties in seeking to resolve that matter. I make clear, that has resounded to your benefit, Mr Umbridge.

5It is your conduct once you and Mr Roche were alone in his apartment that underpins the charges on this indictment.

6There were also different recollections as to what precisely occurred once inside the apartment, and most relevantly, as I raised on the plea, it is not suggested that Mr Roche was targeted by you on the grounds of his sexuality. If that had that been the case, it would have been altogether a far more serious matter. 

7The acquaintance left Mr Roche’s apartment after approximately five minutes, and you began using Mr Roche’s laptop after being given the password.  You began smoking methamphetamine which you shared with Mr Roche, (Charge 3), until he asked you to stop smoking due to his concerns that you might set off the smoke alarm.  You then asked for Mr Roche’s phone, which he gave you, as he was unsure as to what your reaction would be if he did not.  Using his face ID, you unlocked the phone and looked through Mr Roche’s social media and other applications.

8Mr Roche by this time had undressed and was naked.  You then recorded him in sexualised poses using his mobile phone and then said, 'You have to pay me for being here.'  You also unlocked Mr Roche’s bank accounts, again using his face ID.  Mr Roche was by this time feeling somewhat apprehensive about your presence in his apartment.

9You then picked up his laptop, his wallet containing ID and bank cards, and a blue Adidas bag.  You also took various items of Mr Roche’s clothing, including a Tommy brand blue jacket, Superdry jacket, a black pair of pants, a pair of Nike flipflops. 

10Concerned by your presentation and fearing what your response might be, Mr Roche did not try and stop you.  Mr Roche asked you to leave and shortly after you left the apartment taking the items with you.  This is Charge 2, robbery.

11On Tuesday 27 June, Mr Roche purchased a new phone and SIM card, keeping his old number for this new device.  That same day he received a phone call from an unknown male on mobile number ending in 290.  Mr Roche told the male that he had lost his phone and asked for help to recover it, and then the call disconnected.

12On Thursday 29 June 2023, Mr Roche received a call from the same number, and an unknown male stated he was going to help Mr Roche and asked to meet him.  Mr Roche refused to meet that caller.

13On Friday 30 June 2023, at around 2.00 am, Mr Roche received an electronic message from his mother in Columbia stating that she had been sent a sexualised video of him from a number ending 572. This was the recording made by you of Mr Roche in his intimate posing.  Mr Roche immediately called that number and recognised the voice on the other end to be yours.  You told him to pay you $5,000 or you would share the intimate photos and videos that you had found on his stolen phone, with everyone on his WhatsApp account contact list.  That is Charge 1, blackmail.

14Mr Roche begged you not to share the content and asked to meet you so that he could pay you the $5,000, but you insisted on payment using PayID.  Mr Roche went straight to the Melbourne East police station to report the matter.

15CCTV footage from the apartment complex depicted you leaving Mr Roche’s apartment at 10.57 am on 25 June 2023, that is on Sunday morning, carrying clothing and other items that were not originally in your possession.  Police checks confirm that the phone number ending 572 was held in Mr Roche’s name and had been activated on 28 June 2023, three days after you had taken his phone and wallet containing the documents.

16Call records for that 572 number showed multiple calls to a phone utilised by Lisa Umbridge,[3] your mother, and thus confirming your identity.

[3] A pseudonym.

17On 6 September 2023 you were arrested at Dandenong railway station, taken to Dandenong police station where you participated in a record of interview.  You denied contacting Mr Roche’s family or making any demands for money but admitted to sending the video out of spite.  You also admitted to selling methamphetamine to Mr Roche, (Charge 3), and to taking clothing and an iPhone as payment for $50 worth of methamphetamine.  You admitted to making threats to Mr Roche stating that you were going to bash him, 'And I think I yelled at him saying I will punch you in the face.'

18Exhibit 4JS on the plea was a report from Ms Carla Lechner, psychologist, dated 7 May 2024.  Exhibit 5JS was a neuropsychological report from Dr Loretta Evans dated 10 July 2024.

Personal Circumstances

19You were born in June 1989 and are now aged 35 and were 34 at the time of this offending.

20You were the eldest in a sibship of three and grew up in the Deer Park area of Melbourne.  In your early childhood there were times when both your parents were in custody and you would be looked after by your grandfather whom you described as 'a very, very scary man.'

21Your father tragically died from a brain haemorrhage when you were 11.  You discovered his body and report trying to wake him up thinking he was asleep.  Prior to his death he had been in treatment.  Whilst he was in hospital you and your sister were placed in the care of a family friend, at whose hands both of you were the victims of serious sexual assault.  You identified that the perpetrator was acquitted, an event which you describe 'as the start of everything going downhill.'

