Local Court New South Wales Medium Neutral Citation: Police v Cameron Trevail [2012] NSWLC 1 Hearing dates: 16/12/2011 Decision date: 23 March 2012 Jurisdiction: Criminal Before: Henson DCJ, Chief Magistrate Decision: See paragraph [42] Catchwords: CRIMINAL LAW - sentence - Crimes (Domestic and Personal) Violence Act 2007 - Stalk and intimidate with intent to cause physical or mental harm - threat to publish video of sexual encounter unless victim agreed to further sexual intercourse - prior breaches of ADVOs and escalating nature of offending conduct - need to emphasise general and specific deterrence - no penalty other than sentence of imprisonment appropriate - Intensive Correction Order imposed Legislation Cited: Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Cases Cited: R v Borkowski [2009] NSWCCA 102 R v Boughen, R v Cameron [2012] NSWCCA 17 R v Doan (2000) 50 NSWLR 115 R v Taylor [2000] NSWCCA 442 R v Thomson and Houlton (2000) 49 NSWLR 383 Category: Principal judgment Parties: Police Cameron Trevail (Defendant) Representation: Sgt Wilczek (for the Police) Mr Richardson (for the Defendant) File Number(s): 2011/158721 JUDGMENT Remarks on Sentence 1The offender appears before the Court today to be sentenced in relation to an offence of stalking and intimidation with the intention of causing psychical or mental harm. The charge in relation to the offence is brought pursuant to section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. The maximum penalty for an offence under these provisions is 5 years imprisonment or a fine of $5,500 or both. The offence falls within Table 2 under the Criminal Procedure Act 1986. Section 268(2)(f) of that Act limits maximum penalty that may be imposed in the Local Court to 2 years imprisonment or a fine of $5,500 or both. Despite the jurisdictional limitation it is well settled law since R v Doan (2000) 50 NSWLR 115 that a Court, in assessing the objective seriousness of an offence, is to have regard to the maximum legislative penalty not the jurisdictional limit. The Facts 2A detailed statement of facts is attached to the Court papers. For the purpose of these remarks I have summarised the salient features. I have omitted the name of the victim in order to preserve her privacy. Where necessary she is described as V. 3The offender and the victim [V] had been in a relationship that was on foot in December 2008 and diminished in intensity until finally ending in November 2010. The relationship included consensual participation in sexual intercourse. 4On one occasion during the relationship the offender orchestrated the making of a video of he and V engaging in sexual intercourse. He did this without forewarning V. During the sexual activity V noticed the offender's mobile phone had been placed on the bedside table with the video lens activated such that it could record the event. 5V spoke to the offender about his conduct however it appears that intercourse continued until completion with the entirety of conduct being recorded. The facts describe the video as extremely graphic with both the face of V and the offender clearly visible along with the entirety of their respective bodies. 6At a later time, after the relationship had ceased the offender showed the victim the video. He reassured V that the video was only for him, as he wanted "a nice memory of the two of them". Whether this assertion was true at the time or not is problematic. Subsequently the offender continued to contact V both verbally and by text message. This was despite requests from the victim to cease. 7On 10 May 2011 the offender contacted V on her mobile phone. He told her that if she did not have sexual intercourse with him he would make a copy of the video he had taken and post it on the Internet. He proposed that he would come to the V's residence that very evening to claim the product of his intimidation. He further stated, "If you don't see me I'll blackmail you and put that shit on the net. You understand me". This conversation was recorded by V. 8Upon receipt of the offender's call the V activated the loudspeaker function on her mobile phone. This enabled the offender's intimidatory remarks to be overheard by two other witnesses who were with her at the time. 9V contacted Police. On 13 May 2011 Police executed a search warrant on the offender's residence. They seized his mobile phone, a USB device and other computer recording paraphernalia. The offender was arrested. He took part in an electronically recorded record of interview. He agreed he had made the video. He declined to answer questions about his constant requests for sex and threat to upload the video if the victim refused to give in to his demands. 10The offender was subsequently charged with a series of offences. Two of the initial charges were subsequently withdrawn following which a plea of guilty was entered to the charge now before the Court. The Plea 11The offender was charged with this offence on 13 May 2011. Initially he entered a plea of not guilty to the charge and to the other charges preferred by Police. A brief of evidence was ordered. When the matter came before Waverley Local Court on 21 July 2011 it was given a hearing date of 10 October 2011 at the Downing Centre Local Court. 