CRIMINAL LAW - Sentence - Total effective sentence of 8 years 9 months' imprisonment - Non-parole period of 5 years and 6 months - Whether sentence imposed was manifestly excessive - Appeal dismissed

1 I have had the benefit of reading in draft the judgments of Priest and Coghlan JJA. I am in agreement with both.

2 It has been to my considerable advantage to have read in draft the reasons of Coghlan JA. Substantially for the reasons his Honour gives, I agree that the appeals against conviction and against sentence should be dismissed. I wish only to add a few observations of my own concerning the second ground of appeal against conviction relevant to the first trial.

No substantial miscarriage of justice from absence of a propensity warning

3 On the first trial, the appellant was convicted of stalking and blackmail involving John Silcot (charges 1 and 2); stalking and blackmail against Estelle Kingshott (charges 3 and 4); and stalking with respect to Marcus Venier (charge 5).

4 Ground 2 complains that the prosecution was permitted, over objection, to lead evidence of the appellant's prior criminal history 'without direction as to the use that could and could not be made of it', and thus for the jury to reason impermissibly on the basis of the appellant's 'criminal proclivities'.

5 Silcot and Kingshott had been prosecution witnesses against the appellant with respect to a prosecution for insurance fraud. The appellant pleaded guilty in June 2003 and was imprisoned for four and a half years (4½) with a non-parole period of three (3) years. Feeling aggrieved by their part in his imprisonment, upon his release from gaol the appellant enlisted the help of his son, Stephan Cooper, to blackmail Silcot and Kingshott. Stephan Cooper gave evidence for the prosecution at trial that the appellant instructed him to recover $100,000 for each year that the

appellant had spent in custody as a result of the actions of Silcot and Kingshott. The appellant's stated intention was to stalk Kingshott's son, Marcus Venier, in order to exert pressure on Kingshott.

6 Plainly the appellant's motive - revenge - was central to the prosecution case. Hence the fact of the appellant's prosecution for insurance fraud, and his subsequent imprisonment, had significant probative value.

7 The appellant claims that the evidence of his conviction and imprisonment in 2003 should have been excluded by the trial judge pursuant to s 137 of the Evidence Act 2008, which replicates in statutory form the well-known Christie[1] discretion.[2] Section 137 provides that the court must refuse to admit evidence adduced by the prosecution 'if its probative value is outweighed by the danger of unfair prejudice to the accused'.

8 As I have said, the evidence had significant probative value. There was a danger of prejudice to the appellant, but it was not 'unfair'. But even if regarded as unfair, the prejudice did not outweigh the probative value of the evidence. The prosecution case would largely have been emasculated by its exclusion.

9 However, that is not the end of the matter. Once the evidence of the appellant's earlier prosecution and imprisonment for insurance fraud legitimately was admitted to demonstrate motive, it was incumbent on the trial judge - by adequate directions to the jury - to ensure proper use of the evidence, and to guard against its misuse.

10 While the trial judge was part way through his Charge, defence counsel made the following submission:[3]

What I would like you to say is that: 'You have heard evidence, members of the jury, of Mr Cooper's prior criminal conviction for insurance fraud. The only purpose for which that is to be led, members of the jury,' I'm trying to phrase it, 'is for the purpose of showing that the demand was unwarranted, and no other.' And if you wanted to go on and say, 'You cannot infer from the fact that he has a criminal conviction that he is the type of person who would do this sort of criminal activity.' Its a very truncated coincidence and tendency direction, Your Honour, but I thought about leaving it alone, but I don't think I can ... but again, I'd like you to remind the jury that they can't use it to infer that he's the kind of person who engages in this criminal activity.

11 It is tolerably clear from this passage, in my view, that defence counsel sought a propensity direction. It is also tolerably clear that counsel did not press for a propensity direction, by way of exception to the Charge, when the trial judge failed to give one.

