R v KB - [2017] ACTSC 344

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v KB
Citation:	[2017] ACTSC 344
Hearing Dates:	16 August 2017, 1 November 2017
DecisionDate:	16 August 2017, 1 November 2017
Before:	Murrell CJ
Decision:	Sentenced to one year and 10 months’ imprisonment to be served by intensive correction order with 249 hours of community service.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offences – blackmail – plea of guilty – social media – vigilantism – serious impact on victim and LGBTI community – strong subjective factors – rehabilitation – general deterrence important – intensive correction order with community service
Legislation Cited:	Criminal Code 2002 (ACT) s 342(a) Crimes (Sentencing) Act 2005 (ACT) ss 7, 33
Parties:	The Queen (Crown) KB (Offender)
Representation:	Counsel Ms S Gul (Crown) Mr J Stewart (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Offender)
File Number:	SCC 154 of 2017

MURRELL CJ:

The offender is to be sentenced for the offence that on 7 January 2017 he made an unwarranted demand with menace in that he claimed $150 from the victim, with the intention of obtaining a gain, contrary to s 342(a) of the Criminal Code 2002 (ACT).

The maximum penalty for the offence of blackmail is 14 years’ imprisonment and/or a large fine.

The offender entered a plea of guilty on 22 June 2017, the fourth substantive mention in the Magistrates Court. The plea was entered after a brief of evidence had been prepared and the prosecution and defence had discussed the contents of the statement of facts.

The offender should receive a discount in the range of 20 to 25 per cent to acknowledge the utilitarian value of the plea, which was early, although not made at the earliest opportunity. The plea spared the victim from the significant trauma that would have been associated with giving evidence.

The offender spent 23 days in custody, from 16 February 2017 to 10 March 2017. The time spent in custody was a very hard lesson for the offender; he witnessed physical violence and he felt that there was a constant threat of assault.

Facts

In early January 2017, the offender's younger brother (then 16 years old) created a profile on “Grindr”, a social networking app used by gay men to arrange romantic and/or sexual liaisons. The offender's brother stated that he was 18 years old or older, as the app required users to be adults.

On 7 January 2017, the offender's brother “met” the victim through the profile. They “befriended” each other on Facebook. The offender's brother said that he wanted to meet the victim in person and they arranged to meet at the playing fields at Mawson.

The offender drove his brother to the agreed meeting place. The offender exited the car, approached the front driver's side of the victim's car and said “Hi, I'm the paedophile hunter... you have come here to see my little brother, he is only…

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 KB

Details

AGLC: R v KB [2017] ACTSC 344
Case: [2017] ACTSC 344
Decision Date: 16 August 2017, 1 November 2017

CaseChat Overview and Summary

The appellant, KB, was convicted of blackmail under section 418 of the Criminal Code (Cth) and faced the Federal Circuit Court. The conviction stemmed from KB's use of social media to publish private and sensitive information about an individual with the intent to coerce a payment. This act had a profound impact on the victim and the LGBTI community, leading to significant distress and concern. KB pleaded guilty to the offence.

The court was tasked with determining an appropriate sentence, considering the particular circumstances and impact of the offence, as well as the principles of rehabilitation and general deterrence. The court recognised the serious consequences of the blackmail, including the significant harm caused to the victim and the broader community. It also considered KB's guilty plea, the absence of prior criminal history, and the potential for rehabilitation. In determining the sentence, the court emphasised the importance of both punishment and deterrence.

After weighing the aggravating and mitigating factors, the court sentenced KB to one year and ten months' imprisonment. However, recognising KB's potential for rehabilitation and the absence of a need for incarceration, the court ordered that the sentence be served through an intensive correction order, which includes 249 hours of community service. This approach balances the need for punishment and deterrence with the opportunity for KB to make amends and reintegrate into society.

Orders

Orders of the court

Sentenced to one year and 10 months’ imprisonment to be served by intensive correction order with 249 hours of community service.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.