12On the day fixed for a one day defended hearing of all three charges the prosecution withdrew two other serious charges. The offender then entered a plea of guilty to this charge. The objective seriousness of the charge and the conduct was such that the proceedings were adjourned to 25 November 2011 for sentence to enable the preparation of a Pre Sentence Report. 13Section 22 of the Crimes (Sentencing Procedure) Act 1999 (the 'Sentencing Act') requires a court in passing sentence to take into account the fact that an offender has pleaded guilty. The court is further required to take into account when such plea was given or indicated and the circumstances in which the plea was indicated. 14The guideline judgment in R v Thomson and Houlton (2000) 49 NSWLR 383 and the more recent decision of R v Borkowski [2009] NSWCCA 102 articulate the approach to be taken by courts in determining the utilitarian value of a plea of guilty. Where there is a utilitarian value in the plea the Court is required to mitigate the otherwise appropriate penalty. The extent of the discount applied will depend on the circumstances. 15In R v Borkowski the Court set out what are described as "principles of general application" in determining the utilitarian value of a plea. On this issue the Court notes it was open to the offender to enter a plea or indicate an intention to do so from the first time the matter came before the Court. It seems clear from the course the proceedings took that such plea was withheld until such time as the prosecution took the step of withdrawing the other two charges. The utilitarian value of a plea entered in such circumstances is dealt with at paragraphs 8 and 9 in Borkowski. The discount is correspondingly affected. I allow a discount in this matter for the utilitarian value of the plea of 17.5%. Subjective Factors 16The offender comes before the Court as a 25 year old man employed within the hospitality industry. He resides at Blacktown with his de facto partner and 4-month-old daughter. The Pre Sentence Report provided to the Court reveals his current partner is unaware of the charge before the Court. It further states, somewhat ironically given the nature of his conduct towards the victim, that the offender "claimed he did not want to cause her unnecessary emotional distress." 17The report discloses a history of abuse of drugs and, prior to meeting his current partner, excessive use of alcohol. He disclosed to Probation and Parole a history of poly substance abuse since the age of 14 and revealed that whilst his alcohol consumption has been significantly reduced, he continues to use prohibited drugs from time to time. To his credit he does not claim that either alcohol or drugs contributed in any way to the commission of this offence. 18The attitude of the offender set out in the probation report acknowledges his conduct represents an abuse of power. He is equivocal on the issue of consent by V to the making of the video but concedes making threats to place the video on the Internet was wrong. 19The Case Manager who prepared the report identified concerns about the offender's propensity to use his power over other individuals for his personal benefit although she hypothesised this incident may have at long last provided the offender with some insight as to the impact his actions have on others. Antecedents 20The historical allusion by the Case Worker relates to the offender's criminal record. He has 3 separate convictions recorded against him 2007. Two of the offences relate to contraventions of an Apprehended Domestic Violence Order. The offender was placed on a Section 9 Bond in relation to each offence. Each of these offences is separated in time in terms of the date of the offending. Additionally the defendant has a conviction for Damage to Property. A further penalty recorded on the offender's record is referable to a breach of one of the Section 9 Bonds imposed for the first of the contravention of an Apprehended Domestic Violence Order offences. 21As a consequence of his criminal history the offender does not come before the Court as a person of prior good character. The effect of his background is not that it aggravates his conduct in the matter before, rather the impact is to significantly negate the mitigating factors available for first offenders as identified in section 21A(3)(e),(f),(g) and (h) of the Sentencing Act. Aggravating factors 22It is clear from the statement of facts and from the Pre Sentence Report that the offender constructed the means of intimidating the victim to submit to his sexual advances because she was otherwise resistant to his ongoing demands. The corollary of this environment is in my view to persuade the Court to the view that the offence is aggravated by the planned nature of the criminal activity. Section 21A(2)(n) operates to aggravate the offending behaviour. Mitigating Factors 23Apart from the plea of guilty it is difficult within the provisions of section 21A(3) to find