Director of Public Prosecutions v Western
[2023] VCC 585
•20 April 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00059
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DALE JONATHON WESTERN |
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 September 2022 and 23 March 2023 | |
DATE OF SENTENCE: | 20 April 2023 | |
CASE MAY BE CITED AS: | DPP v Western | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 585 | |
REASONS FOR SENTENCE
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Subject:Criminal law - Sentence
Catchwords: Blackmail – Rolled up charge – Offending occurred over approximately 14 days – Threats of violence – Threats to share BDSM material with family, employers and police – A total of $8,000 transferred by the victim to the offender’s bank account –Verdins principles enlivened – Complex mental health issues – Borderline Personality Disorder and associated conditions including Partial Dissociative Identity Disorder – Reduced moral culpability – Disadvantaged childhood – Challenging prospects of rehabilitation – Community protection – Early plea of guilty – Burden of custody due to COVID-19 pandemic.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991.
Cases Cited:Worboyes v The Queen (2021) 96 MVR 344; R v Verdins (2007) 16 VR 269; Brown v The Queen [2020] VSCA 212; Bugmy v The Queen (2013) 249 CLR 571; Newton (a pseudonym) v The King [2023] VSCA 22; DPP v Grabovac (1998) 1 VR 664.
Sentence: 1 year and 10 months’ imprisonment followed by a Community Correction Order for a period of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Wilson | Office of Public Prosecutions |
| For the Accused | Mr G Chisholm | Daniel Taylor Lawyers |
HIS HONOUR:
1Dale Western, you have pleaded guilty on indictment to one rolled up charge of blackmail contrary to s 87(1) of the Crimes Act 1958. This offence carries a maximum penalty of 15 years’ imprisonment.
Circumstances of the offending
2The circumstances of your offending are set out in the summary of prosecution opening dated 7 May 2022.[1] Your counsel indicated that this is an agreed document for the purpose of sentencing.
[1] Exhibit A.
3Your offending took place over the course of approximately two weeks in 2021. At the time of the offending you were 40 years of age, unemployed, and receiving government benefits.
4Early in 2021, you met your then partner, Ms Casey,[2] through a Facebook group. You began a relationship and moved in with her.
[2]A pseudonym.
5Prior to meeting you, Ms Casey had been in a casual relationship with your victim, Mr Garner,[3] from between 2015 and January 2021. The two had met on a website dedicated to Bondage and Discipline, Dominance and Submission, Sadochism and Masochism (‘BDSM’). They communicated mostly through email, meeting only three times throughout their relationship. During the relationship, Ms Casey sent Mr Garner sexually explicit images of herself in various states of bondage and submission. In early April 2021, Ms Casey ended her relationship with Mr Garner as she had met you. As of 7 April 2021, Mr Garner ceased to have any further contact with her.
[3]A pseudonym.
6On or about 5 June 2021, you sent an email to Mr Garner using the address [email protected]. In the email you referred to Mr Garner as ‘Matthew’.[4] Mr Garner replied to your email, and you and he began corresponding about BDSM. You told him that you were involved with a submissive (‘sub’), and that you also had a wife. You also told him that you worked as a soldier in the Australian Defence Force (‘ADF’). Mr Garner told you where he lived and that he worked in sales.
[4]A pseudonym.
7Mr Garner sent you photographs of BDSM material that he enjoyed as well as four photographs of Ms Casey in submissive or pornographic poses. The photographs of Ms Casey had been cropped so that her face was not visible. Ms Casey had previously sent the photographs to Mr Garner during their relationship. You asked Mr Garner to send you any video that showed Ms Casey’s face, however, Mr Garner refused to do this.
8You continued to send Mr Garner emails telling him that you and your ‘sub’ wanted to meet him and that your ‘sub’ was also happy to meet him alone.
9On 29 June 2021, you sent Mr Garner an email stating, ‘Hey would you please be able to give me a very quick call…I have a proposition for you…it will be worth your while’. In subsequent emails you sent Mr Garner your mobile number and told him that you were ‘Waiting…I’m excited to offer this and so is my brat’.
10Mr Garner called you and you answered the phone by launching into an angry and threatening tirade in a deep raised voice. You said you were a soldier mate of Ms Casey’s new boyfriend. Hearing you use the name ‘Casey’ caused Mr Garner to panic as he had never mentioned Ms Casey in his emails to you. He realised that you knew that he had been referring to Ms Casey as the person with whom he used to be involved and the person in the photographs he sent to you.
11You told Mr Garner that you had been to Afghanistan a couple of times and that Ms Casey’s new boyfriend had saved your life there. You made threats of violence against Mr Garner. You called him a ‘low dog’. You told him that you knew who he and his family were and that he was being watched.
12You told him that you knew where he worked and mentioned the name of his company . You implied that he could be tracked using ‘ADF technology’. You then told him that he needed ‘to pay some compensation…Casey’s doing it tough’. Mr Garner thought that this demand for compensation referred either to Ms Casey’s financial difficulties, of which he was aware, or it was a demand for compensation for sending her pornographic photographs to you.
13He suggested an amount of $5,000. You told him that the amount was $7,000 and gave him the deadline of 25 July 2021 by which to pay.
14Soon after the phone call Mr Garner sent a text message to you stating ‘I have heard you…I will do what we agreed’. You responded ‘Please don’t text…I have no idea what you are talking about BROTHER’.
