Director of Public Prosecutions v Ward
[2023] VCC 2121
•14 November 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT HORSHAM
CRIMINAL DIVISION
CR 23-00113
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WAYNE WARD |
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JUDGE: | His Honour Judge Murphy | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 September 2023, 10 November 2023 | |
DATE OF SENTENCE: | 14 November 2023 | |
CASE MAY BE CITED AS: | DPP v Ward | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2121 | |
REASONS SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Blackmail – Making threat to kill – Use Carriage Service to Menace
Legislation Cited:
Cases Cited:
Sentence: 4 months imprisonment and 15 month Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Grant | Office of Public Prosecutions |
| For the Accused | Mr J. Irwin | Cinque Oakley Bryant |
HIS HONOUR:
Introduction
1 Mr Ward, you have pleaded guilty to charges of blackmail, making a threat to kill, and using a carriage service to menace. The relevant penalties are set out in the prosecution opening which was read in open court on the plea, which I incorporate by reference.
The circumstances of the offending
2 The offending occurred over a narrow time period at Horsham on 19 August 2021. You were 48 years old at the time and living in that town with your 22 year old daughter. The complainant in the matter was aged 26, and also lived in Horsham with his parents. His mother is also a complainant in relation to the third charge.
3 The complainant had known your daughter a few years earlier, and she lived at his place of residence for a short time in order to access the internet. He had never engaged in any sexual activity with her, and had asked her to leave the house over domestic differences. After that, she made accusations against him but never took the matter to the police.
4 On the evening of 19 August, you were at home with your daughter. You were drinking. She raised the allegations against the complainant. You became enraged and then proceeded to send three Facebook messages which are the subject of the charges.
5 The messages were set at 8.20 pm, 8.35 pm, and 9.49 pm. They contained foul language and crude threats. That included a demand that he provide to your daughter a Holden Colorado 4x4 or the matter would be referred to a friend who was actually a local policeman.
6 The first message also contains a reference that you would skin the complainant alive and eat his heart. You also said in that message that you knew where he lived. You placed a deadline of 7.45 am on 22 August on the demands. In the second message, you again referred to slowly cutting up the complainant. The final message asked him again to provide the 4x4 so that the matter would simply go away.
7 The complainant showed the messages to his mother who was home at the time. She attempted to assist him by contacting you via Facebook Messenger, and you responded with a message containing foul language and repeating the allegations of him being ‘a pedo boy’ and a demand for the vehicle.
8 These three messages constitute the charges of blackmail and making a threat to kill, and the fact that you were delivering them using a carriage service via your mobile phone is the basis of the third charge of using a carriage service to menace.
9 Later that evening, the victim attended the local police station and made a statement. He also stated that he was worried that you would come to his home to carry out the threats.
10 In the early hours of the next morning, 20 August, the police arrived at your house, arrested you and took you back to the station where you were interviewed.
11 In the interview, you said that you had been diagnosed with schizophrenia and believed that it was beneficial for you to vent, and that you did not plan to carry out the threats.
12 After the record of interview, you were released on bail. The matter was the subject of a filing hearing on 21 November 2022. On 1 February 2023, the matter was the subject of a committal mention, and a hand up brief at the circuit commencing 13 June 2023, but was not reached, and ultimately it was listed for plea on 27 September 2023 in Horsham, and it has had to be adjourned, part heard, to Melbourne.
13 In the record of interview, you stated that you had been talking to your daughter and became very angry with the complainant in relation to her allegations against the complainant. You also said that due to your schizophrenia, it is better for you to yell and scream. You also claimed that your conduct was just a scare tactic. You said that you had watched a horror movie and this gave you the idea.
14 Your train of thought to get the car was that you and your daughter were both unemployed at the time. You said that you and her were yelling and screaming, and it was very emotional. You said at Question 194, ‘I probably wouldn’t have done half the stuff if I wasn’t drinking’. You said that you did not know your train of thought behind the car, but you said you wanted it to be ‘tit for tat’ regarding what you had alleged he had done to your daughter. It was a scare tactic and you had no intention of carrying through with anything.
