Kamal v The Queen
[2021] VSCA 27
•25 February 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0122
| SITI KAMAL | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | FERGUSON CJ and McLEISH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 February 2021 |
| DATE OF JUDGMENT: | 25 February 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 27 |
| JUDGMENT APPEALED FROM: | [2020] VCC 254 (Judge Gaynor) |
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CRIMINAL LAW – Appeal – Sentence – Blackmail – Application for extension of time – Offending involved persistent demands of parents of dying child for payment to return telephone containing images of child – Applicant threatened to erase images or sell telephone – Telephone never in her possession – Whether judge made specific error by characterising offending as ‘amoral’ or excessively focusing on moral character of offending – No specific error shown – Whether sentence of three years with non-parole period of two years manifestly excessive – Sentence stern but within available range – Aitkin v The Queen [2017] VSCA 103, Director of Public Prosecutions v Oksuz (2015) 47 VR 731, Loftus v The Queen [2019] VSCA 24, considered – Crimes Act 1958 s 87(1) – Sentencing Act 1991 s 5(2)(d) – Proposed appeal lacks sufficient prospects of success – Application for extension of time refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T R Marsh | Stary Norton Halphen |
| For the Respondent | Mr J Lewis | Ms A Hogan, Solicitor for Public Prosecutions |
FERGUSON CJ
McLEISH JA:
On 31 October 2019, the applicant pleaded guilty before a judge of the County Court to a single charge of blackmail, contrary to s 87(1) of the Crimes Act 1958. The maximum penalty for blackmail is fifteen years’ imprisonment.[1]
[1]Section 87(1) provides that a person is guilty of blackmail, relevantly, if the person makes any unwarranted demand with menaces with a view to gain for that person.
On 17 March 2020, the judge sentenced the applicant to a total effective term of three years’ imprisonment, with a non-parole period of two years.[2]
[2]DPP v Kamal [2020] VCC 254, [83]–[84] (‘Reasons’). The judge stated that, but for the plea of guilty, she would have imposed a total effective sentence of four years and six months’ imprisonment, with a non-parole period of three years and six months. At the hearing of this application, counsel for the applicant informed the Court that, as a result of the applicant’s entitlement to emergency management days under s 58E of the Corrections Act 1986 because of COVID–19 lockdowns in the prison system, her earliest release date is currently around 15 April 2021.
The applicant now seeks leave to appeal against the sentence on grounds that the judge erred in finding that the offending and the applicant were ‘amoral’, and that the head sentence and non-parole period were manifestly excessive. The applicant also seeks an extension of time within which to appeal.
For the reasons that follow, the proposed appeal has insufficient prospects of success to justify extending time, and so the application for an extension of time should be refused.
Background
The applicant is a Malaysian national who has resided in Australia since September 2018. At the time of her offending, she was 24 years’ old and worked as a food delivery cyclist.
On 20 April 2019, Jay and Deanne Windross were at the Chadstone Shopping Centre. Mrs Windross inadvertently left her telephone in a bathroom cubicle, and it was gone when she returned to recover it.
The telephone contained the only copies of many hundreds of images of Mr and Mrs Windross’s eleven month old daughter, Amiyah. At that time, Amiyah was gravely ill with a neurological condition she had suffered since birth, and was under care at the Monash Children’s Hospital.
That evening, Mr Windross made a public appeal for assistance for the return of the telephone, including via a post on a social media platform. The post described the importance to Mr and Mrs Windross of the photographs stored on the telephone, and provided Mr Windross’s personal contact details. It promised an unspecified cash reward for the telephone’s return. The post was disseminated on social media, and was highlighted by other media outlets.
Some days later, on 23 April 2019, Mr Windross began receiving messages from the applicant in which she demanded $1,000 in return for the telephone. In fact, the applicant never had possession of the telephone.
That evening, Amiyah was in a very serious condition. Mr Windross replied to the applicant, ‘[m]y baby is in her last minutes … Can we discuss this tomorrow? She’s about to leave us’. Later that evening, the applicant replied to Mr Windross ‘how?’. Mr Windross replied, ‘I don’t know yet … I can’t think at the moment. My baby isn’t going to last out the night. What do you suggest?’ Later that night, the applicant replied, raising the possibility that she would sell the telephone if she was not paid the amount demanded. She stated, ‘please transfer me money I will return u the phone, or maybe I just sell it’ and ‘you may help me today, god may help you’.