15In a state of panic, Mr Garner deleted all of his email communications with you and Ms Casey.
16That same day, you sent Mr Garner the following emails in quick succession:
· ‘ASAP TICK TOCK’ at 7:21am;
· ‘We actually don’t want to wait…the brothers say move now’ at 7:22am; and
· ‘Deposit of good faith?’ at 7:24am.
17Mr Garner responded to your emails telling you he would deposit $1,000 into your account this week and the remaining $6,000 by 25 July but hopefully sooner.
18You responded in two emails stating in the first ‘I will send details soon. Did you take the butt plug photos of her?’ and then in the second, ‘And tell. The truth brother.’ Mr Garner responded ‘No’.
19You then emailed your bank details to Mr Garner.
20Fearing that your threats would be carried out, Mr Garner withdrew $1,000 from his bank account and deposited this amount into your bank account.
21At 10:16am, he emailed you and told you that the money had gone directly into your account and gave you the receipt number. He pleaded with you asking:
…Can you please leave me alone as I am looking to have remain in about 3. I am a dog and a piece of crap getting into this position and am sorry. I will get the remaining money somehow and bring this to an end. Thank you.
22You replied, ‘Deal…you have until the 25th to pay for the goods…slot [sic] of our squad are waiting for you…talk asap.’
23At 10:29am, you sent Mr Garner a further email telling him:
Just to let you know we are watching the goods in Bairnsdale as well…so be a good dog and don’t bite the hand that feeds you…the sooner you pay for the goods the sooner we all go our separate ways.
24Mr Garner believed that the reference to ‘watching the goods in Bairnsdale’ was a threat to his elderly mother living in Bairnsdale. He emailed you ‘Understand…’ and you replied ‘Good…’.
25At 10:52am, you emailed Mr Garner telling him that he would be doing himself a favour if he sent any videos he had of Ms Casey as the ADF could retrieve them anyways. You told him that you knew that he had at least one video and to not ‘fuck around’.
26Mr Garner told you that everything had been deleted including videos and pictures. He told you that he wanted to pay his dues and end this. You replied ‘You have my word once goods are paid and you move on and hopefully be a better man’.
27You then sent Mr Garner two further emails asking on behalf of ‘Dale’ whether you had performed a specific sex act with Ms Casey and whether you had ever been to her house. Mr Garner told you he had done neither.
28At 2:04pm, you sent Mr Garner another email in which you said that you had created files that you would share with Mr Garner’s business, wife, mother, other family members, and the police. You told him that the ‘…agreement needs to happen asap…’. Mr Garner replied and said that he hoped to complete the agreement before the due date and that he wanted this to go away as soon as possible. You then sent Mr Garner two further emails stating that Mr Garner had to act as soon as possible as you and your ‘side’ were struggling for patience. You said that you would hate for ‘us’ to change our minds about giving you this chance. You then told Mr Garner that after looking through things further, you and your side knew that he could make the payment now. Mr Garner told you that his finances were ‘fucked’ at the moment and that he was borrowing money. You replied ‘Tick tok sick of us wasting fuel following EVERYONE around’. Again Mr Garner replied by reassuring you that he wanted to bring the situation to a close as soon as possible. At 5:25pm, you replied stating:
And that’s why is guys will be nice enough to just say give us another 7000…think of the other 1000 as a buying time...covers fuel for keeping up with everyone...and above all safety...Enjoy your night.
Shit...my bad...I forgot to say...and staying out of jail.
29Three days later on Friday 2 July, you emailed Mr Garner stating that ‘Montmorency is a beautiful place hey...one of the boys were saying the shops are quite [sic] and nice’. Mr Garner believed this email was an attempt to increase the pressure on him to pay as it referred to ‘one of the boys’ knowing where he lived and frequented. Mr Garner responded and told you that he would have some of the payment transferred on Monday and the rest by the end of the week. You replied, ‘As soon as another 7000 is paid for goods...then you have my word. It will all end.’
30On 4 July, you emailed Mr Garner and asked him if he knew the names ‘Dwight Mills’[5] or ‘Earl Logan’.[6] Mr Mills and Mr Logan are directors of Mr Garner’s company. Mr Garner became fearful that you would involve them or send them files. He deposited $4,000 into your account.
[5]A pseudonym.
[6]A pseudonym.
31The following day he emailed you and told you that he had deposited $4,000 into your account and would deposit the remainder by that week. You replied, ‘Good to here [sic]…Tik fucking Tok…everyone is getting restless. so do it asap.’
32On 6 July, you emailed him stating that he hadn’t answered your question about whether he knew those two names. Mr Garner replied that he did and that the remaining money would be deposited tomorrow.
33On 7 July, Mr Garner transferred the remaining $3,000 into your bank account. He emailed you at 8:10am telling you the same. He reminded you of ‘your word [that] once the money is complete, [the] agreement is done.’ He told you that he wanted to be a ‘better man now and want[ed] to be left alone’.
