R v Pughe

[2019] NSWDC 897

District Court

New South Wales

Medium Neutral Citation:	R v Pughe [2019] NSWDC 897
Hearing dates:	1 November 2019
Date of orders:	07 November 2019
Decision date:	07 November 2019
Jurisdiction:	Criminal
Before:	Bright DCJ
Decision:	Taking into account the Form 1 matters, the offender is sentenced to a total aggregate sentence of 13 years and 4 months to date from 28 December 2018 and expire on 27 April 2032 with a non-parole period of 8 years to date from 28 December 2018 and expire on 27 December 2026.  The earliest date upon which the offender will be eligible for parole is 27 December 2026.
Catchwords:	CRIMINAL – sentence – demand with menaces by accusation that person has committed a serious indictable offence – demand with menaces intending to obtain a gain or cause a loss – importance of general deterrence - parity
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Attorney General’s Reference No 40 of 2002 (John Alexander Collard) [2003] 1 Cr App R (5) 98 Bugmy v The Queen [2013] HCA 37 Cahyadi v R [2007] NSWCCA 1 Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194 R v Barroso [1998] VSC 249 R v Hadjou (1989) 11 Cr App R (S)29 R v Son Vo [1998] VSC 319 R v Turner [2019] NSWDC 618 The Queen v Son Vo [1998] VSC 319
Category:	Sentence
Parties:	Regina (Crown) Robert Pughe (the Offender)
Representation:	Counsel: Mr D Murray (for the Offender)   Solicitors: Ms C Hodgeman (for the Crown)
File Number(s):	2017/00326284
Publication restriction:	Nil

SENTENCE

1. Robert Pughe (31 years) appears for sentence in relation to the following 10 offences:

2. Count 1 - one offence of demand with menaces by accusation that person has committed a serious indictable offence ($20,000)(section 249K(2), Crimes Act). The maximum prescribed penalty for this offence is 14 years imprisonment. There is no prescribed standard non-parole period.

3. When dealing with the offender for that offence the court is taking into account a further 5 offences on a Form 1 of demand with menaces intending to obtain a gain (section 249K(1)(a), Crimes Act) (H65973646 sequence 4 ($25,000), sequence 5 ($30,000), sequence 6 ($64,000), sequence 12 ($37,700) and sequence 15 ($20,000). The maximum prescribed penalty for each of these offences is 10 years imprisonment. There is no prescribed standard non-parole period.

4. Count 2 ($30,000), count 3 ($50,000), count 4 ($18,000), count 5 ($16,240), count 6 ($4,115), count 7 ($243,000), count 8 ($39,900), count 9 ($16,000), count 10 (no funds gained) - 9 offences of demand money with menaces intending to obtain a gain (section 249K(1)(a), Crimes Act). The maximum prescribed penalty for each of these offences is 10 years imprisonment. There is no prescribed standard non-parole period.

5. The offender pleaded guilty on 18 July 2019 at the Gosford District Court. The pleas were entered at arraignment. In circumstances where there were negotiations in relation to the pleas for some weeks before the arraignment, I propose to allow discount on sentence of 20 %.

6. The offender has spent 308 days in custody referrable to these offences. Accordingly, the sentence imposed today will date from 28 December 2018.

7. At the outset I note that the co-offender Cheree Turner appeared before me for sentence on 7 August 2019 (R v Turner [2019] NSWDC 618). She was sentenced to a total aggregate sentence of 10 years imprisonment with a non-parole period of 6 ½ years after receiving a combined discount on sentence of 40% (for the plea of guilty and assistance).

Crown material on sentence

8. The following material was tendered by the Crown during the sentence proceedings:

• Exhibit A - Crown material including Form 1, statement of Agreed Facts, criminal history, custodial movements history, victim impact statement and material in relation to the co-offender Cheree Turner including the remarks on sentence.

• Exhibit B - Crown written submissions

Agreed facts

9. The victim, Glenn Witherspoon (aged 46 years) owned and managed an accountancy practice, Central Coast Taxation Group Pty Ltd, trading as Central Coast Taxation. The business was located in Long Jetty and had a total of seven employees.

10. Sometime in 2015 Witherspoon answered a “Wanted” advertisement for childrens’ clothing and toys posted by the co-offender Cheree Turner on a Facebook group for buying and selling items on the Central Coast. Witherspoon and Turner communicated by Facebook, Messenger and telephone. Turner told Witherspoon that she did not have much money, and Witherspoon said he would give her the items for free because he could afford to.

11. A short time later Witherspoon attended an address in Wyoming supplied by Turner and dropped off the items. At that time, Turner introduced Witherspoon to her partner, this offender Robert Pughe.

12. Around 3 or 4 months later, Witherspoon received a Facebook message from Turner, whom he had not heard from since their meeting in Wyoming. Turner told Witherspoon that she and Pughe had broken up. She said Witherspoon seemed like a nice person and asked him if he wanted to meet with her.

13. Over the next few months Witherspoon and Turner communicated via Facebook and SMS message. They organised to meet in person on a few occasions during this time, but on each occasion Turner failed to turn up.

14. During that period, Witherspoon and Turner exchanged sexually explicit photographs via SMS message. Turner sent Witherspoon photographs of her breasts and vagina. Witherspoon sent Turner nude photographs of himself in reply. Also during that time, Witherspoon voluntarily provided sums of money to Turner on several occasions, ranging from $200 to $400, for vehicle repairs, storage facility fees and groceries. Turner told Witherspoon she would repay him, but he did not expect to be repaid and was not bothered by it. Witherspoon deposited the funds into Turner’s Westpac bank account via Internet banking.

15. On 28 July 2016, Turner sent an SMS message to Witherspoon requesting $400 so she could purchase a new mobile phone. Witherspoon transferred the money when he arrived at work that morning.

16. Sometime later that morning, Witherspoon received an SMS message from Turner which said words to the effect of, “You agree to loan me $10,000. If you don’t, I will plaster information on Facebook and Instagram and do anything to destroy your business.” Witherspoon then telephoned Turner and told her he never agreed to give her $10,000. Turner said words to the effect of, “That’s it, I’m gunna accuse you of raping me and sleeping around.”

17. At around 8.00pm that evening Witherspoon attended The Entrance Police Station and spoke with Senior Constable Meers. He stated that he had previously been in a sexual relationship with Turner and had lent her money on several occasions. He told Meers that Turner had requested $10,000 from him that day and he intended to “cut her off”. Witherspoon then left the police station. At 8.40pm Meers telephoned Turner and spoke with her about Witherspoon’s report. Turner said that Witherspoon owed her money and made a reference to WorkCover.