any other mitigating factors other than a qualified sense of remorse as referred to in section 21A(3)(i) of the Sentencing Act. When I say qualified, I do so in the context that there is little in the offender's approach in this matter that finds favour other than the belated acknowledgment in the pre sentence report that "he could now understand the victim's vulnerability and her concern at the time." I am prepared to take this into account in further mitigating the penalty but not to a substantial degree. The Sentence 24Counsel for the offender submitted that the offender's conduct is at the bottom of the range of objective seriousness for this type of offence. In the discourse between the bench and the bar table counsel seemed surprised that the Court took a very different view. In such circumstances it is necessary to expand on the reasons why the Court takes the view that this offence is towards the upper end of a middle range category of offence. 25Every member of the community, irrespective of his or her prior relationships with other members of society, is entitled to their privacy. Whatever may have been the belated silent acquiescence on the part of the victim to the offender's unilateral and furtive undertaking in videotaping their sexual activities there was no consent to publication of this article to a wider audience. The action taken by V in contacting police establishes this reality. 26It is one thing for the offender to say he had no real intention of publishing the videotape on the Internet. Who would know whether, had it not been for the actions of the victim in summoning the assistance of Police, it might not have occurred? The offender's criminal history suggests he is not always careful to conform to the reasonable expectations of society. It is clear from his conduct he is not a person committed to respecting women or their privacy. 27To use this type of intimidation to constrain the victim into giving in to his demands for sex is the type of conduct all reasonable members of the community would regard as outrageous. The offender should not lose sight of the fact that had the victim been intimidated into giving in to his demand only to complain to police later then it would be open for him to have been charged with sexual intercourse without consent. At the completion of these proceedings the offender at the very least should be given some advice regarding the applicability of section 61HA of the Crimes Act 1900 to a potential prosecution under section 61 l of that Act. Whilst this speculative exercise is not relevant to the determination of the ultimate sentence it is the proper function of a Court to educate those before it as to the potential consequences of their behaviour so that they may re-think their attitude in the future. 28The protective nature of the criminal jurisdiction should not always be confined to the instant of the sentencing exercise. 29It is beyond dispute that whether or not the defendant intended to publish he effectively brought about that reality albeit within a limited range. In seeking the assistance of the police the victim would be well aware that as part of the investigative role of the police it was highly likely that one or more strangers would need to view the video to determine the nature and extent of the offending behaviour. This in itself is a form of humiliation forced on the victim at the instigation of the defendant's intimidating conduct. 30In addition it does not need a great deal of imagination or life experience to understand the potential humiliation and emotional distress the victim would undergo in the period between the threat fixed in time to accommodate his demand for sex by 11pm that night and the seizure of the videotape and other material by police some 2 days later. There is no evidence before me to establish that the emotional harm to the victim was substantial however it cannot be said that it was non-existent. So concerned was she for her privacy and self respect that she sought the intervention of police. To argue in this context that the conduct of the offender places the offending behaviour at the lower end of the range is to misconstrue the reality of his conduct. I reject the submission by counsel on this point. 31The type of conduct undertaken by the offender warrants emphasis on general and particular deterrence - general deterrence by reason of an increasing incidence in the use of the Internet to embarrass or humiliate and the potential audience that such conduct may reach. It is not to the point that the offender did not upload the material. 32It is to the point that he was aware of the potential and used that mechanism as a means of intimidation with a view to securing a level of sexual self indulgence from someone he knew would not willingly provide it without the threat of publication. That he should believe this type of behaviour is neither here nor there is extraordinary. This type of conduct whether it is by the offender or by others within the community with like-minded tendencies should be discouraged and discouraged with firmness. 