34However, by an email you sent at 9:03pm that day, you made it clear to Mr Garner that you would not leave him alone. You told Mr Garner that you had an ‘issue’, namely that you had served two army tours with a relative of Mr Mills. You said that you had met Mr Mills and alluded to knowing Mr Logan. You told Mr Garner that while you had given him your word regarding the agreement, you were also bound by the brotherhood of a man with whom you had served. You made it clear that Mr Garner had hurt a fellow solider due to his actions and that he had given most of the $8,000 to Ms Casey. You said that you had been left with ‘next to nothing’ but would not ask for more payment.
35You quickly went back on your word. At 2:37am next day, you sent another email to Mr Garner stating that ‘10k gets you [the] deluxe package with lifetime warranty and I personally make sure no one talks again…no one gets hurt...and you continue to be the great son...husband...father...grandfather…that they think’. You told him to think of you as his ‘personal guarantee’ that you wouldn’t ‘allow anyone to do anything.’ You made it clear that ‘10k [was] the only way [you would] break the soldiers brotherhood’ and that Mr Garner had until 3pm that day to make payment. You ended your email with an ultimatum that unless the payment was made you promised that ‘judgement day [was] coming for everyone’ and that Mr Garner should not think that you were not putting your ‘ass on the line’ for him.
36Seven minutes later, you sent Mr Garner a further email stating:
And don’t fucking FORGET..I risked my life and I fought overseas for yours and your families safety and way of life…now you need me to do it again…after everything I have already sacrificed. So that should fucking explain what you are asking of me and why it is worth $10k.
37After receiving these emails Mr Garner felt that he was being blackmailed for another $10,000 with a deadline set for 3pm on 8 July 2021. As he was unable to pay the additional $10,000, Mr Garner reported the matter to police who advised him not to respond to the emails or pay any further money.
38At 10:52am and 10:54am you emailed Mr Garner reminding him of how many hours and minutes of the deadline remained and told him that you hoped he and his family were ‘having a great day…especially [his] grandson’. You mentioned Mr Garner’s grandson by name.
39That same day you sent Mr Garner three further emails telling him to ‘please don’t make me do this’ and reducing the amount he had to pay to $5,000. You then told Mr Garner that ‘hand delivery’ would begin to his mother, brother, son and the police. You told him that you would post the goods to Mr Mills and Mr Logan.
40On 10 and 11 July, you contacted Mr Garner via text message twice and told him to ‘…Hold on…it’s going to be a hell of a ride.’ On 12 July, you emailed him and told him ‘…It’s amazing what gets someone put as a registered sex offender.’ Again on 14 July, you emailed Mr Garner twice and told him that it looked like Ms Casey wanted to ‘take things further…can’t be sharing personal vids’. You said that you were ‘just about to message’ Mr Mills on LinkedIn and that you were sorry that you ‘hadn’t caught up with your wife yet but will asap’. You told him that ‘this will be the last time’ you contact him as you had tried to fix things but he obviously did not want to help his loved ones.
41Despite saying that would be your last contact, you sent Mr Garner two further emails the next day telling him that you were video calling Dale to show him the pics that Mr Garner had shared of Ms Casey. You said that she needed to know and see and that you were sure she would press charges. You also said that Ms Casey’s face was visible in some of the pictures and that she would be ‘shattered’. You ended your email by telling Mr Garner that you hoped he had health cover for later.
42On 16 July 2021, Mr Garner made a statement to police. He provided to the police all of the emails and text messages you had sent and the bank receipts for the three cash transfers he made which amounted to $8,000.
43On 20 July 2021, you were arrested in relation to this offence and remanded in custody where you have remained. You were interviewed by police and exercised your right to remain silent.
44Ms Casey told the police she had no knowledge of your offending. She stated that you were her boyfriend and she had been open with you about her relationship with Mr Garner. She had shown you the last email that she received from Mr Garner. You were offended by the email and had become upset.
Impact act upon the victim
45Mr Garner has made a victim impact statement dated 4 September 2022.[7] The psychological impact of your offending remains with him, in particular the threats you made which involved his family, work colleagues, and most of all his grandson whom you mentioned by name. Your offending continues to affect his sleep and he experiences moments of anger, fear, and frustration.
[7] Exhibit B.
Criminal history
46You have a criminal history spanning between 24 June 2004 and 27 April 2021. Your prior history includes offences of possessing cannabis and ecstasy, using and trafficking ecstasy, recklessly causing serious injury, possessing and using an unregistered handgun, using a firearm in a dangerous manner, theft, making a false report to police, carrying a prohibited weapon without exemption or approval, assault with a weapon, threatening to destroy property, contravening family violence intervention order, persistently contravening a family violence order, resisting and assaulting an emergency worker on duty and unlawful assault.
47Your offending has attracted various dispositions, including financial penalties, Community Correction orders (‘CCO’), an Intensive Correction Order, a wholly suspended term of imprisonment and a combination sentence.
48You have had the benefit of four community orders. In 2004, you were sentenced to a 12 month Community Based Order. On 1 July 2013, you received another 12 month CCO. A third order, in combination with 3 months imprisonment, was imposed on 1 December 2015. This offence of blackmail was committed by you whilst you were subject to a CCO imposed on the 27 April 2021.
Gravity of the offending
49The maximum sentence of 15 years imprisonment is a clear indication of the seriousness with which Parliament views the offence of blackmail.
