Qarau v The Queen
[2013] VSCA 141
•5 June 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0292
| INOKE QARAU |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES | ASHLEY and COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 5 June 2013 |
| DATE OF JUDGMENT | 5 June 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 141 |
| JUDGMENT APPEALED FROM | R v Qarau [2012] VCC 1798 (Judge Milane) |
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CRIMINAL LAW — Sentence — Blackmail — Whether sentence manifestly excessive — Appeal allowed — No point of principle.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | The applicant appeared in person | |
| For the Respondent | Ms F Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
The applicant, Inoke Qarau, pleaded guilty in the County Court to a charge of blackmail, the offending comprising three incidents which took place between 20 January and 24 January 2011. On 26 November 2012, he was sentenced to three years’ imprisonment, 12 months of which was suspended for an operational period of 12 months. Pursuant to s 86 of the Confiscation Act 1997, a compensation order was also made against the applicant in the amount of $1,150.00.
The applicant seeks leave to appeal against sentence on the ground that the sentence of three years’ imprisonment and ‘non-parole period of two years’ imposed upon him are manifestly excessive. Presumably, the reference to a ‘non-parole’ period refers to the period of the sentence which must be served before the period of suspension of sentence begins.
Circumstances
The complainant was at relevant times a hairdresser by occupation, conducting a business in Richmond. In September 2009, he engaged a contractor, Con Apostolou to carry out building works to his home in Thornbury at an agreed price of about $40,000. The builder’s son assisted his father with the work. The complainant refused to pay the full amount, a dispute having arisen about the quality of the work performed by the builder. The complainant paid all but about $4,000 of the agreed amount. The contract was terminated in December 2009.
The parties made unsuccessful attempts to resolve the matter. The complainant sought police assistance to have a set of house keys and a garage remote control device returned.
On 9 March 2010, the builder delivered to the complainant an invoice for $10,839, payable within seven days. He also warned the complainant that he would get his money no matter what it took.
The complainant then engaged a solicitor, who wrote a letter to the builder and his son putting the claim into contest. That letter was sent in April 2010. Nothing relevant then happened until January 2011.
At about midday on 20 January 2011, the applicant was driven to the complainant’s business by the builder. The applicant told the complainant that he was there to collect $10,800 on behalf of the builder, and that payment had to be made that day in cash. The complainant replied that he was unable to access such an amount. The applicant responded by making threats directed to the complainant’s family and in-laws. He said, among other things, that if the complainant cared about his family it would be in his best interest to settle the debt; and that ‘the boys’ would not be happy if he returned empty-handed.
Following discussion, the applicant agreed to accept $4,000. The complainant said he did not have that amount to hand. The applicant then demanded some money that day. In all, he was given $150 in cash. He said that he would return the next day to collect the balance of $3,850.
The complainant’s wife arrived at the salon with their two sons towards the end of the incident. She saw and heard some aspects of what transpired.
In the late morning of 21 January, the applicant was driven by the builder to the complainant’s business premises. The complainant told the applicant that he only had $1,000. This annoyed the applicant, who responded that it was not acceptable and that he wanted the money paid that day. The complainant then said that the balance of $2,850 (that is, of a total of $4,000) would be paid on the following Monday. But the applicant demanded that $5,000 be paid on Monday. There was discussion about the reason why the amount to be paid had increased, but in the end the complainant gave the applicant $1,000 and agreed to pay the balance on the Monday. The applicant made threats before leaving, including that he was not giving the complainant another chance, that on Monday he would come with someone else, and that a lot of people were involved now. He also told the complainant that he was the only one who was a peacemaker, and that he did not want the ‘other boys’ to get involved because they were ‘very bad boys’.
What was said that day was recorded, because the complainant had been fitted by the police with an audio recording device. Police also took some video footage of the meeting.
The third incident occurred on 24 January. The complainant was again fitted with a concealed audio recording device. Just after midday, the applicant arrived at the complainant’s business premises. He gestured for the complainant to follow him outside. They walked some distance. The complainant told the applicant that he only had $500, and he handed the applicant that amount. The applicant became annoyed, and made a number of threats to the complainant. They included a threat to the effect that he was now going to come to the complainant’s house with other men to collect the money. It appears that he was demanding payment of a further $3,000.
Soon after the meeting ended, the applicant was arrested. The money paid over on 24 January was retrieved. Thus, the only amounts which the applicant received and retained totalled $1,150, which was the amount of the compensation order.
In a record of interview, the applicant said he was asked by the builder to collect $10,800 from the complainant. The amount was to be split evenly between them. He denied making any threats against the complainant.