In the early hours of the following morning, Amiyah passed away.
Less than half an hour later, at 2:26 am, the applicant messaged Mr Windross, again raising the prospect of selling the telephone, as well as erasing the telephone’s contents. She stated, ‘[p]lease, I’m begging you, I don’t want to sell and erase all of [your] memory, I promise you I am an honest person’.
Later that morning, at 9:41 am, the applicant messaged Mr Windross requesting an update. Within minutes, Mr Windross informed the applicant that their daughter had passed away, stating:
[p]lease don’t erase anything. Our baby passed away in our arms early this morning. You have our memories of her. Please let us have some rest and then we will organise something. I promise.
The applicant promised to keep the telephone and return it once Mr Windross had deposited the amount demanded. Shortly after noon that day, Mr Windross again messaged the applicant, stating ‘can we please make arrangements … I have $1,000 cash, please don’t sell my phone I need to have the memories’. The applicant sent Mr Windross a screenshot of a Commonwealth Bank of Australia account in her name, requesting that the amount be transferred into her account.
Shortly afterwards, Mr Windross sent a message promising to pay but requesting confirmation that the applicant had the telephone in her possession. No confirmation was provided. Nonetheless, the applicant continued to request payment, including in the afternoon, when the applicant messaged Mr Windross, asking ‘are you going to deposit or not’. The messaging between Mr Windross and the applicant concluded later that evening.
In all, there were 160 messages exchanged between the applicant and Mr Windross in a 24 hour period, 92 of them sent by the applicant.
The applicant was arrested by Victoria Police two days later.
Reasons for sentence
After describing the circumstances of the applicant’s offending, the sentencing judge turned to the victim impact statements of Mr and Mrs Windross.
In their separate statements, Mr and Mrs Windross emphasised that the applicant had knowingly, and ultimately pointlessly, made demands on their time and emotional resources during the very last moments of Amiyah’s life.[3] As Mrs Windross explained:
[3]Reasons [23], [30]–[31].
While myself and my husband laid in a hospital room with our 11 month old daughter slowly dying in our arms we had a woman who had absolutely no care for the turmoil we were facing. Demanding money from us. Taking our time, attention and focus away from the last moments of our daughter’s life.
Similarly, Mr Windross stated that the applicant’s demands ‘took moments away from the last opportunity I could have with my breathing daughter’. The applicant’s demands, Mr Windross explained, were made whilst:
my wife and I were cradling our only child as her heartbeat began to beat slower and slower. The fact that I told [her] that our baby was dying in our arms and that I wanted to discuss the return of the phone at a later time wasn’t a deterrent …
Mr and Mrs Windross also highlighted the emotional distress caused by the applicant’s false claims that she had the telephone. Those false claims had raised then dashed hopes that the telephone (and the photographic record of Amiyah’s life it contained) might be returned to them. Mr Windross described their ‘hopes of seeing our daughter in happier and more positive times’ having been ‘ripped’ from them.
In his statement, Mr Windross also said that the applicant’s demands had been accompanied by distressing threats, designed to bait Mr Windross to respond more urgently, including the apparent threat to erase or delete the contents of the telephone.[4]
[4]Ibid [31]; see also [10] and [12] above.
The judge concluded that the applicant’s offending ‘added immeasurably to the terrible anguish’ Mr and Mrs Windross experienced as their daughter passed away, and in the aftermath of her death. The anguish caused by the offending remains with them.[5]
[5]Ibid [32].
Next, the judge turned to the applicant’s personal circumstances. The judge noted the applicant’s youth, and lack of any previous criminal history.[6] She recorded that the applicant had had a difficult adolescence in Malaysia, including an incident of sexual abuse at the age of fourteen, which caused disruption within her extended family. From that time on, the applicant’s education suffered, and she was expelled from one school. The applicant reported self-harming behaviour commencing at around that time.[7] She also began using alcohol, and ultimately, during her later adolescence and early adulthood, cannabis and methamphetamine.[8] There was also evidence of traits of post-traumatic stress disorder arising from the applicant’s adolescence, although these traits were not sufficient to found a diagnosis of post-traumatic stress disorder.[9]
[6]Ibid [77].
[7]Ibid [46].
[8]Ibid [36]–[37].
