R v Kulczycki

[2018] ACTSC 9

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Kulczycki

Citation:

[2018] ACTSC 9

Hearing Date:

30 January 2018

DecisionDate:

30 January 2018

Before:

Elkaim J

Decision:

See [22]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – blackmail – stalking

Legislation Cited:

Criminal Code 2002 (ACT) s 342(a)

Crimes Act 1900 (ACT) ss 35 and 72E
Crimes (Sentencing) Act 2005 (ACT) ss 6, 7 and 10

Parties:

The Queen (Crown)

Robert Joseph Kulczycki (Offender)

Representation:

Counsel

Mr D Swan (Crown)

Ms K Musgrove (Offender)

Solicitors

Office of the ACT Director of Public Prosecutions (Crown)

Paul Edmonds & Associates (Offender)

File Number:

SCC 289 of 2017

ELKAIM J:

1. On 17 October 2017, the offender pleaded guilty to the following offences:

(a)Blackmail (CC 17/4518), contrary to s 342(a) of the Criminal Code 2002 (ACT); and

(b)Stalking (CC 17/4699), contrary to s 35 of the Crimes Act 1900 (ACT).

1. The maximum penalty for blackmail is 14 years’ imprisonment and/or a fine of $210,000. The maximum penalty for stalking is five years’ imprisonment.

1. The offender was born in 1970. He is currently 47 years of age. He was born and raised in the Australian Capital Territory. The offender had a stable childhood, although his parents separated when he was 12 years old. He has two children, currently aged 22 and 17, with whom he has regular contact.

1. The offender completed Year 12. He has been a public servant for some time but this employment has ceased because of the current charges. 

1. The offender started using illegal drugs, including methylamphetamine, when he was 46 years of age. He has had some mental health issues, perhaps arising from these offences. However, he believes that he has recovered and he has ceased taking prescribed medication. He has completed an anger management program while in custody.

1. The offender has a criminal record. The record contains offences committed when he was younger and, more recently, breaches of a Protection Order. His pleas of guilty entitle him to a discount.

1. The offences arise in the context of the offender’s relationship with the complainant. They were in a relationship for approximately two years, ending in September 2016. In the course of the relationship, the couple engaged in consensual sex, which was sometimes recorded on film.  

1. There is no doubt that the offender was distressed by the breakdown of the relationship and I accept Ms Patch’s diagnosis of an adjustment disorder with depressed mood.

1. In October 2016, the offender sent the complainant a number of emails. These are set out in the Statement of Facts, and may be described as offensive and threatening. For example, in an email sent at 6.16 am on 5 October 2016, the offender stated:

…If you want ownership of your porn so I can’t sell it, I want 20k. What’s your reputation and dignity worth? You then own and I can’t do anything…

1. In addition to the demand for money, the offender threatened to disclose other personal matters. On 26 October 2016, the offender left a compact disc at the complainant’s front door, once again threatening the release of explicit material.

1. In December 2016 there was an exchange of text messages in which there were again a number of threats made against the complainant. Later that month, the offender sent the complainant a series of emails in similarly threatening terms. The offender attended the complainant’s residence, after which she sought, and was granted, an Interim Domestic Violence Order on 21 December 2016. The offender was dealt with for contravening the order on three separate occasions.

1. There is a victim impact from the complainant. She says that:

…My life has been turned upside down and I will never be the same person again. He changed that for me. For the first time in my life, I need to take medication for anxiety and depression, which I suffer because of the abuse endured.

1. The complainant goes on to describe the manifestations of her anxiety, her need to see a psychologist and the effects the abuse has had on her daily life.

1. As a general statement, it is important to have regard to the objects of the Crimes (Sentencing) Act 2005 (ACT), as stated in s 6, and the purposes of sentencing, as stated in s 7. I am also particularly mindful of s 10, which tells the court that an offender should not be sentenced to a term of imprisonment unless no other penalty is appropriate.

1. The offender has been in custody for these offences for 158 days. The commencement date for his sentence is, therefore, 25 August 2017. Counsel for the offender submitted that the sentence should be backdated to 14 June 2017, when the offender first appeared before a Magistrate in respect of these charges. However, it is conceded that the offender would have, in any event, been in custody until 25 August 2017 as a result of separate sentences imposed in the Magistrates Court. In my view, s 63(2) of the Crimes (Sentencing) Act 2005 (ACT) cannot be read to suggest that the backdating should go to the June date when the offender was in custody in any event in relation to other charges.

1. Blackmail of the type involved in this case must be regarded as serious. This is not so much because of the amount of money demanded but because it involved a threat to breach the privacy of a relationship and to cause severe embarrassment to the complainant. I have not seen the films concerned but I have no doubt that they contain material which is very personal to the complainant.

1. It was submitted that I should take into account s 72E of the Crimes Act 1900 (ACT), although it was not in force at the time these offences were committed. It was said that this section, if in existence, would have been more appropriate and that I should take into account the lesser maximum penalty of three years’ imprisonment for that offence. I do not think there is particular relevance, having regard to the sentence that I will impose, however I note that a charge of blackmail would still have been open even if s 72E had been available.

1. As stated above, the maximum penalty for blackmail is 14 years’ imprisonment and/or a fine of $210,000. This is a lengthy period, applying only to the most serious of blackmail offences. However, what the length of the term does indicate is the seriousness with which blackmail offences must be treated.

1. I have read the references that are included in Exhibit 1 and I accept that the offender has close family ties and retains an opportunity to be a contributing member of society. I also accept that the prospects of reoffending are low and I note that the offender has taken steps to moderate his emotions and restrict his substance abuse.

1. Nevertheless, in my view, the offender must remain in custody as a reflection of the unacceptable nature of his conduct. There are also elements of deterrence, both specific and general, that are important.

1. I think the two offences are intricately intertwined with each other, so it is appropriate for the sentences to be concurrent. I have also reduced each sentence by three months as a discount for the guilty pleas.

1. I make the following orders:

(a)In respect of the offence of blackmail (CC 2017/4518), the offender is sentenced to 9 months’ imprisonment commencing on 25 August 2017 and ending on 24 May 2018.

(b)In respect of the offence of stalking (CC 2017/4699), the offender is sentenced to 6 months’ imprisonment commencing on 25 August 2017 and ending on 24 February 2018.

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 30 January 2018