18. A short time later, Witherspoon received a phone call from Turner who told him she had just left the police station. They arranged to meet at the 7 Eleven in Long Jetty, where Turner produced an A3 document which Witherspoon signed. Witherspoon told Turner he was only agreeing to give her the money so the matter could end and he did not want any further contact with her. The document read, in part:

“I cheree Turner,

agree to never uploading nor telling anyone about conversions[sic], texts, pitures or anything ever discussed Between myself & Glenn Witherspoon also to anyone or on social media Platform, also Deleting texts, pitures & facebook messages.

Nothing to ever be brought up again after reciving 4 payments of $2500 Made to my bank account…

& never anything more & also losing all contact with each other I also agree that I or anyone none to me will never approach glenn Witherspoon or his business to cause harm or grief…”

19. Turner signed the document, but Witherspoon did not.

20. Later that evening, Witherspoon made the first payment of $2,500 to Turner’s bank account via electronic funds transfer (“EFT”). He then made three further payments of $2,500 on 1, 2 and 5 August 2016, for a total of $10,000.

21. On or around 5 August 2016 Witherspoon received another SMS message from Turner. The message indicated that Turner had a friend who would post derogatory material on Facebook if Witherspoon did not pay her $5,000. On 6 August 2016 Witherspoon transferred $3,000 to Turner’s bank account via EFT. He transferred a further $2,000 to her bank account on 7 August 2016. These transactions were processed on 8 August 2016.

22. Turner continued to contact Witherspoon via SMS message and telephone. Turner made threats to harm Witherspoon’s 8 year old daughter and indicated that she knew which school she attended.

Count 1 on indictment

Demand with menaces by accusation person has committed serious indictable offence (s.249K(2) Crimes Act 1900) - $AU20,000

23. Sometime in August 2016 Witherspoon received an SMS message from the offender Robert Pughe, which said words to the effect of, “It’s Robert Pughe, Cheree’s ex. I know you’ve been giving her money and I want a piece of the action or I’m going to fuck you over.” Witherspoon did not respond to this message. A short time later Pughe telephoned Witherspoon and said words to the effect of, “Don’t fuck with me. If you don’t do what I want it won’t end well for you.”

24. Witherspoon attended The Entrance Police Station the following day and spoke with an officer about taking out an Apprehended Violence Order against Turner and Pughe. Witherspoon was told that it was not a police matter. Later that day, Turner telephoned Witherspoon and told him he had been “foolish” by going to the police and it would now cost him more.

25. Later that day Pughe telephoned Witherspoon and arranged to meet with him at the 7 Eleven in Long Jetty. Witherspoon had a conversation with Pughe, who was in a silver Commodore vehicle. Witherspoon saw a large knife, similar to a machete, on the centre console inside the vehicle. Pughe told Witherspoon he had to keep “paying up” or he would get hurt.

26. On 14 August 2016 Witherspoon transferred $12,000 to Turner’s Westpac account. On 15 August 2016 he transferred a further $8,000 to her Westpac account.

27. On 14 August 2016 and 15 August 2016, prior to the transfers being made, Pughe visited Witherspoon at the Central Coast Taxation office. Pughe threatened to make complaints that Witherspoon had paid an underage girl for sex and had sexual relations with one of his employees. Pughe threatened to report Witherspoon to WorkCover.

28. On 14 August 2016, Pughe signed a typed document prepared by Witherspoon, which read in part:

“I Robert Pughe acknowledge that all statements made against Glenn Witherspoon are not true which includes statements to the effect of that he was paying off an underage girl for sex and one working for him and I will refrain from making any other or further statements about him. This includes to all that were mentioned in the text to him which were WorkCover, the Police, the Press and Media and anyone else who wants a story or know about one…

I Robert will not allow anyone known to either Cheree Turner or Robert Pughe to make any more threats or attempts to extort or blackmail him any further…On receipt of $12,000 this will be the last anyone…will contact or attempt to contact him by any means…”

29. Pughe also signed a similar document on 15 August 2016 in relation to the further payment of $8,000.

Sequence 4 Form 1 attaching to Count 1 on indictment

Demand with menaces intending to obtain gain/cause loss (s.249K(1) Crimes Act 1900) - $25,000

30. On 24 August 2016 Witherspoon received an SMS message from a telephone number he did not recognise. The message contained a further threat and demand for $25,000 to be transferred to Turner.

31. On the morning of 25 August 2016 Witherspoon attended The Entrance Police Station and had a further conversation with Senior Constable Meers. Witherspoon told Meers that he had paid Turner $10,000 to finalise the matter, but Turner continued to demand money from him. Meers noted that Witherspoon appeared “unwilling to take first step to disconnect from Turner”.

32. Later that day Turner contacted Witherspoon by telephone. Turner indicated that she knew Witherspoon had again been to the police, and called him a “fucking dog” and a “fucking cunt”. Turner demanded Witherspoon pay her $25,000. Witherspoon transferred $25,000 to Turner’s Westpac bank account. He phoned her and advised that the funds had been transferred. During that conversation Witherspoon said, “How can you do this, how dare you, making up false allegations,” to which Turner replied words to the effect of, “Talk is cheap, but your possessions are expensive. You better pay up otherwise goodbye business and you won’t see your kids again.”

Sequence 5 - Form 1 attaching to Count 1 on indictment

Demand with menaces intending to obtain gain/cause loss (s.249K(1) Crimes Act 1900) - $30,000

33. On 19 September 2016 Turner attended the office of Central Coast Taxation and spoke with Witherspoon. Turner demanded a payment of $20,000. Witherspoon provided a typed statement which both he and Turner signed. The document read, in part:

“I Cheree Turner relinquish all previous arrangements as at 19th September 2016.

I now agree with a further payment of $20,000 that this will be final payment for anything.

I trust that this will be final demand and that all materials and call history will be removed from the phone. No phone numbers will be kept. No further contact will be made. No one will be notified of Glenn’s details or further attempts will be made…”

34. Witherspoon transferred the following amounts into Turner’s Westpac bank account via EFT:

19.09.2016      $ 5,000

19.09.2016      $10,000

21.09.2016      $15,000

$30,000

Sequence 6 – Form 1 attaching to Count 1 on indictment

Demand with menaces intending to obtain gain/cause loss (s.249K(1) Crimes Act 1900) - $64,000

35. In around October 2016 Witherspoon changed his mobile phone number. Turner and Pughe began to contact him by telephoning his office number or his work email address. The calls Witherspoon received at his office were often abusive and he became fearful of opening his emails. Witherspoon was unable to eat or sleep properly during this time.