50I regard your offending as a serious example of blackmail. It was not isolated but occurred over a period of some two weeks. The offending occurred via a voice call, text message and numerous emails. It involved threats of violence against the victim and involved threats that files calculated to embarrass him had been compiled and would be disseminated to his family members, business colleagues and the police. You introduced members of the victim’s family into your offending. There were implied threats indicating that the victim and members of his family, including his mother were being watched. You even referred to the victim’s grandson by his name. You threatened the victim with police involvement and suggested that would result in him being registered as a sex offender. The threats of violence, police involvement and dissemination of files were taken very seriously by the victim who initially complied with your demand and transferred a total sum of $8,000 into your bank account. Despite indicating to the victim that once the money was paid ‘…you have my word. It will end,’ it didn’t. You continued to make further demands, requesting an additional $10,000. You threatened to share the photographs the victim had sent with Ms Casey and her partner. The partner was, of course, you. You suggested that Ms Casey would be devastated and that she would press charges. You made an implied threat to the victim stating that you hoped he had health cover.
51While blackmail is not necessarily a crime of physical violence, its nature as a direct attack upon a specific victim means that its impact may be similar in the fear, stress and anxiety it engenders.[8]
[8]DPP v Grabovac (1998) 1 VR 664.
52The impact upon your victim was significant. He felt threatened by the fact that he was being watched by ADF personnel and was impacted by the fact that your offending included his family members and work colleagues. Feelings of anger, fear and frustration have affected him and he has struggled to sleep.
53You were subject to a CCO at the time of your offending. That is an aggravating factor.
54Whilst you utilised a false identity and email, the offending wasn’t particularly sophisticated. The money that you demanded was paid by the victim into your personal bank account.
Personal circumstances
55You were born in Geelong in 1980. You are now aged 42.
56You are the only child of your parents union. You have had no relationship with your father. He left your mother on his buck’s night just after you were born. You met your father when you were 17 or 18 and tried to develop a relationship with him over some two years. That endeavour to do so was unsuccessful.
57You grew up in less than a conducive environment. Your mother was an alcoholic. You witnessed her drinking and having parties which involved the taking of illicit drugs. She had a lot of boyfriends. You had to move around a lot because of your mother being kicked out. Your mother was verbally abusive towards you and would physically hit you with a belt.
58When you were six years old, your mother formed a relationship that resulted in three half-brothers. Your stepfather was also an alcoholic and abusive towards you. He would beat you on a regular basis, mostly by punching you. You also witnessed him physically abusing your mother. Your mother left your stepfather when your youngest half-brother was born.
59You continued to live in that abusive environment until you turned 15. You attended three primary schools and three high schools. You left school having been expelled after completing year 11. Your schooling, like your home environment, was also marred by physical and verbal abuse. This involved being physically punished by one of your principals in primary school and regular bullying. In high school, you faced repeated suspension and were expelled from all three high schools.
60You told Dr Davis, that you were a troubled kid and you were suspended for getting into fights with other students and throwing chairs through windows.
61You first consumed alcohol at the age of 13. Despite having occasional issues with alcohol, the exposure to it within your home environment, has meant that you generally have a hatred towards alcohol. You told Dr Davis that you have not consumed alcohol for many years, particularly since having children.
62You first used cannabis between the ages of 13 and 15, and became a daily user at the age of 16 or 17. You have never abstained from cannabis for a period longer than 12 months. In addition, at various junctures of your life, you have used amphetamines, methylamphetamine, heroin, ecstasy and cocaine. You have tried hallucinogenic mushrooms and have inhaled paint for a year between the ages of 15 and 16.
63You were deemed legally blind at the age of 16. You have had two corneal transplants, the first at the age of 17, and the second when you were aged 21. Losing your eyesight ended your ambition to play football.
64You have had four serious relationships, three of them involved cohabitation. The first two relationships were between the ages of 14 and 20. The third relationship resulted in marriage and two children. Your relationship with your eldest daughter is strained. Your youngest daughter, now aged 11 has maintained contact and was living with you at the time of this offending.
65Your fourth relationship lasted some 10 years and produced three more daughters, currently aged eight, four and two. This relationship ended around August 2020. You have not seen your ex-partner or three daughters since August 2020.
66Your most recent relationship was with Ms Casey. She had a teenage son with whom you got on well.
Complex mental health
67The Court has been assisted by a comprehensive psychological report dated 8 September 2022 prepared by Dr Michael Davis.[9]
[9]Exhibit 2.
68Dr Davis states:
Mr Western is a diagnostically complex man. It is my opinion that he meets criteria for several diagnosis. However, the primary diagnosis, which forms the foundation for his other clinical difficulties, is that of a severe personality disorder. This is perhaps unsurprising given his abusive childhood experiences and chronic substance misuse. Indeed, Mr Western has a very poor and fragile sense of self and identity. It is my opinion that his frantic efforts to avoid abandonment, unstable and intense relationships, identity disturbance, impulsivity, recurrent suicidal behaviour, emotional instability, and stress related dissociative symptoms meet formal criteria for Borderline Personality Disorder. Mr Western also has some prominent antisocial (versatile offending, impulsivity, irresponsibility), and to a lesser extent, obsessive compulsive (rigidity) personality features that do not meet formal criteria for any further personality disorder diagnoses. It is my opinion that Mr Western’s personality disorder is at a severe level of impairment.
