Director of Public Prosecutions v Williams
[2016] VCC 719
•17 May 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. 15-00692
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NICHOLAS WILLIAMS |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 17 May 2016 | |
CASE MAY BE CITED AS: | DPP v Williams | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 719 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Hutton | |
| For the Accused | Mr R. Backwell |
HIS HONOUR:
1 Nicholas John Williams, you have pleaded guilty to:
· One charge of using a carriage service to menace, harass, cause offence between 14 December 2014 and 15 January 2015 contrary to s.474.17(1) of the Criminal Code Act 1995 (Cth); and,
· One charge of extortion with threats to kill and inflict injury between 6 January 2015 and 10 January 2015 contrary to s.27 of the Crimes Act 1958 (Vic).
2 The circumstances of your offending are as follows.
3 For many years you have been a regular listener to radio station Triple J, an enterprise owned by the Australian Government and being a division of the Australian Broadcasting Corporation.
4 Over that period you have regularly sent SMS messages to a telephone service operated by Triple J capable of delivering messages directly to an on-air presenter. The idea was that listeners could make comment concerning the nature of music played, or a range of social or political comments. The presenter if he or she wished to do so, could respond to those comments on air.
5 Whilst many listeners utilise that facility to send messages to on-air presenters, you are of the belief that you played a key role in instigating that system. You formed the belief that your contribution had been an important one and that Triple J had profited from their introduction of such messaging from you.
6 Whether or not your role in developing that system is as you say, is not for me to determine here. It has no relevance to my sentencing considerations.
7 It is sufficient to say that over a number of years you sent many messages to Triple J referring to a large number of issues including the music played by it and the performance of its on-air presenters. Many but not all of those messages were sent by you whilst you were serving various prison sentences.
8 It is fair to say that you became obsessed with your messaging to the station.
9 By late 2014 you had formed the view that Triple J management and on-air presenters were not showing you the respect or acknowledgement that you considered that you deserved.
10 In early 2015, Triple J had organised a function to celebrate its 40th anniversary. You requested a ticket to that function. You received no reply from Triple J and were upset by that.
11 Between 14 December 2014 and 15 January 2015, you sent a number of text messages, in the region of 15 such text messages to Triple J.
12 At your plea hearing the prosecutor tendered a document entitled, "Summary of Prosecution Opening", which set out in considerable detail the contents of your SMS messages to Triple J between those dates.
13 It is not necessary for me to repeat here the full content of those messages. It is sufficient that I briefly summarise them as follows:
· Virtually all of the messages contained foul and offensive language.
· They contained many references to explicit sexual acts, often suggesting that such acts be performed with the presenter currently on air or some other Triple J employee.
· Many of the messages contained threats of violence, rape and of stabbing.
· A number of the threats were made in the context of a demand for a ticket to the Triple J 40th anniversary concert.
· A number of threats were made in the context of demands for money of varying amounts up to $110,000.
· Some of the threats were made to a particular Triple J presenter and her daughter, both of whom you referred to by name. I shall not identify that person in these remarks but I shall refer to the presenter simply as “the named presenter”.
14
Of particular concern were a series of messages sent to Triple J by you on
6 January 2015. These included the following.
· "The knife I nearly killed one of you with surely worth 50", in my view the reference being to $50,000.
· "If I don't get an invite to this big event I'm gunna walk into the ABC store and stab the closest girl. Work it out."
· "If you think I'm gunna be the fool think again."
· "And five grand now."
· "Understand this, that if I don't get ten grand in my account by party day and it goes ahead, I'll walk straight into the ABC Shop and stab the first girl I see, deep."
· "If I don't get my ten grand I'm gunna find the named presenter's house and kill her daughter."
· "Now I want 110 grand for every gaol sentence. One week or I stab the new girl in the stomach."
15 Further similar messages were sent on 7, 8, 9 and 10 January.
16 On 10 January you made further threats to stab Triple J employees and to rape their children. Later on that date you attended at an ABC Shop in suburban Melbourne. You were observed by closed circuit television. You walked directly into the shop, looked into it for some 30 seconds, and then left the shopping centre.
17 Later on the same day you sent a further message to Triple J including the following.
· "I saw there is only one girl at the ABC Shop, I'll stab her when I rob her."