[9]Ibid [46].
The judge recorded that the applicant married at the age of twenty-one. The marriage was described by the applicant as tumultuous, and involving periods in which her husband drank to excess and assaulted her. The applicant and her husband moved to Australia in late 2018 with the hope of earning money which could be sent back to the applicant’s family in Malaysia, including her two children who live with and are cared for by her mother. That hope was largely not realised, as the applicant and her husband earned less than expected in their relatively short time in Australia. However, there was no evidence that their financial situation was dire or desperate.[10] The applicant’s marriage had become strained,[11] although her husband has continued to visit her in prison and provided a character reference.[12]
[10]Ibid [71].
[11]Ibid [38], [40], [43].
[12]Ibid [43], [50].
The judge referred to evidence from a neuropsychologist, Mr Warwick Brewer. This evidence identified that the applicant, while not suffering from any intellectual disability, neurological injury or mental illness, nonetheless has a ‘high loading’ on chaotic personality traits, including elevated levels of impulsivity, mood changes, temper, and suspicion.[13] There were also indications of a tendency towards instant gratification and a correspondingly diminished ability to forward plan. Mr Brewer’s report explained that it was possible that the applicant’s:
chaotic and disorganised personality features which are by definition characteristically associated with excess emotional expression, leave [her] with reduced ability to exercise sound judgement and reasoning.[14]
[13]At the final plea hearing, the applicant abandoned reliance on an earlier report from a psychologist assessing her as having an intellectual disability.
[14]Reasons [46]–[47].
The judge accepted that the applicant’s offending was impulsive, short-lived and unsophisticated, facilitating her early detection and arrest.[15]
[15]Ibid [78].
The judge also noted that the applicant had, by her guilty plea (albeit in the face of a strong prosecution case) spared witnesses from testifying, and saved the public resources that would otherwise have been expended on a contested trial.[16]
[16]Ibid [74].
The judge also acknowledged that the applicant had provided two letters of apology written to Mr and Mrs Windross. These letters evidenced ‘considerable contrition’ but, written in the aftermath of arrest and in anticipation of court proceedings, could not be accorded much weight.[17]
[17]Ibid [74].
In terms of the effect of custody on the applicant, the judge noted that the nature of her offending meant that her time in custody had largely been spent in the more restrictive conditions of a protection unit.[18] But the judge also referred to Mr Brewer’s evidence that ‘paradoxically’, persons with the applicant’s disorganised and chaotic personality type find the highly structured environment of prison therapeutic. There was evidence that the applicant had already completed a number of vocational programs in prison.
[18]Ibid [42].
The judge also acknowledged that the applicant would face deportation on completion of her custodial sentence. However, the judge did not consider that deportation would be a significant added burden, as she had spent a relatively short time in Australia and her parents and children lived in her country of origin.
The judge made reference to other sentencing decisions for the offence of blackmail, but noted that those decisions encompassed a very wide variety of offending. She considered the present case to be ‘unique’ and to be dealt with on its own facts.[19] In the unusual circumstances of the case, the judge considered the appropriate sentencing focus to be the effects of the offending on the victims.[20]
[19]Ibid [67].
[20]Ibid [68].
In concluding, the judge characterised the objective gravity of the offending and the applicant’s moral culpability as of the ‘highest order’,[21] and aggravated by the surrounding circumstances.[22] This was because the offending was inspired by and sought to exploit Mr and Mrs Windross’s suffering, and persisted after the applicant became aware that Amiyah was shortly to die and, afterwards, that she had died. The judge stated:
Short lived though this offending was, it occurred during a period of intense suffering by the Windross[es], in circumstances where I am satisfied you were entirely aware they were attending to their dying daughter. I am also satisfied you understood from the outset why they were desperate to retrieve Mrs Windross’ mobile phone as had been made clear by Mr Windross’ Facebook post. Your efforts to obtain this money continued even after you learned of Amiyah’s death.
That you should be inspired in the first place by such suffering to offend in this way, much less continue it as intensely as you did even after being told Amiyah was dying and then of her death, I find to be so reprehensible as to be amoral. I regard the objective gravity of this offending and your moral culpability to be of the highest order. [23]
[21]Ibid [70].
[22]Ibid [68].
[23]Ibid [69]–[70].