It is my opinion that Mr Western meets formal criteria for several additional diagnoses that have developed upon the foundation of a severely disordered personality. Indeed, difficulties with mood, anxiety, and unusual associative and perceptual appearances are more likely to occur on such a foundation. Keeping this in mind, it is my opinion that Mr Western’s baseline mood is one of depression that is ordinarily not at the magnitude of a major depressive episode. This is known as dysthymia. Mr Western would appear to experience periodic major depressive episodes upon this baseline dysthymic mood. At the time of our assessment interview his depressed mood was not quite of this magnitude. However, when it does occur, this is a phenomenon known as “double depression.” More specifically, it is my opinion that Mr Western meets formal criteria for Persistent Depressive Disorder (with anxious distress, with intermittent major depressive episodes, without current episode).
It is my opinion that the chronic presence of “Robbie “in Mr Western’s life meets criteria for a diagnosis of Partial Dissociative Identity Disorder. This is a condition characterised by disruption of identity in which two (or more) distinct personality states are associated with marked discontinuities in sense of self and agency. One personality stated is dominant and normally functions in daily life, but is intruded upon by one or more non-dominant personality states. This is known as “dissociative intrusion.” Such intrusions are experienced as interfering with functioning and are typically aversive. Mr Western’s narrative suggested that the Robbie aspect to this personality generally manifests itself alongside Mr Western, with perhaps only rare periods where Robbie may briefly be in control. This is primarily in the context of considerable stress, which is consistent with the childhood circumstances in which Robbie was initially created.
It must be stressed that the diagnosis of partial dissociative identity disorder is a consequence, and indeed a prime example, of Mr Western’s severe personality disorder. Indeed, it is an admittedly extreme manifestation of his fractured sense of self and his lack of any coherent identity. It is certainly not indicative of someone with alternating multiple personalities.
It is my opinion that Mr Western most likely also meets formal criteria for Complex Post-Traumatic Stress Disorder. However, it is unclear if he experiences the persistent avoidance symptoms that characterise this condition. Similarly, Mr Western’s history of panic attacks arguably meets criteria for Panic Disorder, but it is unclear if he is persistently worried about having additional panic attacks or engages in maladaptive behaviour to avoid them. In any event, Mr Western’s traumatic experiences and history of panic attacks are of clinical concern, regardless of the diagnostic label.
69I accept, as conceded by the prosecution, your complex mental health diagnosis enlivens all six principles of Verdins.[10] I shall deal with the Verdins submission in more detail later in these reasons.
[10]R v Verdins (2007) 16 VR 269 (‘Verdins’).
Matters in mitigation and submissions on sentence
70The Court was assisted by written submissions filed by both parties.[11] These submissions were supplemented orally during the hearings.
[11]Exhibit C (prosecution submissions on sentence dated 9 September); Exhibit 1 (outline of plea submissions on behalf of the defence dated 8 September 2022); Exhibit 4 (outline of plea submissions on behalf of the defence dated 22 March 2023).
71On your behalf, Mr Chisholm quite sensibly conceded that the offending was a serious example of blackmail. He acknowledged that your prospects of rehabilitation are challenging and there is a need to protect the community. Mr Chisholm relied upon the following matters in mitigation:
(i)Your early plea of guilty entered during a period when the court is facing a backlog.
(ii)A degree of remorse.
(iii)Onerous conditions on remand due to COVID-19.
(iv)The application of the principles in Verdins.
(v)Deprivation in childhood giving rise to some moderation in accordance with Bugmy.[12]
[12]R v Bugmy (2013) 249 CLR 571 (‘Bugmy’).
72On behalf of the prosecution, Ms Hogan took issue with the application of the Bugmy principles submitting that whilst you experienced a disadvantaged childhood, the disadvantage did not reach such a profound level so as to reduce your moral culpability. Ms Hogan took no issue with the other matters in mitigation.
73I accept that your plea of guilty was entered at the earliest opportunity in the Magistrates Court. By pleading guilty, you have facilitated the course of justice and have taken some responsibility for your actions. You have also saved the community the time and cost of a trial and importantly, spared your victim the anxiety of having to give evidence. Giving evidence would have involved the victim being questioned about embarrassing material relating to BDSM. That, no doubt to the relief of the victim, has been avoided. The utilitarian benefit of your plea is heightened in the current COVID-19 environment when this Court is facing a considerable backlog of trials.
74In Worboyes v The Queen,[13] the Court of Appeal observed:
all other things being equal - a plea of guilty entered during the currency of the Covid-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’ he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.
[13](2021) 96 MVR 344, [39].
75Whilst your comments to Dr Davis detract from any genuine remorse,[14] I am prepared to accept that your plea of guilty and the fact that you consented in the Magistrates Court to the making of a 12 month final personal safety intervention order in respect of your victim, provides some, but limited evidence of remorse.
[14]Psychological report (exhibit 2) [91].
