Director of Public Prosecutions v Vella and Ors

[2020] VCC 659

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02229
CR 19-02236
CR 19-02351

DIRECTOR OF PUBLIC PROSECUTIONS

v

JESTONY VELLA
AMANDA SCULLY
TAMAI TAUTUHI

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	21 May 2020
DATE OF SENTENCE:	21 May 2020
CASE MAY BE CITED AS:	DPP v Vella & Ors
MEDIUM NEUTRAL CITATION:	[2020] VCC 659

REASONS FOR SENTENCE
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Subject: blackmail
Catchwords: early guilty plea – bungled offending – low-range – young and youthful offenders – 2 without any criminal record – one with limited unrelated criminal history – excellent prospects of rehabilitation
Legislation Cited:
Cases Cited: R v Hamid [2019] VSCA 5, R v Boulton (2014) 46 VR 308, DPP v Candaza [2003] VSCA 91 and R v Kose [2006] VSCA 119
Sentence: community correction order without conviction

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Raimondo
For Accused Vella	Ms S. Parsons
For Accused Scully	Mr J. Lavery
For Accused Tautuhi	Mr A. Lewin

HIS HONOUR:

1Amanda Scully, Jestony Vella and Tamai Tautuhi, you have each pleaded guilty to one charge of blackmail. 

2You, Scully, impersonated a 14-year-old girl on a dating app, Scout.   You met the victim, a 37-year-old man, online.  He gave you his phone number to contact him.

3On 21 June 2019, around 10 pm, you telephoned him and asked to see him.  He agreed and suggested you go to his house to watch a movie.  In a series of text messages, you agreed to meet him at Sunshine.  You went to Sunshine and waited outside a supermarket for him.  He arrived about 11.30.

4While the two of you were talking, your boyfriend, you, Vella, and two other friends, including you, Tautuhi, approached and surrounded the victim.  Between you, you demanded $1000 from him and threatened if he did not pay the money you would expose him as a paedophile on social media and report him to police.

5You, Scully, said to him, 'If you don't have the $1000 you're going to have to give us the keys to your car and we'll take you wherever we need to go and we'll drop you off but you're going to sign the transfer papers'.

6The victim took a photograph of all of you and walked to the Sunshine police station.  You all followed him.  He reported your threatening demand.  You gave your version of the events.  Police questioned each of you under caution and then released you.

7On 15 August you were all charged with blackmail. 

8The three of you told police your plan was to confront an adult who had agreed to meet a 14-year-old girl to take him to police.  You, Scully, said Vella and you created the online character together.  You said your intention was to shame paedophiles.  You denied demanding money or car from the victim.

9When police played you a recording of the episode, you admitted you did make the demand.  You said it was your idea and you did it on the spur of the moment. 

10You, Vella, admitted you helped Scully set up the meeting and you went with her to confront the victim as a paedophile.

11You denied making any demand for money.  Even when police played you the recording of the demand having been made you maintained your denial. 

12You, Tautuhi, said you joined your friends to challenge the victim and to take him to the police but it did not go to plan.  You said you never intended a demand be made for money.

13You all pleaded guilty at an early stage. 

14The fourth person who was with you when you confronted the victim has denied any knowledge of the demand and the charge against him is listed for trial on 15 March next year.

15You, Scully, were born on 17 April 1998.  You are now 22 years old.  You were 21 when you offended. 

16Your counsel, Mr John Lavery, in written and oral submissions informed me you come from a hardworking family.  You are the youngest of three siblings.  You were a talented athlete at school.

17You completed your VCE and worked in retail until you started a family.  You and your partner, Vella, have two daughters.  The older is aged 22 months and the younger, you two months.  When they are older, you plan to return to work most likely in retail and to study, possibly nursing.

18Mr Lavery told me when you were younger you were upset by unwanted sexual advances from older men.  In this context, you offended.  He described your offending as out of the ordinary and naïve.  He also described it as poorly planned, of short duration and inexpertly executed.

