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 it does fall into the overall picture given by the victim as to the effects of the offending.
The offender was born in 1997. He is still a young man but this has not stopped him from accumulating, in the ACT, New South Wales and Queensland, a substantial criminal record. He is currently serving a prison sentence for a driving charge and a weapons offence. He has a parole hearing on 23 June 2022. His behaviour while in custody taken together with outstanding warrants in New South Wales suggests that he is unlikely to be at liberty after 23 June.
The offender was born in Wollongong. He was raised mostly by his mother after his parents separated. He left home when he was 15 years of age and has not been in stable accommodation since then. Nevertheless he maintains a good relationship with his mother and stepfather.
The offender has had a number of relationships which have produced two children. The youngest is in care. He has a current partner who visits him often in prison.
The offender left school at the end of Year 9. He had discipline problems at school and was suspended or expelled on a number of occasions. He has worked as a labourer from time to time.
The offender has a real problem with alcohol and drugs. He has done nothing to address his addictions. He told the authors of the pre-sentence report that he had been diagnosed with ADHD, a drug induced psychosis and depression. He has not however complied with suggested mental health medication. He seems to have abandoned contact with mental health services.
I was informed that he has not engaged with certain counselling services because of the frequent turning over of counsellors. I am sure it is difficult to have to repeat a history but one would have thought that any person recognising an addiction problem would do their upmost to combat the addiction.
According to the pre-sentence report the offender acknowledged his responsibility for his actions but attributed blame to his partner for the attempted blackmail.
The offender is said to have a high risk of general re-offending:
He appears to have limited protective factors in the community and his criminogenic needs are related to his lack of stable accommodation, unemployment, lack of involvement in prosocial activities, poor compliance on community-based orders, substance abuse issues, mental health and poor attitude towards his offences.
In relation to objective seriousness the Crown submitted that the matter fell into a category somewhere below the mid-range. The offender submitted that it was “towards the lowest end of the objective seriousness spectrum”. I was provided with some comparative cases, all of which have points of distinction but nevertheless provide some assistance. The cases were R v Hudson [2019] ACTSC 110 (Hudson), R v KB [2017] ACTSC 344 and R v Kulczycki [2018] ACTSC 9.
Hudson is the closest in factual comparison, because of the target of $5,000 in the blackmail, although a number of the factors leading to the conclusion of a high objective seriousness are missing from the present case.
I was informed that the offender was acquitted of a charge of kidnapping Ms X at a trial which concluded on 17 March 2022. I am therefore obliged to ignore any consequence of the offending upon Ms X. But the consequence upon her mother was significant. It may have been short lived but it involved a mother facing the prospect of a serious assault being occasioned to her daughter, including a threat of specific injury through the use of a hammer.
My view on objective seriousness is that it lies between the submissions of the parties, but a lot closer to the submission of the Crown.
Mr Chen, on behalf of the offender, submitted that the threshold imposed by s 10 of the Crimes (Sentencing) Act 2005 (ACT) had not been crossed. I disagree. Blackmailing, without more, is a serious offence. My assessment of the objective seriousness taken against the background of the offender’s history demands a further period of imprisonment.
It was submitted that the offender’s deprived personal circumstances should be taken into account. I will do so but also remind myself that the offender’s criminal history is such that community protection is also a significant factor.
Mr Chen also urged upon me that the nonparole period which I set should not extend beyond the forthcoming hearing of the parole board. Again, I disagree. To set a very short nonparole period, as would be required to meet this objective, would be to ignore the efficacy of the term of imprisonment that I intend to impose.
The Crown reminded me that a wholly cumulative sentence of imprisonment would offend the principles of totality. A degree of concurrency is inevitable. It was also suggested that it was open to me to backdate the commencement of the period of imprisonment in order to ensure both an appropriate sentence and avoid an overly long sentence.
The Crown accepted that a discount of 25 per cent was appropriate arising from the plea of guilty.
I think a term of imprisonment of 12 months is appropriate, which is reduced to nine months following the reduction of 25 per cent. I also think it appropriate, for the reasons advocated by the Crown, to commence the sentence before today.
The current sentence will expire on 16 November 2022. The nonparole period has already expired (on 16 May 2022) but a new nonparole period applying to all offences will need to be set. I will set a non-parole period to expire on 24 August 2022. The intent is to have a nonparole period which is effectively 55 per cent of the new sentence.
I make the following orders:
(i)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.
(ii)The current nonparole period, noting it has expired, is in any event set aside.
(iii)A new nonparole period is set to expire on 24 August 2022.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: |
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