The ‘repellent nature’ of the applicant’s offending, the judge stated, was further compounded by the applicant’s false representation that she had possession of the telephone, which worsened the devastation experienced by her victims in the aftermath of their daughter’s death.[24]
[24]Ibid [72].
The judge considered that the personality traits identified by Mr Brewer did not detract from the ‘cruelty’ of the applicant’s conduct. In the absence of a ‘psychological condition’ undermining the applicant’s capacity to ‘understand right from wrong’, the judge considered that the ‘immorality’ of the applicant’s conduct must have been clear to her ‘from the outset’.[25] Nor was there any evidence of dire financial need which might have offered a plausible explanation for the offending.
[25]Ibid [73]–[74].
The judge concluded:
The trauma you deliberately inflicted upon people already experiencing the gravest of distress, your exploitation of their evident desperation and vulnerability mean that denunciation of your conduct and just punishment are the principles which dominate the sentencing exercise before me. Ultimately, I am not satisfied that the term you have already served sufficiently reflects the objective gravity of your offending, or your moral culpability.[26]
[26]Ibid [81].
Extension of time
The applicant seeks an extension of time to file her notice of application to appeal. In support of that application, a supporting affidavit affirmed by her solicitor states that the applicant gave instructions to apply for leave to appeal on the date she was sentenced, but that her lawyers’ preparation of the application was delayed for reasons beyond the applicant’s control. These reasons included significant disruptions to the working arrangements of the firm of solicitors acting for the applicant as a result of COVID–19 public health measures, and consequential delays in obtaining funding.
Counsel for the applicant emphasised that despite these disruptions, there had been an ongoing effort on the part of the applicant’s lawyers to secure relevant materials and to obtain funding, while progress was made towards filing the application for leave to appeal. It was said that there had been a good explanation for the delay, and no prejudice to the respondent. In those circumstances, it was said that the application for an extension of time should turn on the merits of the application.
Counsel for the respondent accepted that the delay was beyond the applicant’s control and that the application for an extension of time should turn on the merits of the proposed appeal.
It is therefore convenient to turn to the proposed grounds.
Proposed grounds of appeal
The applicant relies on the following two proposed grounds of appeal:
1. That the learned sentencing judge erred in finding that:
(a) ‘absent a frank psychological condition undermining’ the applicant's ‘capacity to understand right from wrong’; and
(b) as a result of the ‘gravity’ and ‘reprehensible’ nature of the offending,
the offending, and by extension, the applicant, were ‘amoral’.
2. In all the circumstances the head sentence imposed and the non-parole period fixed are manifestly excessive.
Merging of the proposed grounds of appeal
As drafted, the first and second proposed grounds are relatively distinct: a specific error ground and a manifest excess ground. But in the applicant’s written case, and then in oral argument, the distinction between the grounds eroded considerably.[27]
[27]In the applicant’s written case, the two proposed grounds were addressed together.
The first proposed ground is that the judge made a specific error by mischaracterising the offending as so grave and reprehensible as to be ‘amoral’, in the absence of underpinning psychological evidence. But in oral argument, counsel for the applicant relied on the judge’s moral characterisation of the applicant’s offending in a considerably broader way — not just as constituting a specific error (rather differently identified), but as an error that overwhelmed the sentencing discretion and so produced a manifestly excessive sentence. This approach virtually merged the two proposed grounds. Counsel for the applicant accepted that the two proposed grounds, as they emerged in oral submissions, had become tightly interwoven and suggested that they could be understood as a single idea expressed with different emphases. Counsel for the respondent ultimately addressed the two proposed grounds in the interrelated form in which they were orally argued.
As a result, it is convenient to address the two proposed grounds together.
Submissions
Applicant’s submissions
Counsel for the applicant contended that the judge’s use of the descriptors ‘amoral’ and ‘immoral’ in her reasons was indicative of the judge’s preoccupation with the moral character of the applicant’s offending, a preoccupation also said to be discernible in the judge’s comments at the plea. A preoccupation with immorality was said to be unhelpful, because it is trite that any offending — a contravention of the moral standards of society codified in the criminal law — is necessarily immoral. Immorality was said, therefore, to be a conclusion rather than a useful premise.