22Your mother struggled to cope after your father's passing and the family moved frequently.  Unsurprisingly, you made few friends and were bullied at school, leaving education mid-way through Year 8 with basic literacy skills.  When you were 15 your mother, believing you had bipolar disorder like your grandfather, sought medical advice and you were prescribed Xanax for depression and anxiety.

23Upon leaving school, in your words you 'smoked choof, mixed with the wrong people and did a lot of crime.'

24You have very limited employment history and have long been in receipt of disability support pension.  You have, however, struggled to maintain housing and have a long-term history of homelessness.

25In 2020, whilst asleep on the street, you were the victim of an unprovoked attack, leaving you with lasting trauma both emotionally and potentially cognitive.

26You have had one long-term relationship with Louise,[4] with whom you cohabited and with whom you took lots of drugs.  The relationship produced a daughter, Ella,[5] who is now aged eight.  Since Ella’s birth you and Louise have not lived together as Louise ceased drug use and you did not.  You describe Ella as the best thing that has happened to you, yet you do recognise that your continued drug use is the biggest barrier and obstacle to a meaningful familial relationship with her.

[4] A pseudonym.

[5] A pseudonym.

27You report now being close to your sister, Rachel.[6]  Tragically, again, your brother Alan[7] died a drug-related death a couple of years ago. 

[6] A pseudonym.

[7] A pseudonym.

28Your mother died in July 2023.  She had been suffering from cancer for many years, during which time you had been a primary carer when capable of being so.  The exact circumstances of her passing are not clear, and this has only added to the grief and trauma at losing a parent to whom you were very close.

29As to your substance use history; you began chroming at the age of 11, smoking cannabis regularly from the age of 13.  You were stealing your mother's morphine, part of her cancer treatment, at the age of 14 and by 17 were a daily heroin user. 

30When in Youth Justice you were placed on pharmacotherapy.  You then substituted methamphetamine for heroin in addition to using benzodiazepines. 

31You attempted suicide at the age of 18 during a drug-induced psychosis.  You are currently prescribed 90 milligrams of methadone as part of pharmacotherapy within the custodial setting, and also prescribed the antidepressant, Lexapro, of which you state: 'It helps a bit, I can talk to you properly, work and socialise, otherwise I'm a mess with anxiety.'

32Since 2009 you have been dealt with by means of youth detention, terms of imprisonment, (both suspended and immediate), and community-based orders, for multiple offending including dishonesty, proceeds of crime, possession and cultivation of drugs of dependence, possession of controlled weapons, assault, criminal damage, perjury, driving and registration offences.

33The longest prison term that you have received was a term of 260 days, expressed as time served, with a community corrections order of six months duration on 9 October 2020, for offending which included attempted robbery. 

34Relevantly, I find every community order has been contravened by on order offending, resulting in either the order's cancellation or its variation.  Now whilst of course you do not fall to be dealt with again for matters already dealt with by the court, your prior criminal history does impact my assessment of the need for specific deterrence, your moral culpability, your prospects for rehabilitation and the need to protect the community from you.

35This index offending, as Ms Borg submitted, represents a concerning escalation not only in the gravity but also the nature of your offending.

36Ms Lechner, (Exhibit 4JS), was of the opinion that you presented with symptoms of complex PTSD arising from childhood trauma; a major depressive disorder, and various substance use disorders which are currently in remission in a controlled environment and with pharmacotherapy.

37Your complex PTSD has undermined your emotional, social and vocational development.  You have had very limited engagement with the workplace, have suffered long-term homelessness and have been in and out of custody numerous times.  You impressed her, in the literal sense of that word, as 'socially, emotionally and cognitively immature with a limited capacity to engage in reflective and consequential thinking due to his negative lens on the world and on himself.'

38Dr Evans, Exhibit 5JS, did not find a neuropsychological pattern of global cognitive deficits to indicate a substance related brain injury.  However, your  lower than expected verbal memory functioning, slow processing of incoming verbal information and markedly compromised new learning capabilities were, in her view, a likely consequence of the head trauma that occurred in 2020, rather than of other psychological factors.

39She notes:

'These inefficiencies are mild at best and not likely to affect day-to-day functioning but are likely to become more pronounced by acute drug intoxication as well as anxious and depressed mood.  Imprisonment would not tend to a decline in cognitive functioning, indeed routine structure would support new learning.'

40As to treatment she noted your significant history of failing to engage with various supports and services when in the community and opined that:

'Unless he can consistently demonstrate a positive aptitude and commitment to engage, participation in any drug rehabilitation programs, harm minimisation, regular psychological counselling or vocational training is likely to be highly problematic.'

