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Judgment handed down in Aitkin v The Queen

08 May 2017

The Court of Appeal (Justice Weinberg and Justice Kyrou) today allowed an appeal against a sentence of 5 years’ imprisonment for the offence of blackmail on the bases that the sentencing judge impermissibly relied on matters that were external to the charged conduct, or were not supported by the evidence, and that the sentence was manifestly excessive. 

The conduct constituting the blackmail occurred over a 2 month period during which the appellant made numerous demands to the 17 year old female complainant, whom he had known since her birth, that she telephone him to discuss the end of their friendship and that she repay an amount of $310. He threatened that if she failed to comply, he would kill her and/or publish revealing photographs of her on social media and send them to her friends and family. 

The appellant, who was 48 years of age at the time of the offending, pleaded guilty to the charge of blackmail and a further charge of breaching a personal safety intervention order which was made to protect the complainant. 

The appellant was sentenced to 5 years’ imprisonment for the blackmail offence and 6 months’ imprisonment for the breach of the personal safety intervention order, making the total effective sentence 5 years and 6 months’ imprisonment. A non-parole period of 3 years and 6 months was fixed. 

The Court of Appeal found that the sentencing judge took into account extraneous considerations and relied on matters that were not supported by the evidence for reasons which included the following: 

  • As the prosecution specifically disavowed any suggestion that the appellant had a sexual interest in the complainant, it was inappropriate for the judge to have focused to the degree that she did in her sentencing remarks upon the sexual nature of his dealings with the complainant.
  • As there was no evidence before the judge that there was a risk that the appellant might commit any sexual offences against children, she was not entitled to sentence him on the basis that such a risk existed.

The Court of Appeal found that the sentence of 5 years for the blackmail offence was manifestly excessive because the judge failed to give adequate weight to the mitigating circumstances upon which the appellant relied and also because the sentence, to a significant degree, did not accord with current sentencing practices in Victoria for the offence of blackmail. 

The Court of Appeal resentenced the appellant to a total effective sentence of 4 years’ imprisonment and fixed a non-parole period of 2 years and 9 months.

Read the Court's full judgment on Austlii (External link)

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