· "I saw the girl I will stab today."
· "The moment I sense police I'll just kill as many of you as I can."
· "As for your children, I go back on saying that they are safe, no one is. You take and disrespect me and what's mine, I'll kill your daughters."
18 The messages continued in a similar vein until 15 January.
19 On 16 January you were arrested at your home and taken into police custody. You agreed to take part in a record of interview in which you made a number of admissions.
20 You are currently aged 40. At the time of these offences you were aged 39.
21 You are a single man.
22 By way of background, you were born in Adelaide, the youngest of four children. Your family moved to Melbourne when you were aged eleven.
23 In August 1988 (when you were aged about 13), one of your brothers was involved in a severe road traffic accident and suffered an acquired brain injury. He died recently, but after these offences that I refer to.
24 In June 1989 (when you were aged about 14), another of your brothers to whom you reported as being very close, was killed in a road traffic accident.
25 You were greatly distressed by these events.
26 Your education extended to completion of Year 11. After leaving school you successfully completed an apprenticeship as an aircraft maintenance engineer at Ansett and continued working there for a year afterwards. The completion of that apprenticeship indicates to me that you are a person with some intelligence.
27 You resigned your job at Ansett intending to study music. However at around that time you were introduced to amphetamines and heroin where use of those illicit drugs led to the commencement of various criminal behaviours.
28 You obtained work as a truck driver but such employment was interfered with by substantial periods of incarceration following convictions for criminal offences.
29 Your criminal record is indeed a dismal one. It goes back to February 2000 when you were aged about 24. You were convicted of going equipped to steal and given a suspended gaol sentence.
30 Since that time you have been convicted of many offences relating to dishonesty and violence. You have convictions for approximately 45 dishonesty offences, in the main for theft, burglary, obtaining financial advantage by deception and the like.
31 You have 11 convictions for offences involving violence including armed robbery, assault with a weapon, intentionally threatening serious injury, intentionally causing injury, and discharging a missile to cause injury.
32 In addition you have twice been convicted for making a threat to kill in 2005 and 2006 respectively. Your counsel advised on the first day of your plea hearing that he was unable to obtain instructions from you as to the circumstances concerning those two convictions.
33 On any view your criminal record is an appalling one.
34 Your most recent conviction relates to an armed robbery committed by you on 1 January 2015, during the period of your conduct the subject of these charges.
35
On 30 June 2015 you were sentenced by a judge of this court in respect of that armed robbery to imprisonment for 33 months. The judge fixing
18 months as the period before which you were eligible for release on parole. He noted at that time that you had already served 165 days of pre-sentence detention. Both the prosecutor and your counsel in this matter agreed that that head sentence extends till 15 October 2017 and that you would have become eligible for parole in relation to that sentence on 17 July 2016.
36 The authors of the pre-sentence report requested by me state that to date you have served 18 separate terms of imprisonment in the past. On the second day of your plea hearing you were overheard by me to tell your counsel that you had served only 12 such terms. In any event you advised Associate Professor Andrew Carroll, a psychiatrist briefed to provide a report on your behalf, that you had spent more than seven of the past ten years in prison.
37 The purposes for which a court is permitted to sentence offenders is set out in s.5(1) of the Sentencing Act 1991 (Vic). These include:
· To punish the offender to the extent and in a manner which is just in all the circumstances;
· To deter the offender and other persons from committing offences of the same or similar character;
· To establish conditions within which it is considered by the court that rehabilitation of the offender might be facilitated;
· To manifest the denunciation by the court of the type of conduct in which the offender engaged; and,
· To protect the community from the offender.
38 Further, s.5(2) of that Act sets out a number of matters which I must have regard to when sentencing an offender. These include:
· The maximum penalties prescribed for the offences;
· Current sentencing practices;
· The nature and gravity of the offence;
· The offender's culpability and the degree of responsibility for the offence;
· The impact of the offence on any victim of it, whether the offender pleaded guilty and if so at what stage of the proceeding;
· The offender's previous character; and,
· The presence of any aggravating or mitigating factors concerning the offender.
39 I have also noted the provisions of Part 1B of the Crimes Act 1914 (Cth) which contains sentencing principles similar to and consistent with the statements as to which I have referred.