Further, by focusing on the moral character of the offending, the judge was said to have improperly substituted a narrow moral enquiry for the broader enquiry prescribed by s 5(2)(d) of the Sentencing Act 1991. That provision requires that account be taken of the applicant’s ‘culpability and degree of responsibility for the offence’ as one sentencing consideration among many.[28] It was significant, counsel for the applicant submitted, that in s 5(2)(d), the word ‘culpability’ is not modified by the word ‘moral’. ‘Culpability’, it was said, was essentially synonymous with the phrase which follows it, ‘degree of responsibility’. Section 5(2)(d) was said to mandate a larger enquiry as to the blameworthiness or criminal responsibility of the offender, of which the moral character of the offending may play a part, but only a part. In that larger enquiry, the focus is not on the intrinsic moral character of the act but the nature of the accused’s participation in the act.
[28]Sentencing Act s 5(2)(d).
That enquiry, it was said, must therefore look to matters such as the nature of the acts constituting the offence, the degree of planning and premeditation, the offender’s motivation, the duration and persistency of offending, including whether the offending ceased prior to detection, and the sophistication of the offending. The judge’s focus on the immoral character of the offending was said to have caused her to overlook these factors, which pointed to a lesser sentence. The applicant’s offending, albeit persistent, was short-lived, opportunistic, so unsophisticated that it was foredoomed to detection, desisted from prior to arrest, and ultimately unsuccessful. It involved no breach of trust nor threats of violence or humiliation. The absence of these elements suggested a temporary lapse in moral judgment, rather than a sustained commitment to offending. Accordingly, this suggested a lesser degree of culpability, in the sense of criminal responsibility.
Counsel for the applicant made the related submission that the judge had given primacy to the impact of the offending on the victims.[29] Again, it was said that this could be seen both in the reasons,[30] and in comments made by the judge at the plea. Counsel accepted that Mr and Mrs Windross were subject to ‘exquisite vulnerability’. However, he submitted that ‘desperation and vulnerability’ on the part of the victims was an essential and therefore unsurprising feature of the offence of blackmail. It was thus wrong to treat the presence of distress or vulnerability on the part of the victims as a differentiating factor in this case.
[29]Sentencing Act s 5(2)(daa), (da).
[30]See [31] above.
Ordinarily, it was submitted, it is the blackmail itself which causes a victim’s desperation and vulnerability — that is, it is created by the blackmailer’s threat that, unless the victim does what is demanded, something which the victim wishes not to occur will occur. The threat itself is what makes the victim vulnerable to the pressure exerted by the offender. In contrast, counsel submitted, the desperation and vulnerability of Mr and Mrs Windross pre-existed the applicant’s offending, and it was this desperation and vulnerability which the applicant sought to exploit in an opportunistic manner. Counsel submitted that the exploitation of pre-existing vulnerability may be seen as involving lesser moral culpability (or at least no greater moral culpability) than the orthodox blackmail case in which the vulnerability is created by the act of blackmail itself.
In addition to constituting an unduly narrow approach to s 5(2)(d), it was submitted that the judge’s focus on the moral character of the offending affected the sentencing synthesis more broadly. That focus had overwhelmed what should have properly been a ‘sober and intellectual’ sentencing exercise, and became the central ‘tent pole’ about which the sentence was pitched. It had a ‘compounding effect’ because the judge’s assessment of the moral gravity of the offending was said to have caused her to be dismissive of relevant mitigating features, such as the applicant’s remorse and prospects for rehabilitation.
As to the applicant’s remorse, it was said that the judge unfairly discounted her evident contrition on the grounds that (a) the ‘immorality’ of the offending ought to have been apparent to her prior to offending and (b) the letters of contrition were written in the aftermath of her arrest and in advance of the plea. As to the timing of the letters of contrition, counsel observed that the period between arrest and sentencing is the point at which remorse might ordinarily be expected to arise.
As to the applicant’s rehabilitation, it was said that the judge’s central assessment of the moral gravity of the applicant’s offending led her to discount factors supportive of prospects of rehabilitation. The judge diminished the applicant’s lack of criminal history on the basis that she had offended so ‘gravely’ within her short time residing in Australia, and diminished the applicant’s youth on the basis that in cases of serious offending it was a factor with lesser weight.
As mentioned, the applicant’s submissions as to manifest excess were premised on these submissions. Essentially, it was said that the sentence was manifestly excessive because the sentencing judge had allowed a preoccupation with the moral character of the applicant’s actions to overwhelm the sentencing synthesis and so produce a manifestly excessive sentence.