36. On Sunday, 2 October 2016 Witherspoon received an email which read “Its really important u call me or il come n see u at office glenn” sent from email address commencing “louisecheree”. On 11 October 2016, Witherspoon received a further email from that address which read:

Hey any chance u can do 7 tomorrow I’ll 100% get u to do the other 6 weekly i really need it for the down payment please. can u ring me in morning

37. During the month of October 2016, Witherpsoon transferred the following amounts into Turner’s Westpac bank account:

12.10.2016      $13,000

18.10.2016      $10,000

19.10.2016      $ 2,500

19.10.2016      $ 1,500

19.10.2016      $ 2,000

25.10.2016      $10,000

25.10.2016      $ 5,000

31.10.2016      $20,000

$64,000

38. The subject line in Turner’s bank record for these transactions read, variously, “home loan”, “car loan” and “legal fees”.

Count 2 on indictment

Demand with menaces intending to obtain gain/cause loss (s.249K(1) Crimes Act 1900) - $30,000

39. On 14 November 2016 Witherspoon began making payments to Pughe’s St George Bank account. The following amounts were transferred:

14.11.2016      $ 3,000

16.11.2016      $15,000

18.11.2016      $12,000

$30,000

Count 3 on indictment

Demand with menaces intending to obtain gain/cause loss (s.249K(1) Crimes Act 1900) - $50,000

40. On Friday, 16 December 2016 at 5.10pm, from an email address commencing “louisecheree”, an email was sent to Witherspoon, which read, in part:

Y did u put 10 in my account but yet 55 is out of my account been transferred to some account…I don’t know what ur up too with rob but yous must think ur so fkn funny. I have stuck to my word n left u alone but if u think I’m going to let you 2 fuck me over n take all my Christmas n moving money u have another thing coming now you can pay me bk 100k in 4 lots every month starting from 2day ive fkn had it im done with you too. My mate is facing 20 yrs n is on the run in getting him to come see you both if I don’t have my money u would have heard what he done on the news at Toukley he dont give a fuck anymore n neither do I. I also have recordings of u saying threats about ur mate with no teeth from Sydney that dont give a fuck. stealing money from work plus every convo we have had so if u go to the police well so the fuck will i n work cover ur employees n ur ex n ur friends fk the pope if I have too… i don’t want to hear ur fkn lies n excusses if 25 of the 100 aint in my account by 7pm tonight im giving my mate ur address n emailing all ur employees our conversations…

41. Witherspoon transferred the following amounts to Turner’s Westpac bank account between 19 December and 22 December 2016:

19.12.2016      $ 6,000

20.12.2016      $ 2,000

21.12.2016      $10,000

21.12.2016      $15,000

22.12.2016      $17,000

$50,000

42. Between 22 December 2016 and 23 January 2017 Witherspoon’s business premises closed for the Christmas-New Year break.

Count 4 on indictment

Demand with menaces intending to obtain gain/cause loss (s.249K(1) Crimes Act 1900) - $18,000

43. On 24 February 2017, Witherspoon transferred $10,000 to Turner’s Westpac bank account. This was in response to a threat from Pughe that if he did not pay, Pughe would burn Witherspoon’s house to the ground with him inside.

44. On 28 February 2017, Witherspoon transferred a further $8,000 to Turner’s Westpac bank account.

Count 5 on indictment

Demand with menaces intending to obtain gain/cause loss (s.249K(1) Crimes Act 1900) - $16,240

45. On Friday, 24 March 2017 Witherspoon received an email an address commencing “jacksbackhoes” with the subject line “Ring rob plz”, which read, “Need to talk about something urgent very important dont ignore plz”.

46. Witherspoon then transferred $2,000 to Pughe’s St George bank account with the notation “The End”.

47. Witherspoon transferred the following amounts to Turner’s Westpac bank account:

24.03.2017      $ 2,000

24.03.2017      $ 1,240

27.03.2017      $ 5,000

30.03.2017      $ 2,000

30.03.2017      $ 3,000

30.03.2017      $ 3,000

$16,240

48. On 28 March 2017 as he left for work at around 7.45am Witherspoon noticed a black Holden utility vehicle partially blocking his driveway. As Witherspoon drove away the vehicle followed him to a set of traffic lights at Long Jetty. Witherspoon did not see the vehicle again.

49. On 6 April 2017 while driving his daughter to school, Witherspoon again noticed a vehicle partially blocking his driveway, being a red Toyota panel van, which proceeded to follow Witherspoon’s vehicle for a short distance.

50. Witherspoon began to sleep some nights at the Central Coast Taxation office as he felt unsafe in his residential home.

51. At around this time, Pughe told Witherspoon that Turner had “mates” watching Witherspoon’s every move. Witherspoon also had several conversations with Pughe and Turner during which they would demand money to pay for their dealings in prohibited drugs. Pughe and Turner told Witherspoon that Pughe was in debt to the Rebels OMCG, and that if Witherspoon did not meet their demands immediately they would tell the OMCG where Witherspoon was. Pughe and Turner also threatened to tell the Rebels OMCG that Witherspoon was dealing prohibited drugs on their “patch”; and told Witherspoon that if he did not make payments to them the Rebels would take him into the Watagan Mountains and sexually assault him. Pughe and Turner again made it clear to Witherspoon that they were aware of where his parents lived and where his daughter attended school.

Count 6 on indictment

Demand with menaces intending to obtain gain/cause loss (s.249K(1) Crimes Act 1900) - $4,115

52. On 24 May 2017 Pughe attended Pacific Smiles Dental at Bateau Bay for an appointment. At 12.06pm Pughe attended the reception area to finalise the bill. He told the receptionist, Kelly Jackson, that his uncle, an accountant from The Entrance, would pay the bill via credit card over the telephone. Pughe provided the phone number for Central Coast Taxation and Jackson telephoned the office.

53. Jackson spoke with the receptionist at Witherspoon’s office who stated that Pughe was not known at the office and was not related to anyone who worked there. Pughe and his partner became annoyed and said they would go and speak with his uncle to obtain the money. Witherspoon became aware of the conversation and telephoned Turner. He told Turner to stop calling the office and disrupting his business. Turner replied that she could do whatever she wanted, and that if Witherspoon wanted to “play games” then it was “game on”.

54. Pughe then spoke with Witherspoon over the phone and said words to the effect of, “Keep your dog out of my business or I come to the office and throw petrol over them all and burn the office to the ground. You’ve got 5 minutes to put all the money into the account.” Pughe demanded $115 to pay the dentist’s bill, together with $2,000 spending money for Pughe and $2,000 for Turner who needed a “drink”.

55. Witherspoon immediately transferred $2,115 and $2,000 into Turner’s Westpac bank account.

56. Sometime after lunch, Pughe returned to Pacific Smiles Dental at Bateau Bay and paid his account in full in cash.

Sequence 12 – Form 1 attaching to Count 1 on indictment

Demand with menaces intending to obtain gain/cause loss (s.249K(1) Crimes Act 1900) - $37,700

57. Throughout May 2017 and into June 2017 Witherspoon continued to make payments to Turner’s Westpac bank account in response to the demands of Turner and Pughe. Sometime in May or June 2017 Witherspoon recalled seeing a male matching Pughe’s description parked outside his daughter’s school one morning when he dropped her off.