41She was pessimistic as to your rehabilitative prospects at this point in time and concluded that you were a high risk of re-offending.

Submissions of Counsel

42Ms Borg, learned counsel on behalf of the Director, in fair and succinct submissions rightly pointed to Charge 1 as being the most serious offending before me.  As to the objective gravity, the initial sharing of the intimate file that you had recorded was deliberate on your part and evidenced your willingness to upload more intimate images if your demands were not met.  Your victim, she submitted, had no reason not to take your threat seriously. It was planned offending on your part.

43General deterrence and denunciation, she submitted, were primary sentencing purposes.  Specific deterrence and community protection were also relevant as the blackmail charge represented a concerning escalation in your offending.

44Whilst she recognised, most fairly, your longstanding substance use and mental health challenges, she submitted that a combination sentence would not be an appropriate disposition in view of your prior contraventions of community-based orders and thus she called for a head sentence with a lengthy period of parole.

45On your behalf, learned counsel Mr Portelli's ultimate submission, was that a sentence combining a term of imprisonment with a community-based order would sufficiently address all relevant sentencing purposes.  In support of that submission he relied upon; in regard to the offending, whilst Charge 1 was serious offending he submitted it sat in the mid-range of seriousness, having regard to the relative lack of planning and the amount of moneys demanded - $5,000.  The initial meeting was quite spontaneous.  There was no suggestion that Mr Roche had been targeted by you for his sexuality.

46You felt that you had been robbed and saw an opportunity to get your own back.  That is the context of this offending, submitted Mr Portelli, although of course it does not excuse it.

47Mr Portelli also relied upon your early plea of guilty, bringing with it the practical benefit of saving the community the time and the cost of a trial, and saving your victim the trauma of having to give evidence.

48The matter resolved before any committal hearing, and importantly, you did not seek to dispute the factual basis of what had occurred in your victim's apartment, nor the reason for your being there, whether it was to provide methamphetamine or for some sexual activity.

49He submitted, correctly, that your plea was a clear demonstration of your willingness to facilitate the course of justice and should be credited as such.

50He submitted that you were clearly remorseful, as indicated by the full and frank admissions in your record of interview, your consistent expressions of remorse for this offending during your assessments, and by your plea of guilty.  The offending, he reminded me, occurred against a background of longstanding homelessness, substance dependence and mental ill-health.

51As to your prospects for rehabilitation, he submitted there were grounds for optimism. You had used your time in custody well, you had completed a number of different courses, including timber merchandising, to obtain skills that will prepare you for employment.  You have a billet and have obtained respected prisoner status, which is no mean achievement.  You are now motivated to remain drug free and are determined to find work rather than remain in receipt of your disability support pension.

52You struggled with homelessness for all of your adult life.  Your goal is to find a place that you can call home, which many in this court might regard as a basic human right.

53A community-based order following upon a term of imprisonment and with appropriate treatment conditions, would, he submitted, provide the support that you needed to achieve your goal.

Objective Gravity

54Mr Umbridge, you had been invited into Mr Roche’s home as his guest. There is no suggestion that he was anything other than a willing recipient of methamphetamine.  The trafficking charge was in reality, social supply.  Nor is there any suggestion that you had targeted Mr Roche because of his sexuality. 

55You had access to Mr Roche’s laptop and mobile phone, he undressed, and whilst naked, behaved in a sexualised manner, either in front of you or directed to you.  You filmed him on his mobile phone, ostensibly with his consent.  After you had finished recording Mr Roche you told him you have to pay me for being here, either for your presence or for the methamphetamine, and you then took various items and left the apartment (Charge 2).

56Your plea to the robbery is on the basis that by your behaviour, your demeanour and your presentation, Mr Roche had been placed in fear that you might use force.  There was no overt threat, that is clear, but nonetheless your behaviour was to cause him great concern for his safety, particularly given that he was on his own with a stranger that he had invited into his apartment.

57You seized a presented opportunity to satisfy immediate needs and disregarded the impact upon your victim. You were driven solely by your own interests, something that is supported by the fact that outside the apartment you threw away some clothes you had been wearing and wore the clothes that you had just taken from Mr Roche.

58Charge 1, the blackmail, represents in my view serious offending.  Blackmail is an offence that preys variously upon people's secrets, fears, perceived vulnerabilities and their intimate selves in order to gain enrichment or advantage.  It is inherently callous and can have a traumatic impact upon its victims, as indeed it seems was the case here, having read the statement of Mr Roche’s mother.