But the applicant also contended that manifest excess in the applicant’s sentence was revealed by reference to comparative sentences. Counsel referred to statistics produced in 2018 by the Sentencing Advisory Council to the effect that: (a) in more than a third of blackmail convictions, no custodial sentence was imposed; and (b) where custodial sentences were imposed, sentences of three or more years were imposed in only 11.5 per cent of cases. Counsel observed that the longest head sentence for blackmail in recent years was only slightly longer than the present sentence: three and a half years. That case, Aitkin,[31] was said to be an especially grave example of blackmail. In contrast to the applicant’s offending, it involved sustained and highly persistent offending over a period of months, violent threats against the victim and her family, planning and sophistication, and breach of an intervention order.
[31]Aitkin v The Queen [2017] VSCA 103, [101]–[111] (Weinberg and Kyrou JJA).
As a result, it was said that the applicant’s sentence was very close to the top of the ‘available range’ of sentences. In addition, counsel identified other blackmail cases which involved aggravating features absent from the applicant’s offending but
in which sentences lower than the present were imposed.[32] The judge was taken to these cases at the plea, but did not make reference to them in her reasons. It was said that the judge’s failure to do so indicated that she had paid insufficient regard to current sentencing practices.
Respondent’s submissions
[32]DPP v Turner [2018] VCC 1355 (Judge Cannon), where the offender was sentenced to a two-year community correction order after fabricating his own kidnapping and unsuccessfully demanding $1,200 from his mother in exchange for his safe return, and DPP v Cummins [2020] VCC 102 (Judge Cahill) where the offender was sentenced to one and half years’ imprisonment after successfully demanding $5,650 in smaller increments from a couple with whom he had previously participated in sexual activity, by repeatedly threatening to disseminate sexually explicit photos of them.
The respondent contended that the judge’s use of the adjective ‘amoral’ was broadly descriptive, but not legally significant. The use of an inapt descriptor is not an appealable error. In any event, it was said not to be inapt. This was because it followed from the judge’s earlier findings that the offending (a) sought to take financial advantage of, and compounded, Mr and Mrs Windross’s intense suffering, and (b) though short-lived, persisted past the points at which the applicant became aware of Amiyah’s imminent death, and later, her death.
As to whether a ‘preoccupation’ with the moral character of the offending overwhelmed the sentencing exercise and produced a manifestly excessive sentence, counsel for the respondent made several interlocking submissions.
First, it was submitted that the judge was correct to identify that the gravity of the offending and the applicant’s moral culpability were both very high. Culpability, for the purpose of s 5(2)(d), was not distinct from moral culpability. The judge properly recognised that the applicant’s commitment to exploit the acute vulnerability of her victims for the purposes of making money made her offending particularly grave and her moral culpability particularly high. Counsel submitted that it was not to the point that desperation and vulnerability are routine features of blackmail offences. There are, as the judge properly recognised, degrees of desperation and vulnerability, and degrees of exploitation. The high degree of pre-existing desperation and vulnerability in this case, and the applicant’s willingness to exploit and compound that desperation and vulnerability, set this case apart.
Secondly, it was submitted that it could not be said that the judge’s focus on matters of moral culpability had distracted her from considering other factors said by the applicant to be relevant to the assessment of blameworthiness or criminal responsibility. For instance, the judge expressly recognised that the offending was impulsive, short-lived and unsophisticated.[33] On the other hand, the judge also recognised the applicant’s financial motive, and her persistence during the compressed period of her offending, even in the knowledge of the worsening of Amiyah’s condition and her death.
[33]Reasons [78].
Thirdly, it was submitted that the applicant had not shown that the judge’s focus on gravity or moral culpability had overwhelmed the sentencing exercise. The applicant had not pointed to specific matters requiring consideration that were missing from the sentencing remarks or improperly considered. The judge considered the applicant’s statements of remorse, and was entitled to the degree of scepticism she expressed. The judge gave the applicant credit for her youth and lack of previous offending, while expressing an understandable uncertainty as to her overall prospects of rehabilitation.
Finally, the respondent contended that the sentence was not outside the available range. The respondent submitted that the absence of other potential aggravating features, emphasised by the applicant, did not compel a conclusion that the offending was not very serious — simply that it might have been even more serious. The judge’s conclusion that the offending was very serious was amply supported by the applicant’s conduct in the context of the plight of Mr and Mrs Windross. The special circumstances of the case were said to make ready comparison with any case, including Aitkin, problematic. In any event, even against comparable sentences, it could not be said that the present sentence was outside the available range.