19In oral submissions, he accepted you gave some false answers to police questioning and that your offending was motivated, in part, to shame paedophiles but also to demand money from the victim. 

20You have no criminal record.  Your sister wrote you come from a loving and supportive family.

21Your offending is completely out of character with the person she knows.  She supported you in court today.  She said you are very remorseful for your actions. 

22All While you were growing up you were a member of the parish of
St Johns, East Malvern, with your family.

23Father Baldock wrote your parents raised you in a rather strict environment where right and wrong, achievement and community service were emphasised.  He described you as a proud young mother who was enjoying being a parent and who wants to care well for her children.  He said you are determined not to reoffend.  As Mr Lavery submitted, all you are to be sentenced as a youthful offender with emphasis on your rehabilitation.

24You, Vella, were born on 18 August 1994 and are now aged 25 years old.

25You have a criminal record.  On 19 October 2016 you were fined for possession of a prohibited weapon and driving offences and on 22 February 2018, you were sentenced to a four-month community correction order, requiring you to perform 25 hours of community work, for possession of cartridge ammunition.

26Ms Parsons, who appeared for you in written and oral submissions informed me your mother is Filipino and your father Maltese.  You grew up in an English, Maltese and Filipino speaking home.  You have three older half siblings and a younger brother.

27You struggled at school with a learning difficulty and bullying.  After you left school, at the end of Year 10, you completed certificates in security, warehousing and construction.  More recently you have worked as a truck driver.

28Ms Parsons told me your responsibility for a young family has been a steadying influence on you.  She said your partner's negative experiences as a child, and a teenager, with older men motivated your offending which was influenced by viewing similar blackmail behaviour posted, in the US, on social media.

29She said you gave evasive, if not dishonest, answers to police because you believed the victim was the wrongdoer.  She said you have now accepted responsibility for your wrongdoing and with a good work history and family responsibility your prospects for rehabilitation are very good.

30I received references from your mother, your brother and a work friend.  Your mother wrote that you grew up in a loving, caring home, that you played soccer at school and you enjoyed fishing with your father and siblings.  Your brother confirmed your work at Linfox Transport and also your keen interest in fishing.  The three referees describe you as a very good family man and a very hard worker.  They also say you are very sorry for your wrongdoing.

31You, Tautuhi, are 20 years old. You were 19 when you offended.  You stand to be sentenced as a young offender.  You have no criminal record.

32Mr Lewin, who appeared for you relied on the following documents in support of his submissions, namely:

33A builder's academy civil construction certificate, a medical report from the Royal Melbourne Hospital, and references from your uncle, mother and three friends. 

34I have read them and taken them into account in determining your sentence.

35In written and oral submissions, Mr Lewin informed me you were born in New Zealand.  You arrived in Australia when you were 12.  You grew up in Melbourne's western suburbs and completed Year 11 at a local school.  When you left school, you completed a certificate in civil construction at TAFE and you have worked as a traffic controller and labourer.

36You want to work as a truck driver.  Last week you obtained your heavy vehicle driver's licence and were interviewed for work.  You live with your mother and two older sisters.  You do not see much of your father.  Your family and friends regard you highly.  They describe you as kind, caring and loyal.

37You were especially helpful to Ms Bates in mentoring her autistic son.  You have done volunteer work with Mr Manatakis.  Your referees all described you as remorseful for your actions.  As a child you were diagnosed with a congenital heart defect for which you had surgery in 1999, 2000 and 2002 in New Zealand.

38You take daily medication to manage your condition.  Your medical records confirmed that you do not drink alcohol or use any illicit drugs.  You have no mental health issues.  Although you are medically fit for physical work with no significant restrictions you have found it hard to obtain regular employment because of your heart condition.