Victim impact statements
15 Both complainants in the matter have filed victim impact statements indicating the very significant impact of your conduct on them.
16 In his victim impact statement made 12 June 2023, the complainant says that he felt worried and scared, and went to stay with his family knowing that if he wanted to get you, you would have to get through his parents’ dogs first. For four months, he did not feel comfortable spending more than 10 minutes down the street, and he was always looking over his shoulder. He lost weight due to not eating, and had to go and see a psychiatrist.
17 He said, ‘I have not truly felt safe again, and every time I think of him, I feel angry at how it has affected my life, and I needed to spend time thinking about him. And to write this makes me sick to my stomach, and filling this out has been one of the hardest things I had to do. It fills me with such rage. I want to break things. He stole part of my life, and I will never get it back.’
18 He goes on to say that during the four months immediately after this event, he was not looking for work because the jobs that he was offering would put him directly in the path of where you lived, and he could not face running into you.
19 His mother also filed a victim impact statement saying that she was worried sick that if she let her son out of her sight, he would be murdered in a brutal manner. She had trouble sleeping at night, and she got her son to stay with her because she was worried about his safety, and she kept checking to see that he was still in his room.
20 Both her and her husband were upset, and seeing her son lose weight and his nerves really ‘took a toll on my day-to-day life’, and she did not think she will ever feel safe again. She found she cut herself off from her friends, and she became very isolated and withdrawn. The whole experience was terrifying, sickening, and isolating, in that there was ‘no one I felt safe to talk to’.
21 The two victim impact statements were made in June this year. They indicate that your offending has had a continuing impact on them that is still raw. Your offending affected the complainant in relation to his employment. He lost weight and was required to see a psychiatrist. Thus, it has had a major impact on him and his mother, and the impact of your offending – particularly the complainant – is a matter that I must take into account and is relevant to the seriousness of the offending.
Assessing the seriousness of the offending and moral culpability
22 The offences of blackmail and making a threat can occur in a wide variety of circumstances. Blackmail has been described as a nasty crime.
23 The ubiquitous availability of social media makes interpersonal communications so much easier, where persons communicate via text and other messages, rather than in telephone calls or personal face-to-face contact. It also makes offending easier to prosecute because the contents are captured on the communications device.
24 Here, your rude and vile and violent communications were over a narrow time period and were impactful, notwithstanding that on your account, you did not intend to carry out the conduct. The complainants were not to know that this was alcohol-fuelled ranting by someone with a history of mental instability, although there was a reference to ‘schizophrenics not needing a reason’ in the second message.
25 The narrow time span of the offending over the period of the three communications and the lack of repetition thereafter is such as to characterise the offending as in a mid‑range of seriousness.
Prior convictions
26 You have admitted a not insignificant criminal record for a 50 year old. It commences in 2002 when you were aged 30, and you were dealt with for traffic offences, throwing a missile and criminal damage, and theft of a major vehicle. On that charge, without conviction, you were fined $1,300.
27 You subsequently converted the fines into a community work order. In September 2003, you were found to have breached the order and you were again fined for those offences.
28 On 29 October 2003, you were fined for breaching an intervention order on two counts. The order was subsequently cancelled. On 11 March 2009, you were before the Horsham Magistrates’ Court on charges of exceeding PCA and unlicensed driving, and were placed on a 12 months’ community corrections order. You subsequently breached that order and were placed on the three months’ suspended sentence.
29 On 2 June 2010, on charges of criminal damage, entering a private place without excuse, threat to inflict serious injury, and possession of cannabis, you were sentenced to a partially suspended sentence of six months’ imprisonment. You appealed that sentence and were placed on a three months’ suspended sentence on appeal.
30 On 9 May 2012, you were sentenced to 2 months’ imprisonment wholly suspended on a charge of intentionally damaging property. On 13 May 2015, on charges of criminal damage, contravening a family violence order, and wilful damage, you were fined a total of $2,000.
