R v KB
[2017] ACTSC 344
•16 August 2017, 1 November 2017
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 15.” The offender threatened to publicly release details of the Grindr exchanges between the victim and the offender's brother, which included images.
As this conversation was occurring, the offender's brother left the offender’s car and approached the offender and the victim, holding a mobile telephone. He recorded the conversation between the offender and the victim.
The offender said to the victim, “we can sort this out; you don't have to ruin your life.” He continued to threaten to publish on social media the conversations and images that had been exchanged. He said that he would have the victim arrested and would ruin his life.
After protesting that he had done nothing wrong, the victim attempted to enter his vehicle to leave. The offender leaned against the front driver side door and prevented the victim from doing so. However, the victim managed to force open the front driver door and enter the vehicle. As the victim drove off, the offender and his brother called out “we are going to ruin your life”.
When he was exiting the car park, the victim stopped his vehicle. The offender and his brother approached. The victim used his mobile telephone to photograph them. The offenders repeated that, “we can sort it out; you don't have to ruin your life.” When the victim asked what they wanted, the offenders indicated that they wanted money. The victim drove away.
The victim continued to receive messages from the Grindr account in the name of the offender's brother. One of the messages said, “[w]ould you ruin your life just for $150, is it worth it?”
The victim blocked the Grindr and Facebook accounts in the name of the offender’s brother.
In February 2017, police executed search warrants at the residence of the offender and his brother. Police searched the offender’s vehicle, where they located a printed piece of paper containing explicit Facebook message exchanges between the Facebook account operated in the name of the offender's brother an unidentified male.
The offender informed police that, because their father had been abused as a child, his brother hated paedophiles and had extorted money from a person on one occasion. The offender had believed that his brother would meet with paedophiles regardless of whether he was accompanied; consequently, the offender had accompanied his brother in case it was necessary to protect him. The offender also stated that he had threatened victims with prison “so they'll throw us something... a bone, cash, phone, whatever.” The offender expressed remorse and said that he felt saddened about the impact of his actions on the gay community.
Earlier, on 8 January 2017 (the day after the offence), the offender sent a message saying: “I just haven’t ever hunted pedos before and its fucking scary... I had three attempts yesterday and didn’t make a buck haha.” However, within two weeks of the incident, the offender appeared to gain some insight into his offending conduct. On 20 January 2017, he messaged his father saying “there’s no way I’m doing another one. I know it was a mistake and I won’t make it again so there is no risk.”
Victim impact
The offence had a serious psychological impact on the victim. His pre-existing anxiety was significantly exacerbated by the offence to the extent that he says that he cannot work because of it. He has become a social recluse. Previously, he had used dating apps to meet people (rather than taking the more “risky” option of trying to meet people at nightclubs), but he no longer feels safe using dating apps. Consequently, his opportunities to meet a suitable companion have been dramatically reduced.
The victim feels targeted and alienated because of his sexual preference. He is also conscious of the widespread psychological impact that the offence, which he correctly characterised as a “hate crime”, has and will have on the LGBTI community.
The Court acknowledges the serious impact on the victim and the wider impact on the LGBTI community of this vigilante offence. It is understandable that the offence has greatly impacted on the victim’s sense of personal safety and it is likely that it has affected the sense of personal safety of many members of the LGBTI community
Objective seriousness
There is no evidence that the offender was fully conversant with his brother’s activities on Grindr and Facebook or that the offender knew of his brother's involvement with the victim for any extended period of time. However, it is clear that, at the time he drove his brother to the Mawson playing fields, the offender knew of the intended blackmail and was prepared to engage in it himself. To that extent, the offence was planned on the part of the offender. Further, the offender was the first person out of the car and the first person to approach the victim, introducing himself as a “paedophile hunter”.
The nature of the menace was extremely serious; it was to “ruin” the victim's life by exposing him as a paedophile (one of the most heinous accusations that can be made) on social media (where the allegation would remain forever in cyberspace). As he pointed out to the offenders, the victim had done nothing wrong. He had been informed via the Grindr profile that the offender’s brother was 18 years of age.
The potential for the offence to have a dramatic psychological impact on the victim was obvious; indeed, the offender intended that it would do so. His motivation to engage in the offence was as much to terrify the victim as it was to obtain cash.
The offence was committed in company, making it more terrifying for the victim. At one stage, the offender attempted to prevent the victim from leaving by blocking his driver side car door.
All of the above factors make the offence objectively serious.
The offender's motivation for the offence appears to have been threefold: a desire to protect his brother, a desire for financial gain, and a desire to obtain retribution on behalf of his father. The offence also gave the offender “an adrenaline rush” and provided a “distraction” from grief that he was experiencing because of his personal circumstances.
Co-offender
On 14 March 2017, in the Children's Court, the offender's brother pleaded guilty to two charges of blackmail and two drug charges.
In relation to the blackmail charge that concerned the same conduct as that with which the offender was charged, the offender's brother was sentenced to 10 months’ imprisonment. He was to serve six months in custody and the remaining four months was to be suspended upon him entering into a good behaviour order for 15 months.
On a second blackmail charge, he was sentenced to 15 months’ imprisonment to commence after the six months served in custody and that sentence was wholly suspended.
It is important to note that the co-offender was sentenced under a different sentencing regime; that which applies to a young person. The offender was an adult at the time of the offending conduct, albeit a very young adult.