39For each of you, your counsel submitted while blackmail is a serious offence, which generally demands imprisonment, I should not gaol you but release you on a community correction order taking into account your offending was a low range example of blackmail, you each pleaded guilty at an early stage, that, you Scully and Tautuhi, have no criminal history and are relatively youthful, you,. Vella, have a limited criminal history and are still within the age when sentencing principles relevant to youthful offenders have application, and the unlikelihood any of you will reoffend.

40I was referred to three sentences of this court where blackmail offenders were released on community correction orders.  Your counsel, Scully, and yours, Tautuhi, also submitted I should not impose a criminal conviction.

41Mr Raimondo, who appeared for the prosecution, submitted firstly you, Tautuhi, are to be sentenced as a young offender.  Secondly, you, Scully and Vella, are to be sentenced as youthful offenders.  Thirdly, the three of you made early pleas of guilty.  Fourthly, the offending involved some degree of planning by you, Scully and Vella. Fifthly, the execution of the plan was naïve. Sixthly, all 3 of you are of previous good character and, seventhly, you all have good prospects of rehabilitation.

42He submitted, while you told police your intention was to expose a paedophile, the whole point of your scheme must have to obtain money and, if there was a vigilante element to your offending, acts of vigilantism cannot be condoned by the courts.

43He submitted a community corrections order is within proper sentencing range.  He submitted in relation to you, Scully, and you, Vella, as you hatched and implemented the criminal plan, which included a demand for money, the gravity of your offending was such that a conviction should be recorded.

44He accepted your previous good character and the recording of a conviction would most likely adversely impact on you. 

45In oral submissions, in your case, Tautuhi, Mr Raimondo submitted, because of your lesser role, you were not involved in the preplanning and your participation was limited to your presence, and your youth, it is open to the court to exercise its discretion not to impose a conviction on you.

46That you, Vella, filmed the episode on your phone suggests you saw yourself somehow as a crusader protecting the community.  As the Court of Appeal said in R v Hamid [2019] VSCA 5 at paragraphs 41 and 42:

'People must resolve their grievances by lawful means rather than taking the law into their own hands.'

47I have watched your film and the car park CCTV footage of the episode.  It was a bungled blackmail.  The scene was relatively calm.  None of you yelled out or remonstrated with the victim.  Apart from the presence of the four of you the level of threat and intimidation was low.  The four of you stood in front of him.  You, Vella, did most of the talking.

48You accused him of trying to meet a 14-year-old girl.  You said you had his text messages to prove it and you would put them on social media.  You told him repeatedly he was a paedophile and you were going to take him to the police station.

49You, Tautuhi, asked him if he had ever been to gaol and when he said no you told him he was going to gaol.  You, Scully, demanded $1000 from him.  You told him if he did not pay, he would have to give you his car and sign the transfer papers for it.

50The victim appeared relatively unmoved other than to say he was sorry and to walk to the police station himself.  I accept it was part of your plan, Scully and Vella, to meet him near the police station so you could readily report him.

51By your guilty plea, each of the three of you has acknowledged you were jointly involved in the criminal scheme.  However, your roles differ.  You, Scully and Vella, planned the offending.  You, Scully, used social media to entrap the victim.  You communicated with him and you met him initially.

52You, Vella, confronted him with the accusation he was a paedophile and threatened to expose him on social media and to report him to police.  You, Scully, made the demand for $1000 and you, Tautuhi, assisted with your physical presence.

53The maximum penalty of 15 years' imprisonment demonstrates blackmail is a serious offence.  However, it is an offence which can be committed in a wide range of circumstances and penalties range from work only community corrections orders to lengthy prison terms.

54I read the cases referred to me, and others, and, making adjustment for the differences in the circumstances of the offending and the offenders, I have used them as a guide as to the type of sentence I will impose.

55As the Court of Appeal said in R v Bolton (2014) 46 VR 308, a community correction order may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment.

56I accept, firstly, your offending was a low-end example of blackmail.

