R v Hollitt - [2006] SASC 280

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HOLLITT
[2006] SASC 280
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Sulan and The Honourable Justice David)
8 September 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER
Application by the Director of Public Prosecutions for leave to appeal against sentence - respondent found guilty by a jury of two counts of blackmail - respondent threatened to publish sexually explicit photographs of victim on the Internet unless she had sex with him - respondent sentenced to two years and forty five days imprisonment with a non-parole period of six months imprisonment - whether sentence was manifestly inadequate considering the seriousness of the crimes - whether the head sentence and non-parole period establishes or maintains an adequate standard of punishment for this type of offending - application for leave to appeal granted - appeal allowed - respondent sentenced to five years imprisonment with a non-parole period of two years.
Everett v The Queen; Phillips v The Queen (1994) 181 CLR 295; R v Dubois (2004) 88 SASR 304; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; R v Petroff [2005] SASC 449; R v Wilton (1981) 28 SASR 382, considered.

R v HOLLITT
[2006] SASC 280
Court of Criminal Appeal: Duggan, Sulan and David JJ

DUGGAN J: I agree with the orders proposed by Sulan J. I also agree with the reasons prepared by him.
SULAN J: This is an application by the Director of Public Prosecutions (“the DPP”) for leave to appeal against a sentence imposed by the District Court. The respondent, Darren John Hollitt, was found guilty by a jury of two counts of blackmail. The maximum sentence for each of the offences is fifteen years imprisonment.
The facts
The victim, Ms C, met the respondent in an Internet chat room in about October 2003. The respondent used a pseudonym. The couple communicated over the Internet on a number of occasions. The respondent asked to meet Ms C, who agreed. They met at the Henley Beach Yacht Club car park.
They continued to talk to each other online for about two months. Their conversations involved a discussion about sexual matters. The respondent told Ms C that he wanted to take pictures of her having sex.
On 31 December 2003, Ms C agreed to the respondent visiting her at her unit. She disclosed her address and telephone number to him. He attended at her unit and they engaged in consensual acts of sexual intercourse, including fellatio and anal sex. Ms C noticed that the respondent had with him a digital camera, and that he was taking photographs of her during the time that they were engaging in sexual intercourse. She was not happy about it. Nevertheless, she permitted him to take photographs.
Some days later, the respondent communicated with Ms C on the Internet. He indicated that he wanted to engage in sexual relations again and that he enjoyed hurting her. She ignored his communication.
The respondent contacted Ms C online about two weeks later and said that unless she had sex with him two more times he would send photographs of her to his friends. He also contacted her on her mobile phone and threatened to publish photographs of her if she did not have sex with him again. On each occasion she made excuses and said that she could not meet him.
On 27 March 2004, he communicated with her through the chat room and told her that unless she had sex with him he would put photos of her on the Internet. He contacted her the following day on her mobile phone, and said that he would publish the photographs on the Internet unless she provided him with sex. He also threatened to come around to her home and rape her. He said he would come to her home the following Monday, 29 March 2004. Ms C recorded parts of the conversations on her telephone answering machine. During some of the telephone calls, it was evident that the respondent was masturbating.
At that stage, Ms C decided to report the matter to the police. On Monday, 29 March 2004, the respondent did not attend at her home. He telephoned her on Sunday, 4 April 2004. She hung up and continued to ignore further calls from him.
On Friday, 9 April 2004, in the early hours of the morning, she received another phone call from him. He said that if she hung up he would put the photographs on the Internet. He made explicit sexual statements to her. He said that he would come around to see her on 14 April 2004. She told the police about his approach. He did not arrive. He contacted her again on a number of occasions. Eventually she, together with a friend, communicated with the respondent through the Internet, she using a name that would not identify her, and a phone number with which he was not familiar. She asked for his mobile telephone number, which he sent to her via a text message. The police were then able to identify him.
He was arrested and charged with two counts of blackmail. He pleaded not guilty and was convicted by a jury of both counts. In his defence, the respondent had asserted that the conversations had taken place by agreement, and Ms C and the respondent were role-playing in order to sexually excite one another. The sentencing Judge said he was not surprised that the jury had rejected the respondent’s explanations.