12 Almost immediately following counsel's submission, the trial judge directed the jury:

You have heard evidence that Mr Cooper pleaded guilty to criminal charges, for which he was sentenced a term of imprisonment. The relevance of that evidence is simply that it is part of the context or the circumstances of this particular case. It is part of the setting. In other words, if you heard Mr Silcot and Ms Kingshott's evidence in isolation, without knowledge about the prior conviction of Mr Cooper, it just does not sit happily in context and that is why it is led. That is the only reason why it is led_. It is not led for any other purpose but to provide context._

13 In my opinion this direction was, in the circumstances, inadequate. A direction was required, with the authority of the judge's office behind it, that the jury should not reason from the appellant's conviction for insurance fraud that he was the kind of person likely to have committed the charged offences.[4] But in my opinion, notwithstanding the failure to give such a direction, there has been no substantial miscarriage of justice.[5]

14 Defence counsel, having raised the possibility of a propensity warning, did not take exception to the direction that the conviction on prior charges could only be used as 'context'. Presumably, imbued as he would have been with the atmosphere

of the trial, had he thought that a propensity warning was needed to protect his client's interests, he would have taken a further exception.[6] As McGarvie J said in Garth:[7] 'Counsel should politely but firmly insist on an exception until the judge redirects or states that no redirection will be given'. Further, as Coghlan JA points out, counsel may well have thought that a more elaborate direction might have drawn more attention to the subject than was desirable.[8]

15 Moreover, in my opinion, conviction was inevitable.[9] There was no real basis for the jury not accepting the core features of appellant's son's evidence, particularly when no contradictory evidence was forthcoming from the appellant.

16 The appellant was convicted after two trials for counts of blackmail and stalking.

17 He had originally been charged on one presentment with five counts of stalking and four counts of blackmail. The learned trial judge ordered severance of the presentment on 2 March 2011. On 2 May and 9 December 2011 respectively the appellant was found guilty of counts on each presentment. On 23 February 2012 he was sentenced as set out in the table below.

18 The appellant was given leave to appeal against both conviction and sentence from each trial on 31 October 2012. At the hearing of the appeal, all but grounds 2 and 4 relating to the first trial, ground 3 relating to the second trial and the sentence appeal, were abandoned. Thus the grounds of appeal were were:

First trial:

Ground 2: Over objection, the prosecution was permitted to lead evidence of the applicant's prior criminal history without direction as to the use that could and could not be made of it. It was open, therefore, to the jury to reason impermissibly that the applicant was guilty on the basis that he had criminal proclivities.

Ground 4: Over objection, evidence of post conduct offending was admitted. This evidence should have been excluded as its probative value was outweighed by its prejudicial effect. The trial judge was in error in admitting this evidence.

Second trial:

Ground 3: Over objection, evidence of post-conduct offending was admitted. This evidence should have been excluded because its probative value was outweighed by its prejudicial effect.

Sentence:

Ground 1: The sentence was manifestly excessive in the light of the sentencing judge's failure to:

• Have regard to the totality principle;
• Give sufficient weight to the applicant's age, estrangement from his family and disabilities;
• Give sufficient weight to the undue delay in the complainants, Yee Sek Chan and Yee Kar Chan, bringing their complaints and the prosecution bringing the proceedings to court.
• Have regard to the fact that the neither Silcot or Kingshott paid the applicant any money in response to the unwarranted demands.

19 In June 2003 the appellant had pleaded guilty to what has generally been described as insurance fraud and sentenced to four and a half years imprisonment with a nonparole period of three years.

20 Two of the principal witnesses against him in that investigation had been John Silcot and Estelle Kingshott. It was the Crown case that after his release from prison in 2007 the appellant recruited his 17 year old son Stephan to assist him in blackmailing Silcot and Kingshott. Stephan Cooper was given an indemnity by the Director of Public Prosecutions and he gave evidence that his father had instructed him to 'recover' $400,000 from Silcot and Kingshott being, $100,000 plus interest for each year the appellant had spent in prison. He said he was to receive $30,000. The defence case, in short, was that Stephan Cooper had acted alone. Although it was put to the complainant, Silcot, that the appellant had loaned the money to buy real estate, that suggestion was denied. The general plan according to Stephan Cooper was that both Silcot and Kingshott were to be threatened. There was a specific threat made to Silcot that unless he paid the money then material embarrassing to him would be released. The prosecutor did not rely upon a further allegation from Stephan Cooper that he was to put further pressure upon Kingshott by stalking her son Marcus Venier.