31 Your final appearance in your criminal record was on 13 March 2019 when, on charge of persistent contravention of a family violence order, you were placed on a community corrections order for 15 months. This order expired on 13 June 2020, which is some 14 months before this offending.
32 Your criminal record shows that you have been before the courts on a number of times previously, but you have never been sentenced to a term of imprisonment that must be served.
33 You do have one conviction for a threat to inflict serious injury, which is not dissimilar to the offending here.
34 Your criminal record of breaches of community corrections order, failing to comply with intervention orders, and criminal damage is consistent with impulse control issues referred to in the medical reports.
Matters in mitigation
35 Your personal circumstances were set out by your counsel in the plea submission. You are aged 50 and hail from the Horsham area. Your parents still live in the area. You left school at year 10 and worked as a chef for a short time and then worked in other labouring jobs in the local area. You were working part-time in a local supermarket or convenience store in recent times.
36 You are the father of seven children. The four older children with your first partner, who is now deceased, are now adults. The youngest of them was present on the night of the offending and lives with you in Horsham.
37 You also have three younger children from another relationship, who reside with their mother. You had a tumultuous relationship with the mother but you still see the children regularly.
38 In a comprehensive submission, your counsel focused on your mental health history as relevant to your moral culpability and as to the appropriate disposition in the matter.
39 He emphasised that you had not been sentenced to a term of imprisonment and thus, for a 50 year old, this is significant.
40 He also emphasised your remorse and your insight into your offending, particular since you have been remanded in custody since the original plea hearing. I accept that you are remorseful for your conduct, and it is confirmed in the CCO assessment that was undertaken and the psychiatric report of Ms Cidoni.
41 As indicated in the material, you have a significant mental health history commencing in 2003 that includes a one-week admission to the Ballarat Hospital in 2007. A report from a psychiatrist in 2004 indicates that at that point, you had impulse and anger management problems, and poor coping skills. ‘This is compounded by his drug and alcohol abuse, as well as brief periods of depression and psychosis’.
42 You were referred to a psychiatrist in October 2021 after this offending. His impression was that you had depression and anxiety, and you would benefit from a mental health plan and referral to drug and alcohol, and a sexual and family violence service. He also recommended a review of your medication.
43 You have been attending a local psychologist since this offending, although no report was available.
44 A local GP, in a report to the court, indicates that you are sometimes non-compliant with your medication.
45 Your counsel, in his submissions, relied on two reports from Ms Cidoni, psychologist. She had seen you in 2019 for a family violence plea. At that point, she noted a review of your medication was required, and that you acknowledge that the effects of alcohol and cannabis were making you disinhibited. She noted that you presented with chronic mental illness.
46 In her more recent report, she opines that you are suffering from a number of mental health conditions including anxiety disorder, bipolar disorder, post-traumatic stress disorder, and alcohol abuse disorder.
47 She further notes that these conditions interact and collectively impact on your day-to-day functioning. Her opinions are set out in paragraphs 83 to 88 of her report, which I incorporate by reference.
Assessment
48 The mental health history outlined in the report of Ms Cidoni provides some explanation for your offending. In particular, your substance abuse, namely, alcohol and cannabis, provide an explanation for your disinhibition, as well as the other conditions from which you suffer. Given that you have had these conditions for many years, I do not accept that they should lead to a reduction in your moral culpability for this offending.
49 On the other hand, as indicated by Ms Cidoni, your various clinical diagnoses do make prison more burdensome than for a person not having those conditions. While you are being treated in custody, and according to the report from Forensicare your mental health condition is stable given your underlying conditions, the separation from your family and conditions within the prison system will make a sentence of imprisonment more burdensome, and I am prepared to take that into account.
Prospects of rehabilitation
50 This is the most serious offending that has brought you before the courts in your adult life. Being sent to prison for the first time at your age, no doubt, has had a salutary impact on you. You are separated from your family and, in particular, your daughter and your parents. You also have the challenge of being in a confined environment with your array of mental health conditions.
51 Subsequent to the offending, as I have indicated, you arranged for a mental health plan, and you have been engaging with a psychologist under that plan.