58. Also sometime in May 2017 Witherspoon telephoned the Australian Federal Police seeking help. He was told that the matter was a “State” matter and that the Federal Police could not assist him.

59. Witherspoon continued to transfer the following amounts to Turner’s Westpac bank account between 25 May 2017 and 16 June 2017:

25.05.2017      $ 900

25.05.2017      $2,000

29.05.2017      $7,000

01.06.2017      $ 900

01.06.2017      $2,000

02.06.2017      $3,000

08.06.2017      $ 900

08.06.2017      $2,000

08.06.2017      $1,000

13.06.2017      $1,000

13.06.2017      $ 7,000

14.06.2017      $ 3,000

15.06.2017      $ 1,000

16.06.2017      $ 6,000

$37,700

Count 7 on indictment

Demand with menaces intending to obtain gain/cause loss (s.249K(1) Crimes Act 1900 - $243,000

60. On 26 June 2017 Turner contacted Witherspoon by phone and told him that she would be visiting his office the following day.

61. On 27 June 2017 Turner and Pughe attended Witherspoon’s office at around 6.00pm. Witherspoon was at the office alone. Turner and Pughe demanded more funds from Witherspoon. Witherspoon became angry and said words to the effect of, “I’ve had enough, I don’t deserve this.” Pughe slammed his fist on Witherspoon’s desk and told Witherspoon that his family was in a gang in Sydney and would visit Witherspoon and “tear him to shreds”.

62. Turner and Pughe demanded $15,000 to purchase a new car for Turner’s mother, Janine Turner, and $25,000 to purchase a new car for Turner. Turner told Witherspoon she was a “princess” and needed a BMW vehicle to keep up with her “princess lifestyle”. Pughe demanded $25,000 for “spending money”. Turner also demanded that rental payments of $700.00 per week be paid by Witherspoon, as well as $5,000 spending money per week for 10 weeks. As a result of the threats, Witherspoon reluctantly agreed to pay these funds.

63. Witherspoon typed up a document containing admissions from Turner that she had been extorting him for a lengthy period of time, and had to date received at least $801,140.00 in her bank account as a result of the extortion. Turner signed the document, which was incorrectly dated “26 June 2016”.

64. Witherspoon also typed up a second document addressed to “Local Chief Inspector, Central Coast”, again incorrectly dated 21 June 2016; confirming that Pughe had also extorted Witherspoon on several occasions and made various threats to harm him. Pughe signed this document and dated it “27/6/17”.

65. Between 27 June 2017 and 25 August 2017, Witherspoon transferred the following amounts to Turner’s Westpac bank account:

27.06.2017      $ 2,000

29.06.2017      $ 1,400      (notation: ‘2 weeks rent’)

30.06.2017      $ 5,000

03.07.2017      $ 3,000      (notation: ‘Rob bike’)

03.07.2017      $ 2,000      (notation: ‘Rob’)

04.07.2017      $ 6,300      (notation: ‘9 weeks rent’)

05.07.2017      $ 1,400      (notation: ‘2 weeks rent FINAL’)

06.07.2017      $ 2,000      (notation: ‘car’)

07.07.2017      $ 15,000      (notation: ’15 for 25’)

07.07.2017      $ 5,000      (notation: ‘5 for 12 Fake’)

07.07.2017      $ 2,000      (notation: ‘Rob move’)

13.07.2017      $ 10,000      (notation: ‘car payment’)

14.07.2017      $ 25,700

20.07.2017      $ 5,700

24.07.2017      $ 5,000

24.07.2017      $ 700   (notation: ‘rent 3/10’)

24.07.2017      $ 25,000   (notation: ‘Cheree car’)

24.07.2017      $ 30,000   (notation: ‘Rob Jul18 Pmnt’)

24.07.2017      $ 8,000   (notation: ‘Ree Jul18 Pmnt’)

03.08.2017      $ 45,000   (notation: ‘Oct Pmnt’)

03.08.2017      $ 700

03.08.2017      $ 5,000

10.08.2017      $ 700

10.08.2017      $ 5,000

14.08.2017      $ 20,000   (notation: ‘Rob extra’)

17.08.2017      $ 700

17.08.2017      $ 5,000

21.08.2017      $ 700

21.08.2017      $ 5,000

$243,000

66. Throughout this period, Pughe or Turner would telephone Witherspoon to request the instalment payments. On some of these occasions Pughe told Witherspoon that the Rebels OMCG were at his door because he owed them drug money, and if Witherspoon did not transfer funds Pughe would pass his details on to them.

Count 8 on indictment

Demand with menaces intending to obtain gain/cause loss (s.249K(1) Crimes Act 1900) - $39,900

67. Cheree Turner continued to demand payments from Witherspoon to cover her rental expenses and “spending money”. On 7 September 2017 at 11.44am and 11.46am Witherspoon received emails from an address commencing “louisecheree” demanding that Witherspoon telephone her straightaway or else she would phone his office number.

68. Between 7 September 2017 and 14 September 2017 WIitherspoon transferred the following amounts into Turner’s Westpac bank account:

07.09.2017      $22,800

11.09.2017      $11,400

15.09.2017      $ 5,700

$39,900

69. On Saturday, 9 September 2017 Marissa Chapman was at the Central Coast Taxation Office working with Witherspoon. Witherspoon said words to the effect of, “You’re right about that guy the other week. He didn’t come in to get his tax sorted. He has extorted money from me.” Witherspoon showed Chapman a photograph on his mobile phone depicting the male visitor and the firearm. Witherspoon told Chapman that the male had a gun and had held it to Witherspoon’s head. Witherspoon told Chapman that he had been extorted for sums in excess of $300,000. Witherspoon was upset and crying. Chapman asked if he had been to the police and Witherspoon said he had previously contacted police. Later in the afternoon, the Practice Manager, Tracey Morris, arrived at the office and Chapman disclosed to her what had been happening to Witherspoon

Sequence 15 – Form 1 attaching to Count 1 on indictment

Demand with menaces intending to obtain gain/cause loss (s.249K(1) Crimes Act 1900) - $20,000

70. On Wednesday, 18 October 2017 Witherspoon received several emails throughout the day from an email address commencing “louisecheree” all of which read, “Need u to do 10 today n 10 Friday. Also his in remand at parklea cc u can ring n find out same last name as me”. Witherspoon did not make any payment to Turner. At 4.13pm Witherspoon received a further email from the address commencing “louisecheree” which read, “Need that 10 asap”. Witherspoon again did not make any payment.