57Secondly, you, Scully and Vella, planned the blackmail.  Thirdly, your motive was in part to expose a paedophile but also to get money from the victim and, fourthly, your execution was amateurish and incompetent.

58You, Tautuhi, were not part of the original plan and your participation was marginal.

59I accept the 3 of you were very foolish, and that you are all remorseful and very unlikely to reoffend.  I will not send you to gaol.  I am satisfied in the case of each of you a community correction order can meet all sentencing purposes.

60It was submitted on behalf of two of you, Scully and Tautuhi, as first offenders that I should not impose a conviction upon you.  The discretion can be exercised in cases of serious offending and see for example DPP v Candaza [2003] VSCA 91 and R v Kose [2006] VSCA 119. In relation to you, Tautuhi, because of your lesser role, your youth and your truthfulness with police, I will not impose a conviction.

61The submission troubles me in relation to you, Scully.  Ordinarily blackmail demands a term of imprisonment and conviction automatically follows.  Your role was greater and, unlike Tautuhi, you were not entirely truthful when police questioned you.

62However, you are also a person otherwise of good character.  You are an intelligent young woman and a good mother.  I am confident your future prospects are bright.  A blackmail conviction may be a barrier to work and career for you and I will not impose a conviction on you.

63As for you, Vella, while you have a criminal record it is for relatively minor and unrelated offending and while your role was comparable to Scully's and you also lied to police you have a responsibility to care and provide for your partner and two young daughters.

64To that end, you are devoting yourself to their care and working hard in a competitive industry to support them.  A conviction for a serious offence could well be an impediment to your future employment.  The parity principle requires equal justice.  While there are relevant differences between the others and you, I have decided they are not so great as to require me to differentiate you from them and I will not impose a conviction on you either.

65Given your respective antecedents and, particularly, that none of you have any history of mental illness or alcohol or drug abuse I do not see a need to impose conditions for supervision or rehabilitation and treatment in the community correction order. 

66Ms Scully, the duration of your order will be 24 months and you will be required to perform 150 hours of community work.

67Mr Vella, the duration of your order will be also 24 months and you will be required to perform 150 hours of community work.

68Mr Tautuhi, the duration of your order will be 12 months and you will be required to perform 100 hours work.

69In addition to the work condition, the mandatory conditions of the order are that you must not commit another offence for which you could be imprisoned during the time that the order is in force, you must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations, you must report to and receive visits from the Secretary or delegate, you must let a community corrections officer know within 2 clear working days of you changing your address or job, you must not leave Victoria without 1^st getting permission from the secretary and you must obey all lawful instructions from, and directions of, the secretary or delegate.

70You will also be required to report to your nearest community corrections centre, the location of which will be advised, within two clear working days of the order starting, which is today's date.

71For me to make the community corrections order your consent and an acknowledgement that you understand the terms and conditions of the order and required so I will have the orders prepared and then I will give each of your counsel the opportunity to speak with you to confirm the conditions of the order.

72But for your pleas of guilty, I would have sentenced you, Ms Scully, to nine months' imprisonment.  I would have sentenced you, Mr Vella, to 12 months' imprisonment, and I would have sentenced you, Mr Tautuhi, to six months' imprisonment.

73Mr Raimondo, are there any other matters?

74MR RAIMONDO:  No, Your Honour.

75HIS HONOUR:  Thank you.  Counsel?

76MS PARSONS:  No, Your Honour.

77MR LAVERY:  No, Your Honour.

78MR LEWIN:  No, Your Honour.

79HIS HONOUR:  I will stand down while the orders are prepared and give you each the opportunity to speak to your client and when they have signed the acknowledgment and consent, I will come back onto the Bench and make the orders.

(Short adjournment.)

80HIS HONOUR:  Each of you having signed the acknowledgment that you understand the effect and conditions of the order and consent to it being made I will make those orders now. 

81Mr Raimondo, Mr Lavery, Ms Parsons and Mr Lewin, thank you for your assistance.  Adjourn the court please.

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