40 The maximum penalty that can be imposed for an offence under s.474.17, that is using a carriage service in a manner which is menacing, harassing or offensive, is three years' imprisonment.
41 The maximum penalty for a person convicted of an offence under s.27 of the Crimes Act 1958 (Vic) (Extortion with a threat to kill or injure) is 15 years' imprisonment.
42 These maximum penalties demonstrate the seriousness with which both the Commonwealth and State legislatures hold these offences.
43 With regard to current sentencing practices, I was referred by counsel to a number of sentences imposed by this court and the Court of Appeal in relation to comparable offending, together with statistical information relating to such penalties. I consider that each case depends largely on its own facts but it can be seen from such sentences that the courts have generally considered such offences as serious and have imposed significant sentences upon the offenders.
44 I regard the offences committed by you as extremely serious ones.
45 For a person or persons to be targeted or even indirectly targeted by threats of death and/or violence, must be a very frightening experience for them.
46 Your counsel tendered on your behalf a handwritten letter written by you and addressed to me. In it you state that the charges relating to extortion and threats to kill were "hollow" because, "The people that knew me knew that I didn't really want or expect any money."
47 The fact is that none of the people working at Triple J knew you at all. You had merely been a person who had sent many messages to Triple J over a number of years.
48 The letter tendered demonstrates your lack of insight into your behaviour and the effects of it.
49 The fact of the matter is that you sent a large number of offensive, menacing, harassing messages to Triple J and you threatened to stab and kill Triple J staff unless you were paid large sums of money.
50 Your conduct on 10 January 2015 to which I have previously referred, is of particular concern. Your attendance at the ABC Shop, and the messages sent by you very soon afterwards, have to be viewed as extremely serious threatening conduct.
51 Threats of violence made from remote locations are made in a cowardly manner. Such threats made against young and vulnerable children are equally cowardly and horrific.
52 I have no doubt that Triple J staff and the presenter in question would have been advised of these threats for their own protection. I have no doubt that they would have been greatly distressed by your messages, as would any person. The victim impact statement from the named presenter was tendered. In it she states that she was frightened, fearful, stressed and anxious as a consequence of your messaging and that is entirely understandable.
53 You appear to have developed a dangerous and unhealthy obsession with regard to your messaging of Triple J presenters.
54 An indication as to the nature of that obsession is revealed in the sentencing remarks made by the judge who sentenced you for armed robbery on 30 June last year. That offence had been committed on 1 January 2015 in the early part of the period of the messaging the subject of these charges. You robbed a money exchange business using a knife to threaten a vulnerable female employee. After that offence you told Professor Carroll:
· That part of the reason for committing the armed robbery was your anger at the ABC for failing to give you tickets to the Triple J concert.
· That you were angry that your medication had been ceased.
· That you had decided to put yourself back in prison because you were, "Going down the path of cracking the shits at the ABC and you'll be better off back to gaol and separating myself." Accordingly it appears that you committed the armed robbery at least in part in order that you would be sent back to prison.
· In your interview with police relating to the armed robbery, you emphasised what you perceived as your mistreatment by Triple J.
55 The culpability for your offending is yours and yours alone. You have expressed views in the past that Triple J are somehow to blame for your behaviour. I reject this completely. It is vital that you understand that no one other than you bears any responsibility for these crimes. None of Triple J, its management or any of its on-air presenters are in the slightest responsible for your offending conduct.
56 I accept that you made admissions in your police interview shortly after your arrest and entered a plea at the earliest opportunity. Notwithstanding you appear to have demonstrated little genuine remorse for your offending, save that you have expressed regret for threatening the named presenter and her daughter.
57 In the handwritten letter that was tendered, you expressed no other remorse for your conduct. You continue to express strong views that Triple J has mistreated you and that it is somehow indebted to you. On the information before me, these are misguided and obsessive ideas. Unless you are able to break free of them and leave these ideas behind, you are unlikely to have any balanced or normal life in the future. An example of your lack of insight into your behaviour is that in that letter you state, "There is no crime in not stabbing someone."