71. Witherspoon then received a telephone call from Turner who told him to meet with her at an address in Buff Point.

72. At this point, Witherspoon told some of his friends what had been happening to him.

73. On Thursday, 19 October 2017 Witherspoon received several emails from the address commencing “louisecheree” the content of which included:

• 9.26am U better fkn ring me now or im coming there now. getting cunts to ring theatning me mate wrong time mate i did u a favour dont forget that. had a house full of people n ur mate was on speaker ring me or games on u n ir corruption will be on the news tonight.. i stuvk to my side of the deal now u wanna play games wel see

• 9.31am Il be taking every recording to the police as well as all the times u got me to extort people for u the drugs u funded my bro so u could get extra money everything absolutely everything

• 10.13am I want 10 now cunt swear u got 5 mins im picking a mate up n coming in. im sick of u n ur games n threats. I should just say fuck it n take everything i have on u to crs n my lawyer n leak everything out n put u in jail instead

• 10.27am This is my mate john ive known him for yrs im gunna tell him ur throwing his family around rob has recordings too mate. fkn ring me glenndeno [attachment: Facebook profile of John Ibrahim]

• 2.21pm Are you fkn serious smart ass i said i needed it b4 i pick kids up from school at 2.30

• 5.36pm Fuck et il get the 50 tomorrow n 100 1st November n il send rob the recording of ur mate this morning.

74. Later that afternoon Witherspoon attended Turner’s residence at Buff Point. He was accompanied by two acquaintances of a large Maori build. The two males stood out on the road. Witherspoon approached Turner, who was seated on the front veranda smoking. Turner became verbally aggressive and Witherspoon began to walk away. Turner signalled for Witherspoon and the two males to come back. Turner began saying that her uncle ran the Rebels OMCG. One of Witherspoon’s acquaintances said to Turner, “We can be Rebels too, just leave the bloke alone, he’s not going to pay any money.” Witherspoon and the two males then left.

75. At 11.19pm Witherspoon received another email from an address commencing “chereelouise” which read:

Tell ur mates to come back now while theres guys bigger then them here n not just a pregnant women n 4 kids. as if I wouldnt call in my family n robs family. sending people to my house pow pow mother fucker they didnt intimidate me at all good try but ahaha. dont forget i know where ur mum lives ur ex as well kids school. u wanna stoop that low cunt. now u pay up by tomorrow the lot n the info u snitch. Or u have declared war mother fucker i swear on my kids cunt. btw my hole house is covered in cameras dickhead next time smile bitch. i aint ever did nothing to u i even protected u from my own brother but mate i should have let him come at u. ring me tonight or by 9am cos i mean that i aint waiting to Monday fkn dog no cunt comes to my house while im 38 weeks pregnant n have 4 sleeping kids. pay up n give me what u owe by tomorrow or its war 100% u will see

Count 9 on indictment

Demand with menaces intending to obtain gain/cause loss (s.249K(1) Crimes Act 1900) - $16,000

76. At 1.19am on Friday, 20 October 2017, Witherspoon received an email address commencing “louisecheree” which read:

This is exactly how its going ur very silly mate. u will pay me the 20 in my mums account by 10am. then u can pay the 120 off. 6 pw i will not contact u at all ever as long as 6 every Friday by 9am when the hole 150 has been paid u ring me to give me info. so after I get 20 tomorrow by 10am n 6 every Friday by 9am I will never contact u again or tell anyone about tonight n tell ur wanna be mates its sorted…or dont pay I will harass u… n tell every mother fucker about tonight n give out urs n familys address n have ur bussniss shut down n have on camera u n ur mates harassing a pregnant women at her home were kids sleep hhmmm… ring me by 9.30am n tell me how u want it …if I don’t hear from u by 9.30am it eams u want to go all on with it n im happy for that cos i know whos coming out on top either way ahaha. biggest kisses mwahhhhh…

77. At 7.46am on Friday, 20 October 2017 Witherspoon received an email address from “youraclown17” with the subject line, “Ring cheree dog”. The email read:

You better ring cheree cunt i mean it glenn Witherspoon going to my familys house where kids were with your black pebels i mean rebels bring the black dogs today watch me put a 22 in there head and then skull fuck u in the same hole you dont ring by 830 im comin looking for you cunt and just remember knowones untouchable so wanna play you better sleep with 1 eye open coz im gonna fuckn gonna make ur life hell for threatening a pregnant women i also want to know what there rank is and what chapter they comw from ring me now if i don’t here from you its war im gonna fuck you up see you around

78. At 7.47am Witherspoon received a further email from the same address which read, “Tick tock tick tock”.

79. At 7.53am Witherspoon received a further email from the same address which read:

Glenn if u do not contact me its on i have already spoken to some known associates of mine who stand behind me and family 100% so tell your rebel mates unlucky im gonna take there patch do they know anyone from the coast chapter theres in big trouble comin up unannounced pffff funny as rimg me or get them black dogs 2

80. At 8.59am Witherspoon received an email from an address commencing “chereelouise” which read, “4 3 2 1…. ahaha or im off to goro”. Witherspoon took the reference to “goro” to mean Gorokan, the suburb where his mother resided.

81. Witherspoon did not respond to any of the emails. He then received a phone call from Pughe on his old mobile phone number. Pughe told Witherspoon that he would come after Witherspoon’s daughter and mother unless Witherspoon paid him that day. Pughe said he would visit Witherspoon’s mother and get the money from her. Witherspoon told Pughe he could only come up with $16,000 that day. He told Pughe that he would go to the police if his mother was harmed in any way. Witherspoon also spoke to Cheree Turner, who directed him to transfer the money into her mother Janine Turner’s bank account. Cheree Turner told Witherspoon she wanted a further $10,000 the following Friday.

82. Witherspoon transferred $16,000 into Janine Turner’s Westpac bank account.

Count 10 on indictment

Demand with menaces intending to obtain gain/cause loss (s.249K(1) Crimes Act 1900)

83. On Friday, 27 October 2017 at 10.51am Witherspoon received an email from an address commencing “glenndeaddog” with the subject line “Ring me glenn now”, which read:

Glenn ring me asap cunt or im taking video to cops of u threatening pregnant woman youll lose everything cunt and then sleep with 1 eye open mutt cos everyone knows someone tell you what 1 hr or ill be at long jetty fair enough

84. At 11.00am Witherspoon received a further email from the same address which read, “Guess whos going to school today mutt pull your dogs up or its a eye fora eye”.

85. Sometime that morning, Witherspoon’s receptionist Marissa Chapman took a telephone call from a male purporting to be “Joe Fonzerelli”. The male said words to the effect of, “Glenn was supposed to do something for me and he hasn’t,” and demanded to speak with Witherspoon. Chapman transferred the call to Witherspoon. Witherspoon recognised the male’s voice as that of Pughe. Pughe verbally abused Witherspoon and demanded more money. Witherspoon terminated the call. His employees Chapman and Tracey Morris spoke with him about the phone call, and Witherspoon told them that the person who had called was one of the people who had been extorting him.