76You have been in custody on remand since your arrest on 20 July 2021. Your time in custody has coincided with the height of the COVID-19 pandemic. I was assisted by an affidavit dated 22 March 2023, prepared by Ms Jennifer Hosking, Assistant Commissioner, Sentence Management Unit.[15] You entered the prison system on 21 July 2021 and were placed in COVID-19 protective quarantine, where you remained until 4 August 2021. In May 2022, as a result of being a close contact with a COVID positive prisoner, you were placed in an isolation unit. As a result of returning a positive PCR test, you remained in isolation until 14 June 2022. Between 21 July 2021 and 22 March 2023, you have been subject to 126 days of COVID-19 related lockdowns.[16] This included a continuous period in lockdown of 31 days between 24 December 2021 and 23 January 2022. During this, not insubstantial period, you did not leave your cell at all and did not make any phone calls.[17] When in lockdown, you have been generally restricted to your cell. That involved all meals being provided to you in your cell. All professional visits took place through phone or video calls.[18]
[15]Exhibit 5. I have had no regard to [39].
[16]Ibid [35].
[17]Ibid [38]. There was no restriction on his ability to make telephone calls.
[18]Ibid [36].
77In addition to COVID-19 related lockdowns, you were locked down in your cell for 18 hours or more per day on 18 days.[19]
[19]Ibid [37].
78Mr Chisholm told the Court that you have had no personal visits. According to Ms Hosking’s affidavit, you have maintained phone contact with your mother and spoken to your youngest daughter on one occasion.[20]
[20]Ibid [25](b), [27](a).
79I accept that your time in custody has been onerous on account of the necessary restrictions placed upon you because of the pandemic.
80Ms Hosking’s affidavit also confirms that you have generally been a respectful, polite and compliant prisoner. You have maintained regular employment, including working in maintaining the internal grounds and as a bin billet. You have completed a number of programs, which have included Keeping Your Cool and ICE and Me programs. You have also completed a food management and traffic management course.
81Upon reception in prison, you were assessed as someone requiring intensive and/or immediate care in respect of serious mental health conditions. You have been receiving regular monitored psychiatric treatment with which you have been wholly cooperative. You have been compliant with taking your medication.
Verdins principles
82As noted earlier, no issue is taken by the prosecution that all principles in Verdins[21] are engaged.
[21] Verdins (2007) 16 VR 269 (‘Verdins’).
83In Verdins, the Court said that impaired mental functioning, whether temporary or permanent (‘the condition’), was relevant to sentencing in at least six ways, as follows:
(i)The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
(ii)The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
(iii)Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
(iv)Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
(v)The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
(vi)Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
84The Court of Appeal in Brown v The Queen[22] said:
Looking ahead, it would seem from the expert evidence that a personality disorder is likely to engage the Verdins principles only in a case of some severity. But, plainly enough, it is not for this Court to suggest any threshold level of severity which must be reached before those principles would become applicable. Senior counsel for the Director properly conceded that this was so.
[22][2020] VSCA 212 [68].
85Dr Davis makes it plain that your personality disorder is at a severe level of impairment.[23]
[23]Exhibit 2, [144].
86Dr Davis has undertaken a detailed assessment, including a consideration of some of your previous psychiatric assessments.[24] He has made a number of diagnoses. The primary diagnosis, forming the foundation of your other difficulties is that of a severe personality disorder. In Dr Davis’ opinion, your issues with abandonment, unstable and intense relationships, identity disturbance, impulsivity, recurrent suicidal behaviour, emotional instability, and stress-related dissociative symptoms meet the formal criteria for a Borderline Personality Disorder. Based upon the foundation of a severe personality disorder, Dr Davis opines that you also meet the formal criteria for Persistent Depressive Disorder (with anxious distress, with intermittent major depressive episodes, without current episode). Since the age of 11, you have had an imaginary friend named “Robbie”. Dr Davis states:
Robbie became an important part of Mr Western’s life when he was being exposed to considerable family violence and subjected to regular physical abuse. Mr Western’s narrative indicated that Robbie has continued to be present in his life during periods of considerable stress, offering him advice and advising him when to run away from danger. Mr Western is almost always aware of the presence of Robbie, although his narrative suggested that sometimes he blacks out and it would appear that Robbie is briefly in control of his behaviour. The Robbie aspect to his personality has played a protective, albeit aversive role in Mr Western’s life.[25]
[24]See letter dated 15 October 2021 prepared by Dr Louis Lee, Consultant Psychiatrist (Exhibit 3).
[25]Exhibit 2, [146].
87Dr Davis has diagnosed you with Partial Dissociative Identity Disorder. He stresses that this disorder is a prime example of your severe personality disorder, but is not indicative of someone with alternating multiple personalities.[26]
[26]Ibid [148].
88Dr Davis, states that you most likely also meet the formal criteria for Complex Post-Traumatic Stress Disorder and Panic Disorder.
89In respect of the offending, Dr Davis makes the following observations:
(i)it was committed when you were considerably stressed and in a heightened state.
(ii)Your narrative indicated that you considered BDSM to be ‘hitting women’. You engaged in such sexual behaviours with your partner solely because she enjoyed them. The fact that you considered such sexual activity as violent conduct towards women is understandable because of your childhood experience of watching your mother being repeatedly physically abused.
(iii)It is likely that upon learning of your partner’s BDSM activity with your victim, along with the photographs taken of your partner by the victim, it resulted in a very protective, albeit angry reaction on your part.
(iv)The initial motive for the offending was to punish and torment the victim.
(v)The offending needs to be viewed in the context of your multiple diagnosis, including a severe personality disorder and dysthymia with anxious distress.
(vi)Further, Dr Davis states:
In essence, Mr Western knew what he was doing was wrong as is evidenced by the false name and email address, but the thought processes leading to the offending were impacted by his mental state. (Emphasis added).