Analysis
The offending in this case was of an unusual and striking character. The applicant responded to a public plea for help from two especially vulnerable people in a terrible situation by preying upon them for financial gain. She persisted in her demands even after becoming aware that their plight was at its most grave. It is hardly surprising that the sentencing judge regarded the objective gravity of the offending as being of the highest order. It was, as the judge said, cruel and repellent. It demanded denunciation as part of the sentencing synthesis.
We do not accept that the sentencing judge allowed these considerations to distract her from a proper assessment of the culpability of the applicant. There was no Verdins argument in this case, for example, such as would have put the extent of the applicant’s moral culpability squarely in issue. She knew her actions were wrong. In terms of s 5(2)(d) of the Sentencing Act, the applicant was culpable and fully responsible for her conduct. In those circumstances, the level of the applicant’s culpability and of the objective gravity of the conduct became two sides of the same coin. Once the objective gravity of the conduct was found to be of the highest order, so was the applicant’s culpability for it. It is understandable therefore that each time the judge referred to the moral culpability of the applicant, she referred in the same terms to the objective gravity of the offending.[34] In that connection, the absence of the word ‘moral’ in s 5(2)(d) is not significant. It is plain that ‘culpability’ in that provision and the ‘moral culpability’ to which sentencing courts refer are one and the same.
[34]Ibid [70], [81].
The fact that the judge described the offending as ‘amoral’ does not point to any error. In this case, it makes little difference whether the applicant’s conduct is described as immoral or amoral. In context, the judge was plainly stating that the offending was reprehensible and known by the applicant to be so.
In our view, the applicant’s claim that the judge allowed an excessive focus on the intrinsic moral character of the offending to displace sentencing considerations bearing on the moral culpability of the offender is not made out. As just noted, the judge looked to whether the applicant knew her actions were wrong. She noted the short period of offending, and that it was impulsive and unsophisticated. However, she also observed that the applicant had deliberately inflicted trauma on people already experiencing the gravest of distress.[35]
[35]Reasons [81].
We do not consider that the seriousness of the offending was lessened by the fact that Mr and Mrs Windross were already in a state of distress and vulnerability before the applicant first approached them. We very much doubt that any distinction is usefully drawn between cases of pre-existing vulnerability and distress and those where it is the actions of the blackmailer that cause distress and heightened vulnerability. Almost by definition, a person attempting blackmail sees the victim as potentially vulnerable to being threatened, on some basis that pre-exists the threat. In any event, the suggested distinction does not assist the present applicant. While it is true that the telephone had already been lost, the threat made by the applicant was that the telephone would be sold. This created a new vulnerability, to the permanent loss of photos that were at that point merely lost. Moreover, the applicant knowingly exacerbated the distress Mr and Mrs Windross were already suffering, both by offering false hope that their photos would be recovered, and by continuing to demand money even after being told that Amiyah was about to die, and even after she knew she had died.
We also reject the submission that the manner in which the judge dealt with the applicant’s statements of remorse and her prospects of rehabilitation point to the specific error alleged. It was open to the judge to place limited weight on the letters written after the applicant’s arrest, especially in light of her finding that the immorality of the applicant’s actions was clear to her throughout. In respect of rehabilitation, the judge was understandably guarded by reason of serious offending having occurred soon after the applicant came to Australia.
For these reasons, we do not consider that specific error has been shown. To the extent that the specific error ground depended on the contention that the moral character of the offending had been allowed to swamp other sentencing considerations, we do not accept that either. For the reasons given above, those other matters received due weight.
It remains to deal with the manifest excess ground.