Investigation and Arrest

86. At around 11.30am Tracey Morris contacted Wyong Police Station and reported the matter to police.

87. At around 12.15pm Detective Senior Constables Erickson and Milton met with Witherspoon at a location in Bateau Bay. Witherspoon told them he was the victim of an extortion involving Cheree Turner and Robert Pughe. Witherspoon told police that as a result of being continually threatened by those persons he had been transferring sums of money into their nominated bank accounts. Witherspoon attended Wyong Police Station and made an initial statement to police.

88. On the morning of Saturday, 28 October 2017 at around 10.15am police attended an address in Buff Point to execute Search Warrant. After knocking at the front door it became apparent that there were no persons at the premises. Police forced entry to the premises and commenced the search. Police seized various items including mobile telephones and two Apple iMac computers.

89. After returning to Wyong Police Station, Detective Senior Constable Milton received a telephone call from Cheree Turner inquiring as to the reason for the search at her premises. Milton requested Turner and Pughe attend the police station to discuss the matter.

90. At around 3.40pm that afternoon Cheree Turner and Robert Pughe attended Wyong Police Station with a solicitor. They were both placed under arrest. Pughe said, “Yes but there were contracts.”

91. Police then administered both accused with a special caution. Both Turner and Pughe declined to participate in a recorded interview with police.

92. Turner and Pughe were subsequently charged with the matters before the Court.

Representative Conduct

93. The offences outlined above represent specific incidents which took place between 25 August 2016 and 27 October 2017 (being a total sum of $613,955.00). During this period, the victim Witherspoon was extorted by the offenders for a total sum of $993,845.00.

Assessment of objective seriousness

94. Those Agreed Facts clearly disclose very serious objective criminality. As I previously observed in relation to the co-offender Turner, this was a sustained and vicious campaign against the victim lasting 14 months which had very significant detrimental consequences to his life. General deterrence is a paramount consideration on sentence. A civilised society cannot tolerate such grave and abhorrent behaviour as demonstrated by this offender and his co-offender.

95. In The Queen v Son Vo [1998] VSC 319 Callaway JA (with whom Philllips CJ and Batt JA agreed) observed as follows:

“Blackmail is an offence that is frequently hard to detect, especially where, as in this case, the perpetrator preys, or attempts to prey, on the fear that his or her conduct inspires.”

96. Callaway JA, after acknowledging that blackmail is a crime that requires the victim to be put in fear and kept in fear, stated as follows:

“… For that reason, it is essential that those who have the courage to report the offence or to give evidence for the Crown know that their efforts will not be wasted and that the offenders will be appropriately punished.”

97. In relation to offences of blackmail the court must ensure that sentences are imposed that deter others from committing similar offences. The court has an important role to play in imposing punishment which has, as one of its purposes, to protect the community from such offending.

98. In assessing the objective seriousness of the offence of demand with menaces by accusation that a person has committed a serious indictable offence (section 249K(2), Crimes Act) (Count 1), I have taken into account the following factors:

1. The nature of the threatened accusation that was made, namely that the victim had paid an underage girl for sex and had sexual relations with one of his employees.

2. The menaces included telling the victim “I’m going to fuck you over”, that he had to keep “paying up” or he would get hurt and threatening to report the matters to WorkCover.

3. The amount of $20,000 was paid by the victim.

99. Having regard to those factors, I assess the objective seriousness of this offence is being in the middle of the range.

100. In assessing the objective seriousness of each of the offences of demand with menaces intending to obtain a gain (counts 2 – 10)(section 249K(1)(a), Crimes Act), I have taken into account the following factors:

1. The nature of the demands and menaces including threats towards the victim’s business, threats of harm to his children and his mother, threats to burn his house to the ground with him inside, threats that the victim was being watched by the offenders “mates”, threats that the Rebels OMCG would become involved if the victim did not pay demands and that he would be taken to the Watagan Mountains and be sexually assaulted, making the victim aware that the offenders knew where his parents lived and where his daughter attended school, on one occasion the victim told an employee at his business that the offender had a gun and had held it at the victim’s head, and calls made to the offender’s business which disrupted the operation of that business.

2. The amount of the loss incurred with respect to each offence ranges from $4115 - $243,000, with the exception of count 10 where there was no payment of funds.

3. The charges are representative counts, the 10 offences relating to demands totalling $613,955 (also taking into account the Form 1 offences) in circumstances where the total amount of the loss is $993,845.

4. None of the funds paid have been recovered.

5. The offending conduct only ceased because one of the victim’s employees reported the matters to police.

101. I regard the objective seriousness of counts 2-6 and 8-10 as being in the middle of the range. I assess the objective seriousness of count 7 as above the middle of the range in circumstances where the amount of the demand with respect to that offence was for a total amount of $243,000, the demands being made on 29 separate occasions between 27 June 2017 – 21 August 2017.

Victim impact statement

102. The victim Glenn Witherspoon has prepared a victim impact statement. He describes the emotional impact of the offending as follows:

“..since the constant threats for me in my daughter’s life and future I was always on edge. I would always ensure doors were locked at home and a constant watch at my place of business. When I was alone everything was locked up like Fort Knox and windows covered. I’m still on edge after these events.”

103. He also describes a very significant financial impact caused by the offending in circumstances where he funded the payments of the demands by obtaining finance or borrowing from friends or clients.

104. The offending also had a significant impact on his business in circumstances where he lost staff.

105. He concludes as follows:

“..this all has impacted on my health, welfare in my business. Financially, it has affected me not only in the money taken but also the time to deal with Cheree and others constantly in the state of depression also affected the stream of income as work was not being completed consistently. Then the time away from the business to deal with this.

I am coming to terms with this and trying to relax and destress. I am trying to live a normal life again.”

106. The victim impact statement describes the devastating effects of the offending upon the victim. The court has no doubt that the ongoing effects of the offending upon the victim and his family were significant. The court is hopeful that with the passage of time the victim and his family are able to look forward to a much more positive future.

107. One of the purposes of sentencing is to recognise the harm done to the victim (section 3A(g), Crimes (Sentencing Procedure) Act).

Subjective circumstances

108. The offender is now 31 years old.

109. He has a criminal history commencing in 2007 when he was dealt with for an offence of larceny and a fine was imposed.

110. In 2009 he was dealt with for a further offence of larceny and a fine was imposed.

111. In 2014 he was dealt with for possess prohibited drug and a fine was imposed.

112. In 2016 he was dealt with for receiving stolen property and shoplifting. In respect of each matter he received a fine and a 2 year bond. In 2017 each of those bonds was called up and he received a further 2 year bond. In 2019 each of those bonds was called up and he received a 1 month term of imprisonment.