The victim impact statement
Ms C, in her victim impact statement, stated that she had suffered depression, sleep disturbance and nightmares, which required medication. She has engaged in self-harming behaviour, and has been hospitalised. The incident has impacted upon her employment and her university studies have been severely affected. She experiences fear of being at home alone.
The respondent’s personal circumstances
The respondent is twenty eight years of age. He completed a certificate course in electronics at TAFE, and had worked with Telstra Corporation in various capacities until 31 May 2006, when he was found guilty of these offences. His employment was then terminated. The sentencing Judge observed that the respondent is intelligent and has the skills to find a job in the future. The respondent had no previous convictions of relevance. The trial Judge received a number of written references and evidence of the respondent’s good character.
Dr Jack White, a psychologist, examined the respondent. He referred to a period when the respondent abused alcohol and drugs, including amphetamines, LSD and cocaine. His abuse of drugs had continued over several years. In February 2006, the respondent commenced a drug rehabilitation program. He had made significant progress in the areas of relapse prevention. He is motivated to change his way of life. The Judge accepted that the respondent had not abused drugs or alcohol since December 2005.
Reverend Graham Pitman testified that the respondent was an active member of the Uniting Church. He had been involved in numerous church activities and was well-respected amongst the church community. Reverend Pitman said that the respondent had developed insight into his conduct, and that he had commenced on the path of rehabilitation. He had obtained counselling and, in Reverend Pitman’s opinion, it is unlikely that the respondent would re‑offend.
The sentence
The sentencing Judge concluded that the offences were serious. The threats to publish explicit photographs of Ms C were not impulsive acts and were part of a course of conduct that spanned over some weeks. The Judge accepted that the respondent had expressed contrition, but observed that the respondent had pleaded not guilty. Ms C was required to give detailed and embarrassing evidence. He concluded that the respondent cannot claim the credit afforded to those who plead guilty and do so out of complete and genuine remorse. The Judge took into account that the respondent had no prior convictions.
As to his use of drugs, the Judge observed:
The material before me suggests that your conduct in the present matter was quite out of character. However, it is significant that in recent years you have abused alcohol and a variety of drugs and spent a lot of time viewing and communicating on the Internet. The drugs that you have used include cocaine, LSD, ecstasy and amphetamines. In my view, it is likely that your sense of propriety and attitude to sexual matters was warped by your use of drugs and your obsession with the Internet.
The respondent was sentenced to two years and forty five days imprisonment, commencing on 11 July 2006. The Judge set a non-parole period of six months imprisonment, commencing on the same day.
The Director’s application
The DPP seeks leave to appeal against the sentence on the grounds that the sentence is manifestly inadequate. The Solicitor-General, who appeared for the DPP, contends that neither the head sentence nor the non-parole period establish or maintain adequate standards of punishment for this type of offending. He submits that the sentence does not adequately reflect the seriousness of the offences, considering the fact that more than one offence was committed, and the manifest need for significant punishment and deterrence.
The Solicitor-General referred the Court to a number of sentences of interstate courts for the offence of blackmail. A number of the authorities to which he referred were cases of demanding money, and can be distinguished from this case. It is difficult to discern from the cases a range of sentences for the offence of blackmail, as the circumstances of each offence vary significantly. The cases are of limited assistance when dealing with the circumstances of this case.
The Solicitor-General submitted that there are at least three elements of the offence of blackmail which affect its gravity. They are the degree of distress caused to the victim, the nature of the plan and the resulting likelihood of it being effected, and the nature of the harm that is intended. He sought to distinguish this case from cases in which money is demanded, on the ground that what was intended in this case was the infliction of painful sexual acts on the victim. It was submitted that an aggravating feature of the conduct was the intention of the respondent to require Ms C to submit to painful sexual activities.
There are a number of aggravating features of this offending. They include the nature of the threat, and the fact that if the victim did not comply with the respondent’s demands it would result in her being publicly humiliated, stigmatised and disgraced. If she did comply, then she would be forced to submit to the sexual advances of the respondent. Further, he obtained Ms C’s trust. Having done so, he was able to threaten her by using the anonymity afforded to him by the Internet.
