03 Nov SAME CRIME: DIFFERENT TIME

Recently two men were convicted of “revenge porn” offences. One man was imprisoned for 6 ½ years, while the other man did not go to jail at all. How can two offenders, convicted of the same crime, receive such different penalties?

Firstly, despite being reported in the media as “revenge porn” crimes, the two men were actually convicted of different offences. Secondly, sentencing takes into account several factors including the not only the crime itself but also the offender’s circumstances before, during and after the offending.

The case of SD

In the first case, SD was convicted of two counts of unlawful sexual intercourse and one count of disseminating child exploitation material. The maximum penalty was 10 years imprisonment.

At the time of the offending SD was 18 and the victim was 14. They had been in a relationship, during which they had sent naked photos to each other. As the relationship started breaking down, SD threatened to send naked photos to her friends and family unless she sent him further explicit photographs. He also threatened violence against her family. SD did send photos to her family, including her parents.

SD pleaded guilty to the offences. The Judge sentenced him to 4 years imprisonment for all offences. However, with a legislated reduction in penalty depending on the timing of the plea SD’s sentence was reduced by 30%. The court also took into account that he had spent some time in custody when he was first arrested. His actual sentence was just over two years and nine months imprisonment, with a non-parole period of 18 months.

Once a Court has decided that the offences warrant imprisonment, the Judge then has discretion to suspend imprisonment if “good reason” exists to do so. In this case, the Judge decided that SD’s lack of insight into his offending and the fact that he blamed his victim for his crime meant that there was not “good reason” to suspend the sentence.

If suspension is not warranted, the Judge then looks at whether the Home Detention is appropriate. The paramount consideration for suitability for Home Detention is “the safety of the community”. The Judge ultimately decided that SD should serve his sentence on Home Detention.

The case of MM

In the same week, MM was jailed for over 6 years, also, according to the media, for “revenge porn”. However, he was in fact convicted of more serious offences than SD. MM pleaded guilty to blackmail and several counts of distributing invasive images. Blackmail carries a maximum term of 15 years imprisonment, with the images offences carrying a maximum of 2 years per offence.

The victim was MM’s ex partner. At the time of the offences he had just been released on parole for other violent offences. When he was still in jail on those offences, his partner ended the relationship. MM refused to accept the relationship was over and he demanded the return of gifts and some money he had given to her. Months later he sent a letter again demanding return of property and payment of $1500 under threat that he would report her for Centrelink fraud. He threatened to distribute sexual images of her, telling her that there was an “easy way” and a “hard way”.

The distribution of images occurred over a period of a few months on several different occasions. The blackmail charge stemmed from a message he sent to the victim’s mother demanding money and return of gifts and threatening to distribute images if he was not paid. He then sent explicit photos and videos to the victim’s mother.

The Court found that the offending was deliberate, sustained and designed to humiliate the victim, carrying out a threat he had made to her several months earlier. The Court found that the offending so soon after being released on parole made the offending much more serious, because it showed that he had not learned anything from his time in prison. The Judge gave separate penalties for each offence. While there is an option to combine penalties so that imprisonment is served concurrently, the Judge did not do so. He ordered that each term of imprisonment be served consecutively. MM also received a 30% discount for his early plea.

In addition to the penalties for the offences, MM had breached his parole conditions so his parole was cancelled and he was ordered to serve the balance of his parole period, on top of the sentences for these crimes. The total time of imprisonment was over 6 years, with a non-parole period of 3 years and six months. The offending was so serious that there were no grounds to suspend the sentence and, given that these offences were committed while he was on parole for other offences, Home Detention was not a consideration.

Analysis

One of the reasons there is a perception that there is a big disparity in sentencing is because the media oversimplifies offending. In the above cases, the men were charged with different offences, with different penalties. Another reason is that there is a belief that a suspended sentence or home detention means that the defendant “gets off scott free”, that’s not the case either. A suspended sentence hangs over a defendant’s head for the period of suspension; if the defendant commits further offences they can be ordered to serve the term of imprisonment.

Finally, the judge looks at all the circumstances. It would clearly be an injustice if the two defendants received exactly the same penalty; one had no criminal history, an intellectual disability and a commitment to rehabilitation; the other had a history of offending, the crimes were far more serious given they occurred over a prolonged period of time and had shown by his actions that his previous promises of rehabilitation to the Court could not be believed.

Filed Under: Criminal Law, News