R v Amery

[1999] QCA 236

99.236

COURT OF APPEAL

DAVIES JA THOMAS JA DEMACK J

CA No 119 of 1999
THE QUEEN
v.

LEANNE MARIEE AMERYApplicant

BRISBANE
..DATE 18/06/99
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DAVIES JA: The applicant pleaded guilty in the District Court on 29 March this year to the offence of extortion between 19 and 23 October last year. She was sentenced to one year's imprisonment and she seeks leave to appeal against that sentence.

The applicant is 33 years of age, having been born on
20 March 1966. She has a minor and quite old criminal
history consisting of one offence of breaking and
entering with intent in 1984 and one of soliciting in
1990. She has not previously been in prison.

At the relevant time she was a prostitute and the offence arose out of her relationship as a prostitute with the complainant. The offence consisted of demanding $2,000 from the complainant, threatening to go to the police and claim that he was a paedophile if he did not pay. She also admitted to threatening to burn his sugar cane.

The complainant is a 60-year-old cane farmer. He met
the applicant in 1996 by answering her advertisement in
the Cairns Post. They maintained a regular relationship
over the next two years or so. The nature of that
relationship is a little unclear and, for the purposes
of this application, I do not think it matters. He said
that over that period he transferred to her account
about $60,000. This she admitted although she asserted,
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or it was asserted on her behalf, that this had taken
place over a longer period than two years.

Then on 20 October 1998 the applicant telephoned the complainant and demanded money which she said she needed for rent or a rental bond. He refused. They met and she again requested the money, then threatening to tell the police he was a paedophile and also to burn his cane. It was at this point that the complainant went to the police and they made arrangements for him to telephone the applicant and then meet her. The phone call and that meeting were observed and tape recorded. She made the demand again for $2,000 which the complainant then paid her. She was then apprehended.

The applicant persisted in her claim that the complainant was a paedophile telling his brother that and also telephoning his solicitor and saying that. She also told the police that.

No oral evidence was given on the sentence hearing.
However the learned sentencing Judge said in respect of
the applicant that he was particularly unimpressed with
her credibility; arriving at this conclusion by
reference to the transcript of the recorded interview
with the police which was of some considerable length
and based apparently on inconsistencies in answers which
she gave in that interview.
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This may have been of some relevance to the correctness
of the sentencing process if, in fact, his Honour
purported to make findings of credibility which affected
the exercise of sentencing discretion, but for reasons
which I will mention I do not think that that was the
case.

There was arguably an area of conflict between the applicant and the complainant as to the circumstances in which the $2,000 was demanded. The applicant said it arose out of the relationship, although what is meant by that is a little unclear. She does not go so far as to say, or at least her counsel does not, that it was in consideration of services performed, but that may be implicit in what she says. She then says, in effect, that he had made a promise to pay $2,000 and that, in effect, she made the threat out of desperation to extract her life from her old one and to start a new one.

But I do not think that in this case the difference is of any significance. It does not matter, I do not think, whether, in fact, the applicant made the demand because she had, on an earlier occasion, extracted from him a promise to pay $2,000 to help her out in the circumstances or whether, in fact, the threat was made irrespective of some such earlier promise.

The offence in this case was, as was accepted, an
extremely serious one. Mr Rutledge, for the respondent,
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described it as "a vile threat against a 60 year old man
suffering from Parkinson's Disease" and that, in my
view, is an accurate description of it.

Notwithstanding the absence of prior convictions meriting imprisonment by the applicant, this offence plainly merited a term of imprisonment and, in my view, when one looks at the comparable cases, although none seem to be directly on point, it merited, in my view, a term of imprisonment of at least the term which the learned sentencing Judge imposed in this case.

It was submitted by Mr Devereaux, for the applicant, that inadequate consideration was given to the guilty plea and her personal circumstances but, in my view, they were adequately taken into account in the sentence which the learned sentencing Judge imposed. For those reasons, I would refuse the application.

THOMAS JA: I agree. This was a very nasty case of extortion. It was effected by means of threats of a kind to which men in the community are these days particularly vulnerable, namely threatened allegations to allege to others including the police that he was a paedophile.

The remark of His Honour in relation to being
unimpressed with the applicant's credibility should be
interpreted, in my view, as an indication that His
Honour found it difficult to accept the wide-ranging and
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inconsistent statements, some of them self-serving,
which appeared at various parts of the applicant's
interview.

So far as the point agitated here, namely that the applicant was relying on a promise of $2,000, it seems to me that to enforce a gratuitous promise by means of a threat to tell police that the promisor was a paedophile unless he paid the money, is a classical example of the offence, and it does not substantially reduce the moral culpability that exists in relation to it.

In my view, a higher sentence would have been justifiable. I agree with what Mr Justice Davies has said and would refuse the application.

DEMACK J: Yes, I agree with the order proposed by Mr Justice Davies and with the reasons that he has given and with the additional reasons from Mr Justice Thomas.

DAVIES JA: The application is refused.

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