(vii)The narrative that you provided, indicated that the “Robbie” aspect of your personality was prevalent at the time of the offending. This is consistent with the overall narrative of your life.
90I also bear in mind the observations of Dr Davis set out in paragraph [152] of his report:
It is perhaps clear from Mr Western’s various diagnoses and difficulties that the experience of imprisonment is going to be more difficult for him than it would be for the typical inmate. Indeed, he has experienced suicidal ideation during this period on remand. Moreover, with no support in the community. He has no additional money coming in and is reportedly reliant on the generosity of staff for some necessities. Furthermore, the treatment he should ideally receive for his multitude of difficulties is unlikely to occur in the prison environment.
91For completeness, I note that Dr Davis having reviewed your Justice Health file, maintains his diagnoses and opinions. The Justice Health file provides support for the various diagnoses he has made.[27]
[27]See Dr Davis’ addendum report dated 23 March 2023 (Exhibit 6).
92Having carefully analysed the non-contentious report of Dr Davis, I am satisfied that your moral culpability for the offending is reduced. In light of the various diagnoses made, in particular the foundational severe personality disorder, I bear in mind in sentencing you, the long-term support and treatment that you plainly require. In view of your diagnoses, I am able to moderate sentencing considerations of general deterrence, specific deterrence and denunciation. I also accept that your various diagnoses and difficulties means that a sentence of imprisonment would weigh more heavily upon you and there is a serious risk of imprisonment having a significant adverse effect on your mental health.
93I particularly note that Dr Davis states that the treatment you require for the multitude of issues you face is unlikely to be provided within the prison environment.
94Having concluded that your moral culpability for the offending is reduced on account of your severe and entrenched Borderline Personality Disorder and associated conditions, I must also give consideration to community protection when imposing an appropriate and proportionate sentence.[28]
[28]Brown v The Queen [2020] VSCA 212, [71] – [76].
95In terms of moral culpability, I accept that it should be somewhat moderated on account of the deprivation you suffered over your formative years. You parents separated just after your birth. You did not meet your father until you were 17 or 18 years old. Your mother was an alcoholic who endured an abusive relationship with your stepfather. You witnessed your mother being physically abused. In addition you were also the victim of physical abuse at the hands of your stepfather. The abuse you suffered has left its mark. Until today, you fear your stepfather. At primary school, you were physically abused by your principal and suffered bullying. At the age of 16, you were deemed legally blind.[29]
[29]Exhibit 2, [142].
96In Bugmy, the High Court explained that childhood deprivation may be taken into account in a general way:
the circumstances that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.[30]
[30]Ibid [40].
97A reduction in moral culpability in this general manner does not require there to be a causal link between the offending and childhood deprivation. In the recent decision of Newton (a pseudonym) v The King,[31] the Court of Appeal referring to Bugmy, stated:
The High Court then observed that ‘the effects of the profound childhood deprivation do not diminish with the passage of time and repeated offending’.[32] Nothing in this part of the Court’s judgement, however, imposed any requirement that childhood deprivation must be ‘profound’ before a sentencing judge is able to consider whether that deprivation might be relevant to the assessment of moral culpability.[33]
[31][2023] VSCA 22.
[32]Bugmy (2013) 249 CLR 571, [44].
[33][2023] VSCA 22, [37].
Rehabilitation
98According to Dr Davis, you pose a moderate to high risk for general criminal offending. However, Dr Davis stresses that does not mean you pose a moderate to high risk of committing a similar offence, which occurred in highly unique circumstances.[34]
[34]Ibid [155].
99You displayed minimal insight into your offending conduct and told Dr Davis that you were ‘forced to plead guilty…because of the messages.’ Your varied and significant mental health issues will also make your rehabilitation particularly challenging.[35]
[35]Ibid [91],[132].
100When asked about your future plans, you told Dr Davis ‘I just want to be a good dad, I just want to be normal like everyone else, a good human being…’
101In order to achieve your future plans, there is a long process ahead of you. Dr Davis’ recommendations must be firmly borne in mind.[36]
[36]Ibid [156].
102This includes long-term psychological support and treatment, regular review of your psychiatric medication and treatment of substance misuse. Dr Davis opines that any offence specific treatment should proceed on an individual rather than group basis. He highlights the importance of those involved in your treatment liaising with one another to properly coordinate treatment plans. Assisting you to develop meaningful leisure activities, increase circle of pro-social contacts and supports and engaging in suitable employment will also be of potential assistance.
103Dr Davis states:
Mr Western requires long-term psychological support and treatment. While his severely damaged personality structure is quite entrenched, there can certainly be some degree of personality maturation over time, such that the behavioural manifestations of his personality disorder become less severe. This is going to be a long-term therapeutic endeavour and Mr Western should ideally be treated by someone with particular expertise in the treatment of individuals with severe personality disorder. An approach based on dialectical behavioural therapy may be most appropriate. Such sessions should also address the “Robbie” aspect of Mr Western’s personality and his ongoing difficulties with depressed mood and anxiety.