113. In 2017 he was dealt with for destroy or damage property (bond for 2 years); 3 offences of contravene apprehended domestic violence order (bond for 2 years in respect of each offence); and drive whilst qualified (section 12 suspended sentence for 9 months).

114. In 2019 he was dealt with for an offence of larceny (imprisonment 3 months) and drive whilst disqualified (imprisonment 5 months and 21 days).

115. He also has numerous other traffic matters on his record.

116. I am satisfied that the offender’s criminal history disentitles him to the leniency on sentence that would be available to a person with no previous convictions.

117. There was no documentary evidence tendered on behalf of the offender during the sentence proceedings.

118. The offender gave the following evidence during the sentence proceedings. He has one brother and 2 older sisters. He is the youngest child. For a long period until he was 13 years of age his father was in gaol being described as a career armed robber. He saw his father whilst he was in goal. He “used to think he was at work”.

119. From 13 years of age he lived with his mother and father. When the offender was 16 years old, his parents moved to Queensland and lived in Cairns. At this time, the offender was already in a relationship with his co-offender Turner. He has been in that relationship all of his adult life.

120. At some stage, his father contracted cancer and his parents moved to Brisbane. His father passed away approximately 5 months ago. His mother now lives in Brisbane and has full care of his brother’s children.

121. The offender was previously employed as a brick layer and had worked in that profession from 17 years of age.

122. At the time of the offending, he was involved in a relationship with his co-offender Turner and they have 5 children together aged 1, 2, 7, 10 and 11 years. The children are currently living with the co-offender’s mother.

123. When the offending began in 2016 the offender was living with his co-offender.

Drug and alcohol history

124. The offender gave evidence that he commenced using marijuana at 13 years of age. He had been using “ice” since he was 21 years old.

125. The offender recounted that since 13 years of age he has had drug induced psychosis. On one occasion when he was 13 years old he consumed so many drugs that he was in a coma for a period of 6 months. The offender has not previously engaged in any residential drug rehabilitation programs or previously been supported in the community with respect to his mental health.

126. Whilst he has been abstinent from illicit substances in custody, he described that his “ice” habit has left him with psychosis. Specifically, when he tries to rest at night he described hearing voices. Since being in custody he has seen a psychiatrist and is now on medication that has assisted with the symptoms of the psychosis. He continues to take anti-psychotic medication.

127. During the period of the offending, the offender gave evidence that he was using “ice”. He has no memory of signing any documents relating to the demands made upon the victim and he did not recall making the threats. He said he was drug affected during the entire time. He denied that at any stage he was in a vehicle outside the victim’s children’s school or house. In relation to the offender being drug affected at the time of the offending, pursuant to S21A(5AA), Crimes (Sentencing Procedure) Act I note that self-induced intoxication is not a matter to be taken in account in mitigation.

128. The offender described that most of the funds received as a result of the offending were used to buy drugs and gamble. On one occasion he recounted spending $10,000 in one day at the poker machines at Budgewoi Soccer Club. He was also spending up to $2,000 a day on drugs. A motorcar was also purchased for $33,000.

Current circumstances of the offender

129. The offender gave evidence that he has been drug free whilst in custody and has completed a number of courses including a first aid course, work health and safety course, domestic violence course and the remand addictions course.

130. Whilst in custody he has worked in the metal shop building greenhouses and chairs for Bunnings. He receives $24 a week. Upon release from custody he intends to go back to work as a bricklayer. He has been previously certified as a bricklayer. His intention is to be a good role model for his children in circumstances where he realises the effect of his incarceration upon them.

131. The offender was supported in court by his grandmother, two aunties, his mother-in-law and his two sisters-in-law.

The relevance of mental health on sentence

132. In DPP(Cth) v De La Rosa [2010] NSWCCA 194 at [177] McClellan CJ at CL summarised the principles relevant to sentencing an offender suffering from a mental illness as follows:

1. Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently, the need to denounce the crime may be reduced with a reduction in the sentence;

2. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed;

3. It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced;

4. It may reduce or eliminate the significance of specific deterrence; and

5. Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence.

133. Having regard to the offenders evidence, whilst I am not satisfied there is any causal link between the offender’s mental illness and the offending, I am satisfied that custody will be more onerous for the offender. Accordingly, I propose to moderate the otherwise appropriate sentence.

The relevance of the offender’s background on sentence

134. It was submitted on behalf of the offender that having regard to the offender’s deprived background, the offender’s moral culpability is reduced (see Bugmy v The Queen [2013] HCA 37 at [42] to [44]). Specifically, the offender had an early addiction to drugs and was exposed to criminal offending by his father.

135. Having regard to the offender’s experiences in childhood, I am satisfied that some moderation of the otherwise appropriate sentence is appropriate in circumstances where the offender was deprived of appropriate moral guidance during his early years.

Submissions on sentence

136. In determining the appropriate sentence, I have had regard to the written and oral submissions on behalf of the Crown and oral submissions of Mr Murray of Counsel on behalf of the offender.

137. During the sentence proceedings the Crown relied upon the following authorities: R v Hadjou (1989) 11 Cr App R (S) 29, R v Barroso [1998] VSC 249, R v Son Vo [1998] VSC 319, Attorney General’s Reference No 40 of 2002 (John Alexander Collard) [2003] 1 Cr App R 98. I have had regard to those authorities.

138. As I previously observed in relation to the co-offender Turner, whilst the authorities relied upon by the Crown deal with a very wide range of factual circumstances, the common theme is that the courts regard blackmail as an extremely serious offence. One of the reasons it is regarded as so serious is because of the possible consequences of this type of offending. Attorney General’s Reference No 40 of 2002 (John Alexander Collard) is an example of where the consequences were catastrophic in circumstances where the victim of the blackmailing offence committed suicide. Lord Justice Judge made the following observations (at 515):

“it is a horrible example of the possible consequences of this type of blackmail and why it is regarded as such a wicked offence, once identified by Lord Lane CJ as one of the most vicious crimes in the calendar of criminal offences.”

139. It was conceded on behalf of the offender that the Agreed Facts disclose very serious objective criminality having regard to the very large sums of money involved.

140. In relation to the offender’s prospects of rehabilitation, it was submitted that there were some positive signs in circumstances where the offender had been drug-free since being returned to custody on 26 October 2018. This is the first time in the offender’s life since he was 13 years old that he has not been using drugs.

Prospects of rehabilitation

141. At this stage, I am unable to find that the offender has good prospects of rehabilitation in circumstances where he has long standing drug issues which remain untreated.