The Plea
In time, the applicant pleaded guilty. The submissions advanced on the plea were to this effect: the applicant had been born in Fiji in 1958 into a disadvantaged family, and had been brought up in a milieu where schooling and employment were not the norm. But he had excelled at boxing, and had escaped the life to which he would otherwise have been condemned. He had married, and had fathered a number of children. He and his family had migrated to Australia in 1986. He had worked as a labourer, in Sydney and then in Melbourne. He had a problem with alcohol abuse, and this had contributed to earlier offending - not of this kind - and to a period of separation from his wife. In 2008, he had suffered a serious injury to his left shoulder. It had required surgery on three occasions, was still requiring treatment and medication, and had prevented him working. At a low ebb in his life, he had been taken advantage of by the builder, who had used him as a debt collector. Now, he had stopped drinking alcohol, was re-united with his wife of 30 years, and was remorseful for what he had done. The applicant enjoyed sharing his passion for sport and boxing with his grandchildren. Training them to be future boxing champions, representing Australia, was his passion.
Sentencing Remarks
In assessing the seriousness of the applicant’s offending, the sentencing judge took into account his persistent and repeated demands for money from the complainant with threats of violence towards the complainant and his immediate family.
With respect to the first incident of blackmail the sentencing judge made the following observations:
On the first occasion you attended the salon, witnesses noted that you were dressed in a dark suit and wearing dark sunglasses. As was no doubt intended, with a view to obtaining a significant financial gain, your presentation and the threats made were designed to and did cause significant fear in someone who was a complete stranger to you. In effect, you sought to manipulate this man through physical and verbal intimidation. This event was never, as suggested by your counsel, a debt collection gone wrong because, at the behest of a third party and motivated to obtain a large financial reward, you adopted the role of a standover man.
These threats were made, as the judge noted, by a person accurately described as ‘a giant of a man’.
The judge concluded that the complainant and his family had been traumatised by these incidents, and also that there had been a likely adverse impact on an employee who had been present on at least two occasions when the offending took place.
The judge recounted the applicant’s personal circumstances, as they had been described, but without saying much as to what flowed from them – other than that the applicant had fallen from ‘the high pedestal upon which [he] was placed’ in his home country. Her Honour took into account, in mitigation of sentence, the applicant’s guilty plea. In addition to its value otherwise, it indicated the presence of some, but incomplete, remorse. Her Honour noted favourable references which had been tendered on the applicant’s behalf, but nonetheless expressed reservations about the risk of the applicant re-offending.
The judge had reference to a few sentences imposed for blackmail in recent years. She rightly observed, however, that the sentence must ‘properly reflect the circumstances of this rolled up offence and [the applicant’s] personal circumstances.’
Submissions in this court
The applicant submitted, in a written case, that –
(1) The judge made a particular point that one incident of blackmail took place in front of children, and attached significant weight to the use of verbal threats in their presence.
(2) He was engaged as a ‘standover man’ by the builder, who drove him to the complainant’s business premises on each occasion. He was involved in the ‘debt collection’ for only three days, while the builder had sought to collect the debt from the complainant over a longer period of time, having made threats to the complainant.
(3) The judge erred in law in the exercise of her discretion by imposing a sentence which was manifestly excessive compared with his co-offender – that is, the builder. The latter remained at liberty and, although he was involved in the crime on each occasion, had not been charged. The sentencing judge therefore breached the parity principle.
In its written case the respondent submitted that the sentences imposed on the applicant reflected a sound exercise of judicial discretion. Although the applicant fell to be sentenced on only one charge of blackmail, he actually made demands for payment, accompanied by threats, on three occasions. He was motivated by money. Having regard to these considerations, and to the importance of general and specific deterrence in sentencing for this kind of offending, the sentence was clearly within range. Further, the parity principle only invites a comparison of sentences imposed on co-offenders. It does not invite consideration of the position of those who are not charged.
Resolution
In my opinion, for the following reasons, the application for leave to appeal should be granted, the appeal allowed, and the (now) appellant re-sentenced. I should begin, however, by putting two submissions advanced for the appellant to one side.
First, contrary to the appellant’s submission, the judge made no particular observation in her sentencing remarks which implied that the complainant’s children overheard, and were affected by, threats made by the appellant in their presence. No specific error has been demonstrated.