59Smart phones, for better or worse, are now the repository of their owners' various lives.  The public, the intimate, the aspirational, the false and the imaginary, they contain a treasure-trove of information and images, leaving their owners particularly vulnerable, when the device and its information falls into the hands of those to whom it does not belong. 

60To his undoubted horror, Mr Roche received a message around 2.00 am, in the morning, from his mother stating that she had received an intimate image of him, which was not only stressful for her but also deeply traumatising for your victim.

61The story of his intimate life, was his story to tell or not, not yours.  I make no finding that when you recorded Mr Roche, you did so with an eye on future enrichment, but I do find that after you left the apartment you saw an opportunity to make some easy cash based on the hope that your victim had shame as to who he was and that he would wish to keep intimate matters a secret.  It was not spontaneous or opportunistic offending but was to some extent determined and considered, and this offending occurred just five weeks after your most recent release from custody.  Your life had long been one of responding to immediate needs, and this may be the context for your offending, Mr Umbridge, but it cannot excuse it.

62Now in sentencing you, I must have regard to a range of different factors:  I must give effect to the principles of general deterrence, that is deterring anyone else from behaving as you did, and to specific deterrence, that is deterring you from ever repeating such offending. 

63I must consider the need to protect the community.  I must express the community's denunciation of your conduct.  I must take into account the effect of your crimes upon your victim.  I must have regard to current sentencing practices and the statutory maximum penalties for the offences to which you have pleaded guilty.  I must also ensure, as far as possible, that you are rehabilitated and reintegrated into society. 

64In short, my task is to try to balance your personal circumstances with the circumstances of your offending, and I must also pass no greater sentence than is necessary in all the circumstances of the case as I find them to be.

65Clearly, principles of general and specific deterrence, denunciation, just punishment and community protection are all relevant sentencing considerations in your case.

66In sentencing you I have had regard to all of the matters which have been so ably urged upon me by your counsel. 

67For the avoidance of doubt, I have particular regard to the following:

68Your plea of guilty.  I do view it as an early plea. I also have regard to the lack of factual challenge that was brought to the accounts of how you came to be in the apartment, which spared your victim any further trauma and was a marked demonstration of your willingness to facilitate the course of justice.

69I do find that you are remorseful.  I have regard to your efforts of rehabilitation during your long period of remand. I have regard to your expressed determination to lead a drug-free life when back in the community and your determination to reconnect with your family, and if you can, to be not merely a biological father, but to actually be a parent to your daughter.

70I have regard to your expressed desire to find work and to find housing, and to break the cycle of drug use, offending, imprisonment and immediate relapse upon release.  I have regard to your longstanding and as yet unresolved issues of grief and complex trauma.

71I view your prospects of rehabilitation with some considerable caution at this stage.  Any future that you have will be dependent upon you remaining drug free when back in the community, as must be quite clear to you, Mr Umbridge.

72I ordered an extended pre-sentence assessment report which became our Exhibit 6.  In that report you were assessed as a high risk of general reoffending.  The report found you suitable for another community corrections order, despite your prior history of non-compliance.  This conclusion was apparently based upon the availability of an address with an extended family member, an aunt by marriage in Keilor East, where you would know no-one and would be removed from your negative peers in the Dandenong area.  It is, however, an address where a relative also resides, a cousin, who is currently on a community corrections order and is an active user, although apparently not when at home.  Without more information, the report's conclusion I find is neither realistic nor persuasive.

73You are able, Mr Umbridge, to identify goals, but at this stage are not yet able to identify how you will achieve them.  In my view you would require at this stage a greater level of support in the community than that which can be provided under a community corrections order. 

74A combination sentence would not sufficiently address all relevant sentencing considerations. However, in fixing a term of imprisonment I am setting a shorter than normal non-parole period so that should you be granted parole, which is not a matter for the court, you will have the benefit of a supported transition into the community to aid you in achieving your identified goals.

Sentence

75On Charge 1, you are sentenced to a term of imprisonment of 32 months.

76On Charge 2, you are sentenced to a term of imprisonment of seven months.

77On Charge 3, you are sentenced to a term of imprisonment of one month.

78I order that one month of the sentence on Charge 2 run cumulative to the sentence on Charge 1.

79That makes a total effective sentence of 33 months.

80I direct that you must serve a term of 20 months before being eligible for parole.

81Pursuant to s6AAA , had you not pleaded guilty you would have been sentenced to a total effective sentence of four years and two months and I would have fixed a non-parole period of three years.

82Pursuant to s18(4), I declare that you have served 427 days of the sentence that I have passed upon you today and I direct that this be entered into the records of the court.

83Ms Borg and Mr Portelli, I have a disposal order which I will sign now.