142. However, I accept the submission made on behalf of the offender that there are some positive signs. The offender has now been drug-free for a lengthy period of time whilst in custody, he has good family support and intends to re-engage with employment upon his release from custody. The court is hopeful that upon release from custody the offender does engage with supervision and treatment to ensure that he does not relapse into drug use. One would expect that his children would be a very important motivating factor.

143. I am also unable to find at this stage that the offender is unlikely to reoffend.

Remorse

144. The offender gave evidence that he had read the victim impact statement. He said he was very remorseful for the crimes he had committed and he would apologise to the victim if he was in court. Having regard to the evidence of the offender, I am satisfied that he is remorseful.

Form 1 offences

145. In sentencing the offender for Count 1, I have taken into account the five Form 1 matters in accordance with the principles enunciated in  Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146. The 5 matters on the Form 1 relate to funds totalling $176,700.

Parity

146. The general principle is that where offenders are being dealt with for the same offending (assuming all other things are equal), they should expect to receive the same sentence thereby avoiding any justifiable sense of grievance.

147. As previously noted, the co-offender Turner appeared for sentence before the Gosford District Court on 7 August 2019. She was sentenced for 8 offences (one offence of demand with menaces by accusation that a person has committed a serious indictable offence (section 249K(2), Crimes Act) and 7 offences of demand with menaces intending to obtain a gain (section 249K(1), Crimes Act)). A further 7 offences of demand with menaces intending to obtain a gain (section 249K(1), Crimes Act) were taken into account on a Form 1. She had pleaded guilty in the Local Court and undertaken to provide assistance. After receiving a combined discount of 40% (25% for plea of guilty and 15% for assistance) the co-offender was sentenced to an aggregate term of 10 years imprisonment with a non-parole period of 6 years and 6 months.

148. This offender is being dealt with for 10 offences (one offence of demand with menaces by accusation that a person has committed a serious indictable offence (section 249K (2), Crimes Act) and 9 offences of demand with menaces intending to obtain a gain (section 249K (1), Crimes Act)). A further 5 offences of demand with menaces intending to obtain a gain (section 249K (1), Crimes Act) are being taken into account on a Form 1.

149. Whilst each offender was dealt with for 15 offences, there is a difference concerning how many matters were dealt with as substantive offences and how many were dealt with on a Form 1. In circumstances where this offender had less matters taken into account on a Form 1 in relation to the offence of demand with menaces by accusation that a person has committed a serious indictable offence (count 1), one would ordinarily expect his indicative sentence for that offence to be less than his co-offender. However, in circumstances where this offender has a more extensive criminal history, I am satisfied that the same indicative sentence is appropriate.

150. Also, whilst ordinarily one might expect this offender to receive a higher aggregate sentence because he is being dealt with for 10 offences (and his co-offender was dealt with for 8 offences) ultimately, I am satisfied that, if all other factors had been equal, and having regard to the question of totality, it would have been appropriate to impose the same aggregate sentence.

151. In relation to the subjective circumstances of each offender, I note the following:

1. the co-offender Turner received a combined discount of 40%. This offender is entitled to 20% discount for the plea of guilty.

2. the co offender Turner had a less extensive criminal history.

3. each offender is properly characterised as having a deprived childhood.

4. each offender is suffering from mental health issues resulting in custody being more onerous.

5. In respect of the co-offender, I was satisfied she had reasonable prospects of rehabilitation. I was also satisfied she was unlikely to reoffend.

152. In relation to the relative objective culpability of the offenders, the Crown submitted that this offender Pughe could be considered as slightly less culpable in circumstances where the co-offender Turner was responsible for the initial extortion of the victim whereas this offender became involved several weeks later. Whilst I accept that submission, when one has regard to the subjective circumstances (which are slightly more favourable in relation to the co-offender Turner), I am satisfied that it is appropriate that each offender receive the same starting terms for the indicative sentences.

Totality

153. In circumstances where I am dealing with the offender for more than one offence, I have had regard to the principle of totality. The relevant sentencing principle to consider is whether the sentence for one offence can comprehend and reflect the criminality of the other. If so, the sentences should be concurrent but if not, there should be some accumulation: see Cahyadi v R [2007] NSWCCA 1.

154. In circumstances where each offence discloses very serious objective criminality, I consider that partial accumulation is required to reflect the total criminality (in particular, that the criminal offending was for a period of 14 months). However, there will be a large degree of concurrency in circumstances where the offender is to be sentenced for a significant number of offences arising from the one episode of criminality.

Special circumstances

155. It was submitted on behalf of the offender that the court would vary the statutory ratio between the non-parole period and the parole period in circumstances where the offender has a long-standing history of drug addiction and associated mental health issues in respect of which he will require a longer period under supervision upon release. I accept that submission.

156. Accordingly, I am satisfied that it is appropriate to vary the statutory ratio pursuant to section 44(2B), Crimes (Sentencing Procedure) Act.

Aggregate sentence

157. I propose to impose an aggregate sentence pursuant to section 53A(1), Crimes (Sentencing Procedure) Act.

Determination

158. I have had regard to the purposes of sentencing as set out in section 3A, Crimes (Sentencing Procedure) Act.

159. Having considered all possible alternatives, in respect of each offence, I am satisfied that no penalty other than imprisonment is appropriate (section 5(1), Crimes (Sentencing Procedure) Act).

160. I have had regard to the objective gravity of each offence, the relevant prescribed maximum penalties and the offender’s subjective circumstances.

Indicative sentences

161. In accordance with section 53A(2)(b), Crimes (Sentencing Procedure) Act, the sentences that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence, are as follows:

162. Count 1 - demand with menaces by accusation that a person has committed a serious indictable offence, taking into account 5 Form 1 offences, a starting term of 7 years, discounted by 20% for the plea of guilty, leaving a total term of 5 years and 7 months.

163. Counts 2, 3, 4, 5, 6, 8, 9 and 10 - in respect of each of those 8 offences of demand with menaces intending to obtain a gain, a starting term of 3 years, discounted by 20% for the plea of guilty, leaving a total term of 2 years and 4 months.

164. Count 7 - demand with menaces intending to obtain a gain, a starting term of 4 years discounted by 20% for the plea of guilty, leaving a total term of 3 years and 2 months.

Orders

165. In relation to each offence you are convicted.

166. Taking into account the Form 1 matters, the offender is sentenced to a total aggregate sentence of 13 years and 4 months to date from 28 December 2018 and expire on 27 April 2032 with a non-parole period of 8 years to date from 28 December 2018 and expire on 27 December 2026.

167. The earliest date upon which you will be eligible for parole is 27 December 2026.

168. I have found special circumstances and varied the statutory ratio between the non-parole period and the parole period pursuant to section 44(2B), Crimes (Sentencing Procedure) Act.

Decision last updated: 20 May 2020