Second, and assuming in the appellant’s favour that the enunciated ground enlivened the issue, the Crown’s submission that the parity principle in this case was irrelevant to the sentencing of the appellant was correct. In Thorp v The Queen[1] it was held that:
It is plain from these authorities that the parity principle applies to differences between sentences which are imposed. It has no application to the situation which may occur where not all the offenders involved in a particular crime are charged with offences arising there from. The reason for this is self-evident. There could be many reasons for an administrative decision being taken not to prosecute a particular participant. For example, it might be that one of the persons so involved might have left the country and be beyond the reach of the police, it might be that such a person might have co-operated with the prosecution to such an extent that an administrative decision is taken not to charge him, or it might be that the person is not capable of being charged through reasons of ill health. It would be contrary to the due administration of justice if, in such circumstances, others who are convicted of offences stemming from the same or related criminal conduct were to receive lesser sentences simply because there was an omission to bring to justice those not charged.[2]
[1]Supreme Court of Western Australia Court of Criminal Appeal (Unreported 5 November 1997).
[2]Ibid, p 9 (Ipp, Steytler and Parker JJ).
Thus, the application, and if granted, the appeal resolves itself into consideration of the traditional question whether the sentence imposed was outside the range available in the sound exercise of sentencing discretion.
It was submitted at the plea by counsel for the Crown that the appropriate maximum sentence was in the range of three to four years with a minimum of two to two and a half years. Counsel provided the sentencing judge with summaries of recent cases which involved the offence of blackmail. They were extracted from the Victorian Sentencing Manual. Counsel for the appellant submitted that a sentence of between one and a half and two years’ imprisonment would be appropriate, with either the whole or the larger part of the sentence being suspended. Neither submission, of course, bound the judge.
The scant statistical material provided to the judge was not of much assistance in the sentencing process. So much was really common ground below and I agree that this was the situation. The most that can be said is that, in factually diverse situations, a sentence such as the judge imposed has previously been imposed. But that says nothing about principle.
Here, there was blackmailing for intended financial gain. The amount of money sought to be extracted, though shifting, was not large.[3] Even so, the appellant’s conduct, particularly in light of his imposing physical presence, must have been frightening.
[3]But remembering always, that the gist of the offence is the making of an unwarranted demand with menaces, not the amount demanded.
On the other hand, the appellant was a man over 50 years of age who had not offended in such a way before.[4] He had never been sentenced to imprisonment before. His offending did not involve physical violence, or threats of the extreme kind sometimes encountered in cases of blackmail. It occurred at a low point in his life, when he had suffered significant injury, was out of work, and was separated from his wife. By the time of the plea, he was re-united with his wife, and his accident compensation claim had been resolved. He had favourable references. He did plead guilty, and that was evidence of some remorse. He had positive plans for assisting his grandchildren in their sporting endeavours.
[4]In Victoria, he had appeared in the Magistrates’ Court on three occasions: in March 1999, July 2007 and November 2011. On each of the first two occasions, he was fined. On the third occasion, a community based order, without conviction, was imposed. Some of the offences seem likely to have arisen from the admixture of family discord and alcohol consumption, and others to have been associated with the abuse of alcohol.
Blackmail is a crime which must be denounced. General deterrence is an important sentencing consideration. The offence is one the commission of which may be difficult to detect, especially where, as Callaway JA said in R v Vo[5] -
the predator preys, or attempts to prey, on the fear that his or her conduct inspires.
[5]Unreported, Court of Appeal, 14 May 1998.
His Honour also implicitly removed the observation of the sentencing judge in that case that -
… it is essential that those who have the courage to report the offence or to give evidence for the Crown know that their efforts will not be wasted and that the offenders will be appropriately punished.
The crime is thus one which calls for real, not merely nominal, punishment. Having regard to the general considerations which I have mentioned, and of course
to the particular circumstance of this offender and his offending, I do not consider that the sentence of three years’ imprisonment was manifestly excessive.
On the other hand, the judge was persuaded that the appellant’s circumstances made it appropriate that there be part suspension of the sentence imposed. I entirely agree. But I respectfully consider that the period of immediate imprisonment which her Honour required the appellant to serve was manifestly excessive. Re-weighing the circumstances of the offending and the offender, substantial leniency was required in fixing the period of immediate imprisonment which must be served. In that connection, I consider that the sentence imposed below failed to sufficiently address the competing considerations. I would confirm the sentence of three years’ imprisonment, but would suspend two years of that sentence for an operative period of three years.
COGHLAN JA:
I agree and I would add only this.
Ms Dalziel, who appeared for the respondent on this application, submitted in support of the applicant, without conceding that the sentence was manifestly excessive, that the structure of the sentence with two-thirds of the sentence to be immediately served gave rise to a severe sentence, in all the circumstances. That was a proper and helpful concession.
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