52 Ms Cidoni assesses your risk of reoffending as medium. She notes that there are protective factors, including your family support, and I note that there is a job offer: a reference or a letter from your former employer indicating that the job that you previously held before going into custody is available to you upon your release. That is a fact that I take into account.
53 Ms Cidoni opines that you need to address your history of substance abuse and your mental health conditions. She recommends that you undertake continued mental health treatment and monitoring to ensure compliance with medication.
54 The Forensicare assessment does not recommend a mental health condition on a community corrections order, but I have determined to include that condition on the order, given your long history of non-compliance with medication and your various conditions.
Purposes of sentencing
55 The basic purposes for which a court may impose a sentence are punishment; deterrence, both specific and general; rehabilitation; denunciation and protection of the community. In sentencing, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances, and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct, with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
56 In this case, your counsel strongly submitted that a non-custodial community corrections order would meet all sentencing requirements.
57 In sentencing you, I have taken into account that it is now over two years since the offending occurred and no further offending has taken place. This supports your path to rehabilitation. Further, you have had this matter hanging over your head since you were first charged, and that is a matter to be taken into account in your favour.
58 I have also taken into account that you entered a plea during the time that the criminal justice system was suffering from backlogs, which have now significantly dissipated. However, you are entitled to the benefit of the entering of a plea in those circumstances – and it was an early plea – and under the authority of Worboyes v The Queen [2021] VSCA 169, you are entitled to a perceptible amelioration of sentence.
59 Having considered this matter and the seriousness of the offending and the submissions of the learned prosecutor, I have determined that a period of imprisonment is required in order to denounce your conduct and send a signal to all persons minded to use messaging services to make threats and seek to extract money or other advantages from others that they will be met with heavy sentences.
60 Your offending has had a significant impact on both complainants, and that is a factor that must be taken into account in sentencing.
61 In sentencing you, however, I have taken into account the principles of parsimony and that a sentence of imprisonment must be a last resort. You have had a significant history of various mental health conditions which, while not reducing your moral culpability, are relevant in sentencing and in the type of sentence to be imposed.
62 Notwithstanding the seriousness of the offending here, I regard a combination sentence as best serving the interests of the community in denunciation and general deterrence, and then encouraging your continued rehabilitation through supervision under a community corrections order, so that you can put this offending behind you.
Sentence
63 Could you please stand. On the charges of blackmail and making a threat to kill, you are sentenced to four months’ imprisonment as an aggregate sentence, and a 15 months’ community corrections order to commence upon your release from custody.
64 On the charge of using a carriage service to harass, you are sentenced to three months’ imprisonment. That sentence is concurrent. The community corrections order contains the usual orders, and I will ask Mr Irwin to discuss it with you and explain it to you. But you are under supervision for a period of 15 months. You must not commit an offence carrying a term of imprisonment during that time. You must receive visits and advise the Secretary of any charges of address.
65 You have been on a community corrections order, so you know the ropes. You have got to attend the Horsham Community Corrections office within two business days of being released from prison. You must also undertake assessment and treatment, including testing for drug abuse and dependency as directed, and alcohol abuse and dependency as directed – and I note that you do have an alcohol counsellor up there in Horsham that you have been engaging well with – and you must also undergo any mental health assessment and treatment as directed by the regional manager.
66 I declare that you have served 49 days’ pre-sentence detention and direct that that be deducted administratively. I declare that, had you not pleaded guilty, I would have imposed a total effective sentence of 18 months’ imprisonment with a non-parole period of 12 months.
67 I want to thank both counsel for your assistance in this plea.
68 Mr Ward, you know the ropes. You have got to attend at Horsham within two business days and be inducted into the community corrections system, and then you are under their supervision for the next 15 months after that. And if you breach that order, you will be brought back to me and I will tell you that I gave you this opportunity to serve part of your sentence in the community, and if you fail, do not expect any mercy from me. Do you understand that?
69 ACCUSED: Yes, Your Honour.
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