58 I am in receipt of a number of reports relating to your mental health issues which were tendered at your plea hearing. They consist of:
· Two reports from Associate Professor Andrew Carroll, consultant forensic psychiatrist dated 27 June and 2 September 2015;
· Two reports from Dr Remy Glowinski, a consultant psychiatrist dated 18 January and 15 April 2016; and,
· A pre-sentence report from officers of Corrections Victoria dated 14 April 2016. I should point out that the date on that report is 14 April 2015 but both counsel assured me that it must have been prepared in 2016 on that date.
59 In June 2015, Professor Carroll was of the view:
· That you had a longstanding delusional belief that you had been exploited by Triple J.
· He could not elicit a history indicative of other psychotic symptoms however he noted that you were somewhat defensive when probed about the issue in detail, and it was possible you harboured more symptoms.
· He thought it was likely that you had a primary chronic psychotic disorder that had an existence independent of substance use, albeit with an intensity that worsened when you engaged in regular cannabis use.
· He considered the appropriate diagnosis for you was a delusional disorder although he could not entirely rule out the possibility that you were actually suffering from chronic schizophrenia.
· He thought you were insightless into your mental illness and had never had appropriate treatment for it in the form of antipsychotic medication.
· There was nothing to suggest, he thought, that your psychiatric issues were making imprisonment more difficult for you than would otherwise be the case or that imprisonment would have an adverse effect on your mental health.
60 Professor Carroll was scheduled to further examine you on 27 August 2015 at Port Phillip Prison. That examination was largely ineffective in that you walked out of the interview after four minutes. You were unable to be persuaded to complete the assessment.
61 However on that occasion Professor Carroll noted that your mood state was one of indignation and anger although you did remain in control of yourself.
62 Professor Carroll was of the view that:
· You likely suffered from an untreated psychotic illness which was either a delusional disorder or schizophrenia.
· He considered that the content of the text messages sent by you indicates at least a possibility that you were driven by active psychotic symptoms at the time they were sent, but he was unable to clarify this with you.
63 In his report dated 18 January 2016, Dr Glowinski opined:
· That it was likely that you had a morbid and delusional infatuation with the radio station and that it was very likely that you suffered from an untreated delusional disorder. He also considered that you had limited insight into your psychiatric disorder.
64 In his report dated 15 April 2016, Dr Glowinski recounted that he had been requested to interview you again by video link on that date, however the interview lasted only about ten minutes as you declined to answer further questions after that time.
65 On that date he considered that:
· Your diagnosis was one of untreated psychotic disorder and a delusional disorder.
· Typical treatment he said for such disorders involves psychiatric monitoring, referral to a local area mental health service, prescription and administration of antipsychotic medications, sometimes via injectable long acting depot. He considered it very unlikely that you would receive the recommended treatment whilst in custody.
· He considered that preparations for your release should involve tight organisation between prison services, Community Corrections, and community mental health services. He considered that an extended parole time might also benefit you and the community in allowing these arrangements to be appropriately followed up when you are released from custody.
66 The pre-sentence report from Corrections Victoria is dated 14 April 2016. In it the authors recommended that you be assessed by offending behaviour programs to determine your suitability to participate in a program designed to address your violent behaviour, should you be found suitable to participate in such a program. It was noted that you were assessed as having a high risk of general re-offending.
67 The authors of the report stated that the requirements of a Community Corrections Order had been discussed with you, that you only agreed to comply with some of the possible requirements of such an order. In particular it was stated that you refused to engage in any form of mental health treatment as you do not believe that you required such intervention but said you would do the, "Bare minimum conditions." Given your previous performance on parole as well as your dictation as to which conditions you would and would not comply with, the authors assessed you as being unsuitable for the imposition of such an order.
68 Your counsel submitted, and I accept, that you have reached a stage where you are at some risk of becoming institutionalised. Whilst that maybe so, I consider that to release you into the community would place the community or various members of it at risk. I consider that a term of imprisonment is required. It is hoped that appropriate treatment in the form of psychiatric monitoring and antipsychotic medication can be provided during your term of imprisonment.
69 A copy of these sentencing remarks together with the reports of Associate Professor Carroll and Dr Glowinski should be provided to prison authorities in the hope that such treatment can be provided to you.