Sentencing submissions
104Mr Chisholm in his written submissions dated 8 September 2022 stated:
On the one hand the offending is serious, he has challenging prospects of rehabilitation and notable risks of re-offending, and there is a need to protect the community arising from offending linked to his mental health conditions. On the other hand, the offending is unusual and unlikely to be repeated, he has powerful matters in mitigation, and his personality disorders warrant significant reduction in the sentence than would otherwise be imposed.[37]
[37]Exhibit 1, [2].
105Mr Chisholm submitted that taking into account the objective gravity of the offending and balancing it with the mitigating factors, in particular the Verdins principles, the Court should consider a sentence that would not only punish but assist in maintaining and assisting your long term rehabilitation. Mr Chisholm urged the imposition of a term of imprisonment in combination with a CCO.
106Mr Chisholm submitted that all sentencing purposes, including rehabilitation and community protection could best be achieved by intensive and tailored treatment on a CCO.
107On behalf of the prosecution, Ms Hogan submitted that the offending was serious and despite some moderation on account of Verdins, the purposes of general and specific deterrence remained important. In particular, Ms Hogan submitted that general deterrence and denunciation were particularly relevant. She highlighted the matters set out in these reasons, impacting upon the objective gravity of your offending. In view of your entrenched personality disorder, Ms Hogan submitted protection of the community was also a relevant sentencing consideration. Ultimately, Ms Hogan submitted, despite the matters in mitigation, a term of imprisonment with a non-parole period was the only appropriate disposition.
108At the initial plea hearing, I was less inclined to consider a CCO as part of a combination sentence. However, I have carefully considered the detailed and helpful report prepared by Dr Davis. As Mr Chisholm pointed out, for the very first time, the Court has had the benefit of a thorough assessment of your mental health and suggestions for your future treatment. The treatment you require is unlikely to be available within a custodial regime.
109The initial plea hearing was adjourned for your lawyers to obtain further plea material. For reasons not entirely clear, it took a considerable period of time for the material to be obtained and the plea to be resumed. I note that you have been in custody for a significant period of time since 20 July 2021. Other than a couple of minor issues, you have been a model prisoner. You have complied with your treatment and medication regime.
110Having carefully considered all relevant matters including, but not limited to, the objective gravity of the offending, the impact upon your victim, your fragile mental state and the application of Verdins, your plea of guilty and the onerous conditions in custody due to COVID-19, relevant sentencing purposes, namely general deterrence, denunciation, specific deterrence, just punishment, rehabilitation and the protection of the community, I have determined that a sentence of imprisonment followed by a CCO aimed at your rehabilitation, and therefore, the protection of the community, is appropriate in all the circumstances.
111Mr Western, you have had the benefit of a CCO in the past. Indeed, you were subject to such an order at the time of this offending. I am giving you another opportunity which I hope you utilise with the same vigour and commitment that you have demonstrated to your treatment whilst in custody.
112In respect of charge 1, blackmail, you are convicted and sentenced to 1 year and 10 months’ imprisonment. In addition, you will be sentenced to a CCO for a period of two years commencing upon your release.
113Every CCO has core conditions that you must comply with. They are as follows:
·You must not commit any offence punishable by imprisonment.
·You must comply with any obligation or requirement prescribed by the regulations.
·You must report to and receive visits from the Secretary.
·You must report to the community corrections centre within two clear working days of your release.
·You must notify the Secretary of any change of address or employment within two clear working days of the change.
·You must not leave Victoria except with the permission of the Secretary.
·And, finally, you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure your compliance with the order.
114In addition to the mandatory core conditions, the CCO will also include the following special conditions:
· First, you must undergo any mental health assessment and treatment as directed.
· Second, you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed.
· Third, you will be subject to supervision as directed for the duration of the CCO.
· Fourth, you will be subject to judicial monitoring. That means you will have to appear before me as directed so that I can monitor your progress. I direct the first judicial monitoring hearing will take place at 9:30am on 21 August 2023.
115You must report to Reservoir Justice Service Centre within two working days following your release from prison.
116You need to understand that if you were to breach the CCO in any way, either by committing another offence or by not complying with any of the mandatory or special conditions, then you could be charged with the offence of breaching the order.
117The offence of breaching a CCO itself carries a maximum penalty of three months' imprisonment. So were you to breach the order, you would need to come back to Court and face sentencing for that breach offence. In those circumstances, you could also be re-sentenced for the offences for which you were placed on the order originally. You would then face the very real possibility of being sent back to prison.
118HIS HONOUR: So, there are serious consequences attached to any breach. Do you understand that Mr Western?
119MR WESTERN: Yes I do, Your Honour.
120HIS HONOUR: Do you consent to being placed on a CCO in the terms I have outlined and to abide by all of its conditions?
121MR WESTERN: Yes, Your Honour.
122HIS HONOUR: Thank you. Your verbal consent will be noted on the court record and is sufficient in circumstances such as this where an accused is appearing by way of an audio-visual link.
Pre-sentence detention
123Pursuant to s 18 of the Sentencing Act 1991, the period of 639 days of pre-sentence detention is declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.
Section 6AAA declaration
124Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been convicted, I would have sentenced you to a term of 4 years and 3 months’ imprisonment with a non-parole period of 2 years and 9 months.
Other orders
125I grant the forfeiture and disposal orders sought.
126I direct as suggested by Dr Davis, his two psychological reports dated 8 September 2022 and 23 March 2023 be provided to Corrections and to those involved in the treatment of Mr Western.
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