Subjective circumstances
At the time of the offence, the offender was 18 years old.
The offender has had no other contact with the criminal justice system.
The offender has a younger brother (the co-offender) and a sister. He is particularly close to the co-offender.
The offender’s childhood was positive and happy, until his parents' marriage started to disintegrate when the offender was in his early to mid-teens.
About a month after his parents separated in early 2015, the offender discovered that his father had been involved in the Royal Commission into Institutional Responses to Child Sexual Abuse as a result of abuse that he had experienced in church-based care.
The offender's mid-teen years (from 2015) were very stressful because of the parental breakup and also because he witnessed his father having an emotional breakdown as a consequence of revealing his childhood trauma. Referees referred to the unsettling impact on the offender of learning that his father had suffered child abuse.
The offender's father now resides interstate and the offender continues to live in Canberra with his mother and siblings. The offender has a good relationship with his father.
The offender completed Year 12 in 2016. Currently, he is in receipt of Centrelink payments. He wishes to attend university once court proceedings are finalised to study psychology and/or economics.
The offender has been heavily involved in sport, excelling in both cricket and swimming. He has played cricket for a number of clubs. Between the ages of 12 and 17, a period of about five years, he assisted his father to perform voluntary work with disadvantaged youth in India. The project involved incentivising disadvantaged children to achieve an 85 per cent attendance rate at school by offering the reward of access to a cricket academy where the offender assisted his father to coach cricket to the children. The local cricket community is now providing a support network to the offender and will assist to “get him back on track” as a “good community member”.
The offender has no significant mental health or substance abuse problems, although he experiences symptoms of depression and anxiety.
The offender has been subject to strict bail conditions, including that he not access the internet and social media. As a result, he has felt socially isolated. He was also unable to communicate with his brother until July 2017 because his brother was in custody.
The offender displayed some victim empathy to the author of the pre-sentence report. He acknowledged that vigilantism was wrong and that his offence would have had a damaging impact on the LGBTI community.
The offender also authored a letter to the victim, accepting full responsibility for his role and offering to participate in restorative justice in the event that the victim was willing to do so. Understandably, the victim was not willing to participate. The offender apologised to the victim and to the gay community and assured the victim that he would not engage in any such activity in the future. Although this letter was authored rather late, it is consistent with the regret and remorse expressed by the offender from an early stage (within two weeks of the offence).
Character references attested to the fact that the offender is a courteous and engaging individual, who is usually kind-hearted and who usually behaves in a responsible manner.
The offender was assessed by the author of the pre-sentence report as having a medium to low risk of general reoffending. It was considered that he would benefit from interventions to address his attitude towards the offending. The clinical psychologist who reported said that, compared to an age-matched offender sample, the offender scored in a very low range on a risk of recidivism measure. Given the offender’s family and social support, and his increasing maturity and insight, I consider it unlikely that the offender will re-offend, particularly if rehabilitation is encouraged.
Sentencing considerations
In sentencing the offender, I have regard to the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
The offender’s subjective circumstances are strong and favour a sentence that promotes rehabilitation. For young adult offenders, rehabilitation is always a very important sentencing purpose. It is significant that the offender was barely an adult at the time of the offence.
The issue is the extent to which considerations of rehabilitation are prioritised over other important sentencing considerations.
Any form of vigilantism tends to undermine the rule of law and divide what is otherwise a tolerant community in the Australian Capital Territory. It is abhorrent to the public. The sentencing purposes of public protection and general deterrence are very important and must be strongly reflected in the sentence that is imposed.
In addition to the impact on the public generally, there must be recognition of the impact on the victim and the LGBTI community.
I am also required to take into account the matters referred to in s 33 of the Sentencing Act insofar as they are known and relevant. I have referred to those matters above.
Sentence
16 August 2017
The only appropriate sentence is one of imprisonment. The defence made that concession.
I consider that the appropriate starting point for the sentence is two years and six months’ imprisonment, less a discount of 20 per cent plus, arriving at a sentence of one year and 11 months’ imprisonment.
To acknowledge the period that the offender spent in full-time custody, I will deduct one month, arriving at a sentence of one year and 10 months’ imprisonment.
I convict the offender and sentence him to one year and 10 months’ imprisonment.
The difficult question is how that sentence should be served. I consider that some period of full-time imprisonment is necessary to reinforce the lessons that the offender has learnt and to remind him what punishment may involve. However, the offender has already spent a period in full-time custody. For that reason, I will consider how the sentence can be served by other means. I am not prepared to allow further leniency beyond that associated with an intensive correction order (ICO) with a lengthy community service condition.
In order to enable an ICO assessment to occur, I stay the sentence for approximately two and a half months. During that period, bail is continued.
1 November 2017
The offender received a positive ICO assessment that confirmed many of the matters referred to above. He was assessed as suitable for a community service condition. The assessment identified matters that would be targeted under an ICO and which would enhance the prospects of rehabilitation.
I order that the sentence of one year and 10 months’ imprisonment be served by intensive correction in the community.
The ICO is to include the additional conditions that the offender report to Community Corrections by 4.00 pm today, and that the offender perform 249 hours of community service within 12 months.
| I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Chief Justice Murrell. Associate: Date: 16 November 2017 |
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