The statistics relied on by the applicant appear to suggest that the present sentence is at the higher end of those imposed for blackmail in recent years. The limitations on the utility of sentencing statistics, as distinct from individual sentences from comparable cases, have been noted on many occasions.[36] Statistics do not disclose details of the offending or matters particular to the offenders in the cases from which they are derived. That is especially significant in crimes such as blackmail which may be committed in a very wide range of circumstances. In any event, it may be accepted that, irrespective of the statistics, the present sentence is properly seen as stern. But of course the manifest excess ground requires more, namely that the Court be satisfied that the sentence is wholly outside the range of sentencing options available, so that something must have gone badly wrong in the exercise of the sentencing discretion.[37]
[36]Wong v The Queen (2001) 207 CLR 584, 606 [59] (Gaudron, Gummow and Hayne JJ); Hili v The Queen (2010) 242 CLR 520, 535 [48] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); R v Pham (2015) 256 CLR 550, 561 [32]–[33] (French CJ, Keane and Nettle JJ); DPP v Clunie [2016] VSCA 216 [54], [58] (Maxwell ACJ, Osborn and Santamaria JJA); Bao v The Queen [2016] NSWCCA 16 [73] (Hoeben CJ at CL, Bathurst CJ agreeing at [1], RS Hulme AJ agreeing at [78]).
[37]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Redlich and Harper JJA); R v Abbott (2007) 170 A Crim R 306, 309 [13] (Maxwell P, Eames JA and Habersberger AJA agreeing at 312 [22] and [23]); [2007] VSCA 32.
It is trite that the manifest excess ground does not admit of lengthy analysis. But we note that the maximum sentence for blackmail is 15 years and that the objective gravity of the offending in this case was very high. While lasting only a short period, the offending was intensive and persistent. While it was unsophisticated, it was opportunistic and callous. By way of mitigation, the applicant pleaded guilty and expressed remorse. She had no prior convictions at 24 years of age and is relatively youthful. There is, however, no evidence of any condition going to reduce her moral culpability.
These features lead us to conclude that the sentence was not outside the permissible range. To the extent that current sentencing practice in this area can be discerned, that impression is confirmed by reference to recent cases in which this Court has considered sentences for blackmail. In Aitkin, this Court resentenced an offender to three years and six months’ imprisonment. The blackmail there involved threats to publish revealing photographs, accompanied by threats to kill, if money was not paid. The primary victim was in a relationship of trust with the offender. The Court characterised the mitigating features of the case as significant.[38] In Director of Public Prosecutions v Oksuz,[39] the Court described a sentence of two years and six months’ imprisonment for threatening to have the victim’s son stabbed in prison if a claimed debt was not repaid as ‘extremely lenient’.[40] There was very little to mitigate the sentence, apart from a late plea of guilty. The Court referred to R v Vo,[41] in which a sentence of three years’ imprisonment (at a time when the maximum was twelve and a half years) was said to be unexceptionable. In Vo, the offender demanded money or free goods from a shop in exchange for ‘protection’. The offender pleaded not guilty and, while youthful at 21 years of age, had a criminal
record which called for specific deterrence.[42]
[38][2017] VSCA 103, [104] (Weinberg and Kyrou JJA).
[39](2015) 47 VR 731.
[40]Ibid 735 [11] (Redlich JA), 758 [116] (Kyrou JA).
[41](Victorian Court of Appeal, Phillips CJ, Callaway and Batt JA, 14 May 1998).
[42]In Devereaux v The Queen [2019] VSCA 6, a judge of this Court described a base sentence of 3 years and 3 months’ imprisonment for a ‘mid-level example’ of blackmail as ‘relatively modest’: [15], [32] (Kyrou JA). The applicant unsuccessfully sought leave to appeal against his total sentence on the ground of manifest excess, although this was directed to the component of the sentence relating to the offence of making a threat to kill. The base sentence for blackmail was not challenged. See also DPP v Devereaux [2019] VCC 1128 (Judge Chettle).
A sentence of 12 months’ imprisonment was imposed by this Court in Loftus v The Queen.[43] The offender in that case demanded money for some master keys he had stolen, and threatened to drop them in the water. A sum of $650 was paid. Apart from that, there was ‘scant’ material as to the effect on the victim.[44] That serves to distinguish the case. But it must also be said that the difference in the various forms of blackmail which all these cases reveal shows that resort to current sentencing practices in this instance is fraught with difficulty.
[43][2019] VSCA 24.
[44]Ibid [88] (Whelan AP, Niall JA).
As we have said, the cases to which we have referred tend to confirm our conclusion that the sentence in this case, while stern, was within the available range.
Conclusion
For the above reasons, the proposed appeal would not have sufficient prospects of success to warrant granting leave to appeal. As it depended on the merits of the proposed appeal, the applicant’s application for an extension of time must be dismissed.
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