The Solicitor-General did not identify any error in the Judge’s sentencing remarks, nor any failure by the Judge to have regard to relevant factors. Rather, he submitted that the sentence failed to recognise the seriousness of the offending, resulting in an implicit error of principle that requires interference by this Court.
Counsel for the respondent submitted that the unusual features of the case which would have influenced the sentencing Judge were that, despite the threats to publish the photographs on the Internet, and despite Ms C’s refusal to comply with the respondent’s demands, no such publication occurred. Further, it was submitted that the respondent did not carry out the threats to attend at Ms C’s home. Counsel submitted that it could be inferred that whatever the respondent’s intentions were, he changed his mind shortly after issuing the threats. Counsel referred to the personal circumstances of the respondent and submitted that the sentencing Judge was entitled to adopt a merciful approach and to recognise the prospects of the respondent’s rehabilitation as significant.
Principles applicable to appeals by the DPP
In R v Wilton,[1] King CJ affirmed the principle that the Court will not interfere with a sentencing Judge’s discretion, unless it has miscarried by reason of a mistake of law, or fact, or by reason of the Judge having regard or failing to have regard to a material factor. If there is no identifiable error, then the Court will conclude that the sentencing discretion has miscarried if the sentence, in all the circumstances, is manifestly disproportionate to the crime committed. In R v Nemer,[2] Doyle CJ, in referring to the observations of King CJ, said:
Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion.[3]
[1] (1981) 28 SASR 362.
[2] (2003) 87 SASR 168.
[3] (2003) 87 SASR 168, 172.
In R v Osenkowski,[4] King CJ observed that the proper role for prosecution appeals include the role of the Court of Criminal Appeal to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.[5]
[4] (1982) 30 SASR 212.
[5] (1982) 30 SASR 212, 212-213.
In Everett v The Queen; Phillips v The Queen,[6] the High Court confirmed that in considering a Director’s application for leave to appeal against sentence, leave should only be granted in rare and exceptional cases.
[6] (1994) 181 CLR 295.
Adequacy of sentence
The offending in this case was extremely serious. The respondent committed the offences as part of a course of conduct that spanned some weeks. It was not impulsive conduct. The respondent’s purpose was to obtain his own sexual gratification by threatening Ms C. On repeated occasions, he suggested that he wanted her to submit to sexual conduct during which he would inflict pain and he threatened that, if she did not agree, he would publish explicit photographs of her engaging in sexual intercourse. The respondent maintained his anonymity throughout. This type of offending is difficult to detect and has a significant effect upon the victim.
The sentence for this type of conduct must reflect the seriousness of it. There must be a significant element of general deterrence in any sentence for conduct of this nature. The Internet is used by many persons in the community to communicate with each other and to make new acquaintances. It is used to enable strangers to meet and exchange views and develop relationships. If it is misused, so that personal and private information given in trust is then abused by threats of revealing private matters, in order to obtain sexual favours, then the community is entitled to expect that such conduct will be regarded by the Court as a serious breach of the law.
The sentencing Judge failed to have sufficient regard to the deterrent aspect and the protection of the public in arriving at the sentence. As to the non-parole period, it must reflect the requirement of punishment and general and personal deterrence, and should reflect the gravity of the crimes: see R v Dubois.[7]
[7] (2004) 88 SASR 304.
The sentence imposed was manifestly inadequate. I have had regard to the principle that in cases of an appeal by the DPP, the sentence to be imposed must have regard to the principles of double jeopardy. There are instances where the court has identified error but will not interfere with the sentence, as good reason has been demonstrated for the court not to intervene: see R v Petroff.[8]No such reason has been demonstrated in this case.
[8] [2005] SASC 449.
I would grant the DPP leave to appeal. The appeal should be allowed. The sentence imposed should be set aside.
I would sentence the respondent to imprisonment for five years, with a non‑parole period of two years, the sentence and non-parole period to commence on 11 July 2006.
DAVID J: I agree with the reasons given by Sulan J and the orders he proposes.