R v Carrasco (No 3) - [2022] ACTSC 118

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Carrasco (No 3)
Citation:	[2022] ACTSC 118
Hearing Date:	25 May 2022
DecisionDate:	25 May 2022
Before:	Elkaim J
Decision:	1. For the offence of blackmail, the offender is sentenced to imprisonment for a period of nine months to commence on 25 March 2022 and end on 24 December 2022. 2. The current nonparole period, noting it has expired, is in any event set aside. 3. A new nonparole period is set to expire on 24 August 2022.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – blackmail with intent to obtain a gain – where offender has deprived personal circumstances – where community protection is a significant factor
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) s 10 Criminal Code 2002 (ACT) s 342
Cases Cited:	R v Hudson [2019] ACTSC 110 R v KB [2017] ACTSC 344 R v Kulczycki [2018] ACTSC 9
Parties:	The Queen ( Crown) Samuel Carrasco ( Offender)
Representation:	Counsel A Williamson ( Crown) E Chen ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender)
File Numbers:	SCC 222 of 2021

Elkaim J:

On 21 September 2021, the offender pleaded guilty to the offence of blackmail with intent to obtain a gain, contrary to s 342(a) of the Criminal Code 2002 (ACT). The maximum penalty is $224,000, 14 years’ imprisonment or both.

There is an agreed statement of facts in Exhibit A. In summary, on 16 May 2021, the offender and Ms X were sitting in Ms X’s motorcar. They had previously been in a relationship and Ms X had told her mother that she was going to see the offender in regard to some possessions.

The offender sent text messages to Ms X’s mother on Ms X’s telephone stating that she was in trouble, that she had been apprehended by “serious people” and she would not be freed until an amount of money was deposited into a bank account. The inference is that the amount was $5,000. Threats of harm to Ms X were made. Further text messages were sent in which Ms X pleaded for help from her mother.

Ms X’s mother contacted the police who went in search, through a tracking mechanism, to find the mobile phone. In the early hours of the following morning the motor vehicle was located and the offender was arrested.

There is a victim impact statement from Ms X’s mother. She says that she was apprehensive when her daughter went to meet the offender. She then began to receive the text messages mentioned above. She describes her terror while waiting for news from the police about the whereabouts and welfare of her daughter. She still has nightmares and had to give up her job in order to emotionally support her daughter.

The fact that the victim lost a financial benefit is not a matter that I specifically take into account in sentencing but…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Carrasco (No 3)

Details

AGLC: R v Carrasco (No 3) [2022] ACTSC 118
Case: [2022] ACTSC 118
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the case of R v Carrasco (No 3) was heard before Elkaim J on 25 May 2022. The offender, Samuel Carrasco, pleaded guilty to the offence of blackmail with intent to obtain a gain, which carries a maximum penalty of $224,000, 14 years’ imprisonment, or both. The facts of the case were set out in an agreed statement, with the offender texting Ms X's mother from Ms X's phone claiming that she was in trouble and would not be freed until an amount of money was deposited into a bank account, which was inferred to be $5,000. Ms X's mother experienced significant emotional distress as a result of the incident. Carrasco had a criminal history and had problems with substance abuse and mental health. The Crown argued that the objective seriousness of the offence was high, while Carrasco argued it was towards the lowest end of the spectrum.

The court had to determine the appropriate sentence for the offence of blackmail, taking into account the objective seriousness of the offence, Carrasco's deprived personal circumstances, and the need for community protection. The court considered the submissions of both parties and comparative cases, ultimately finding that the objective seriousness of the offence was closer to the Crown's submission. The court found that the threshold for imprisonment had been crossed, and a term of imprisonment was appropriate. Carrasco's deprived personal circumstances and the need for community protection were taken into account, but the court found that a degree of concurrency was necessary to avoid an overly long sentence. The court accepted a 25 per cent discount for the plea of guilty and set a sentence of nine months imprisonment, commencing on 25 March 2022, and a non-parole period of 55 per cent of the new sentence, expiring on 24 August 2022.

Orders