70 On the basis of your history and the reports previously referred to, I have reached the conclusion that your rehabilitation prospects are relatively poor. Your prospects really depend on the receipt by you of appropriate treatment by way of antipsychotic medication. It is far from clear to me that you would agree to comply with such treatment at this time. Your real problem is your lack of insight into your need for psychotic treatment. Until you obtain such insight, it appears you are unlikely to achieve rehabilitation in the near future.
71 It was not submitted on your behalf that principles enunciated in the Court of Appeal decision of Verdins were applicable to you. Nevertheless I consider that it is likely that your delusional disorder and psychotic condition had an input into your offending behaviour. There was no suggestion in the reports referred to that you did not understand that your behaviour was wrong.
72 I was informed that your parents intend to relocate from Melbourne back to Adelaide and they are unlikely to be regular visitors whilst you remain in prison. I accept that this will make any period of incarceration more difficult for you.
73 In considering your sentence I have had regard to s.5(4) of the Sentencing Act 1991 (Vic) and s.17A of the Crimes Act 1994 (Cth). Having considered all other available sentences, I am satisfied that no sentence other than one of imprisonment is appropriate in the circumstances of your case. In particular I accept the prosecution's submission that in sentencing you, protection of the community is of real significance.
74 With regard to Charge 2, that is the charge relating to extortion with threats to kill and inflict injury contrary so s.27 of the Victorian Crimes Act, you are convicted and sentenced to a term of imprisonment of five years.
75 With regard to the other charge, Charge 1, using a carriage service to menace, harass, or cause offence contrary to s.474.17(1) of the Criminal Code Act 1995 (Cth), you are convicted and sentenced to imprisonment for a period of 12 months. I consider that your conduct constituting this second offence or Charge 1, is part of a continuing course of conduct closely associated with your conduct constituting Charge 2 and I direct that this sentence be served concurrently with the sentence imposed in respect of Charge 2.
76
Section 14 of the Sentencing Act 1991 (Vic) provides that where a court has sentenced an offender to be imprisoned in respect of an offence and has fixed a non-parole period, and where before the end of that non-parole period the offender is sentenced by a court to a further term of imprisonment in respect of which it intends to fix a non-parole period, the court must fix a new single
non-parole period in respect of all of the sentences that the offender is to serve or complete. That section has application here because of the uncompleted sentence imposed on you by this court last June
77 I direct that you not be eligible for parole for a period of three years commencing today in accordance with s.14 of the Sentencing Act 1991 (Vic). That shall be the new non-parole period in respect of these offences, and in respect of the uncompleted sentence imposed on 30 June 2015.
78 I have had regard in fixing that period to the non-parole period already served under that earlier sentence.
79 In case of doubt, pursuant to s.16 of the Sentencing Act 1991 (Vic), the sentences that I have imposed today are to be served concurrently with the sentence imposed by the court on 30 June 2015.
80 I note that in your current circumstances there is no pre-sentence detention period to be taken into account.
81 Pursuant to the provisions of s.6AAA of the Sentencing Act 1991 (Vic), I declare that, had you not pleaded guilty to these offences, I would have sentenced you to a total effective sentence of six years and six months' imprisonment, and directed that you not be eligible for parole for a period of four years.
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HIS HONOUR: My understanding Mr Prosecutor is that there are no other ancillary orders sought, is that correct?
MR HUTTON: That's correct Your Honour.
HIS HONOUR: Yes. All right, thank you, Mr Williams may be taken downstairs.
MR HUTTON: Sorry Your Honour, just before Mr Williams leaves.
HIS HONOUR: Yes, just bring Mr Williams back in please.
MR HUTTON: It's my fault I suspect Your Honour. I understand pursuant to the Commonwealth sentencing provisions, Your Honour has to specify a date for the start of that sentence. I presume that - - -
HIS HONOUR: It starts today.
MR HUTTON: Yes Your Honour, thank you.
HIS HONOUR: Is that all that's required?
MR HUTTON: As I understand it, yes Your Honour.
HIS HONOUR: Thank you.
OFFENDER: So the minimum non-parole is three years?
HIS HONOUR: That's correct. Anything else?
MR HUTTON: No Your Honour.
MR BACKWELL: No sir.
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