33Having come to the view regarding the subjective seriousness of the offender's conduct and taking into account the aggravating and mitigating factors the next step in the sentencing exercise is to determine whether the threshold in section 5 of the Sentencing Act has been crossed. Section 5 cautions Courts against imposing sentences of imprisonment unless there is no other appropriate sentence that adequately addresses the purposes of sentencing and the objective seriousness of the offending. In my view in this matter there is no other appropriate alternative. 34The offender has shown scant regard for orders of courts in the past. He has failed to live up to expectations under two Section 9 Bonds imposed because he could not comply with the terms of an Apprehended Domestic Violence Order. This Court can have only a small degree of confidence that he will not re-offend. The time has come for the offender to realise that his ongoing disrespect for the law and the escalating nature of his offending needs to be brought to an end. It is my view this should be done by withdrawing the offender's privilege of remaining free within society in the form of a sentence of imprisonment. 35Having determined the appropriate sentence is one of imprisonment it remains for the Court to decide the manner in which such sentence should be served. Because of the need to strongly emphasise general and particular deterrence I do not accept that any sentence imposed on the offender should be suspended pursuant to section 12 of the Sentencing Act. 36The authority of R v Taylor [2000] NSWCCA 442 at [49] to the effect that "suspended sentences provide very little if anything by way of general deterrence" underscores this approach. Additionally the failure on the part of the offender in the past to keep the terms of a previous bond does not inspire confidence. This conclusion does not necessarily mean other forms of custody are not available. 37Because, and only because the offender failed to carry out his threat to publish the Court is prepared to consider an alternative to full time custody at this time. Considering such an option does not mean it will become the ultimate outcome. The Court retains the discretion to impose a sentence of full time custody. The nature of the offence is such the offender is excluded from consideration for Home Detention. 38The alternate response, one consistent with denunciation, general deterrence and engaging the offender in rehabilitation in relation to his attitude problem and continuing drug-taking activities is to consider an Intensive Corrections Order. If the offender is assessed as unsuitable then the alternative may well be full time custody. As someone who has yet to experience that environment I come to the view it is appropriate the offender be considered for such an alternative. 39These proceedings will be adjourned to enable an assessment to be undertaken. The offender is to provide his personal details and his telephone numbers to the registry before leaving the Court building. The proceedings are adjourned until 3 February 2012 at 9.30am part heard before me. Bail is to continue in its current terms. Judge G Henson Chief Magistrate of the Local Court 16 December 2011 Further Remarks on Sentence - 23 March 2012 40Sentencing of the offender is before the Court today following an earlier order that the offender be assessed as to his suitability to be sentenced to a term of imprisonment to be served by way of an Intensive Corrections Order. Having already determined the nature of the offending warranted condign punishment, the Court, as indicated in earlier remarks, formed the view there were issues within the offender's previous history of offending and personal circumstances that warrant an outcome consistent with emphasising rehabilitation in addition to general deterrence. It is the view of the Court that the offender's previous history of abuse of alcohol and prohibited drugs is a significant contributor to his anti social mindset and unwillingness to learn from previous sentences with inbuilt leniency and expectation for reform built into them. 41During the period of remand the offender has been assessed as suitable for an Intensive Corrections Order. Mindful of the views expressed by the Court in R v Boughen, R v Cameron [2012] NSWCCA 17 at [108]-[111] the Court is prepared to exercise its discretion to impose the pre-determined necessity for a prison sentence in this fashion. 42Having regard to my remarks on the previous occasion the appropriate sentence for this offence is a sentence of 9 months imprisonment. Allowing for a discount of 17.5% for the utilitarian value of the late plea the offender is convicted and sentenced to imprisonment for 7 months and 12 days. Such sentence is to be served by way of an Intensive Corrections Order. Within the period of Intensive Correction the offender is to be subject to involvement in Drug and Alcohol rehabilitation programmes. 43The sentence is to commence within 21 days. Judge G Henson Chief Magistrate of the Local Court 23 March 2012 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 March 2012