21 Counts 1 and 2 on the presentment related to the stalking and blackmail of John Silcot.

22 On 19 May 2006 Silcot received a blank Australian will kit by mail. He reported that to the police. In August 2007 he received a phone call from a man who said that his name was Fitzgerald and that he was the appellant's lawyer. In the call a demand was made for $400,000 to be paid within 14 days. He was told that if he did not do so then embarrassing material would be released; and when he said he would not pay the money he was told that he would be destroyed and the triads would be involved. Silcot reported that matter to the police.

23 A short time later he received a further threat in which he was told that Mr Cooper was 'going to get you'. He again rang the police but at about 2.00 pm police attended at his business premises in answer to a 000 call which had not been made by Silcot. Later that afternoon he received a further telephone call in which a person who purported to be Fitzgerald's junior named 'James' said he was to negotiate the $400,000 figure but Silcot said he would not be negotiating. He was told that the payment details would be sent to him.

24 The next day Silcot received by an Australia Post courier a lot of documentation which purported to be about him and which was arguably embarrassing to him. Stephan Cooper said he arranged for delivery of those documents and CCTV footage from the post office showed him doing so in the presence of the appellant.

25 On 17, 18 and 19 August 2007 Silcot received threatening SMS messages which Stephan Cooper said he had sent on the appellant's instructions.

26 Silcot received further offensive material on 20 August and 'James' rang him to see if he had received the material and asked if he was going to pay. He was given until 29 August to pay with the threat that the material would be released to others if he did not.

27 Between 23 August 2007 and 11 September 2007 a large number of SMS messages were sent by either Stephan Cooper or the appellant to Silcot to reinforce the demand. Further correspondence of an intimidating nature had been received by Silcot on 20 and 27 August and 3 September 2007.

28 It was that conduct in its totality which constituted count 1 ― stalking Silcot.

29 The blackmail was constituted by the material which contained unwarranted demands. It followed that all the material which constituted the blackmail was also part of the stalking but not vice versa.

30 It was that fact which led the prosecution to not seek to have a conviction recorded on the stalking counts relating to Silcot and similarly in relation to Kingshott.

31 Silcot also gave evidence that on 13 April 2011, shortly before the trial was listed, he received a telephone call from a person who introduced himself as 'Paul Dale' and who said he was speaking on behalf of Roy Cooper. The caller said that Silcot was responsible for the appellant going to gaol last time and that he 'better be careful this time, otherwise Roy Cooper is going to get you'.

32 The next counts (3 and 4) related to the stalking and blackmail of Kingshott.

33 On 15 August 2007 she received a telephone call in which a demand was made for $180,000 which the caller said was owed to Roy. She was told that if she did not pay 'we'll get you'. The call was made by Stephan Cooper using the appellant's mobile phone in the appellant's presence.

34 The next day she found an envelope on her front porch which was addressed to her which contained bank account details for a Mr Mauai Lai. According to Stephan Cooper he had left the letter there after making the telephone call referred to above.

35 On 27 August she received another envelope this time through the mail. The letter said she was to pay the $180,000 by 29 August 2007 and if not 'it's your turn to be fucked'.

36 Stephan Cooper said he wrote and sent the letter after he had copied the contents from a notepad which had been written by the appellant. Those acts constituted the count of blackmail (count 4).

37 Between 31 August 2007 and 11 September 2007, Ms Kingshott received a number of telephone calls where the caller hung up immediately after she answered the phone.

38 That whole course of conduct constituted the count of stalking (count 3).

39 Count 5 related to the stalking of Marcus Venier, the son of Ms Kingshott. On 17 August 2007 he received an SMS message on his mobile phone which said 'I(sic) Marcus. 12 days to pay. If don't, your turn to be fucked'. Mr Venier also received a series of threatening SMS messages between 18 August until 8 September 2007. Stephan Cooper said that he had sent all the messages but the content had been drafted by the appellant. Venier received 'hang up' telephone calls on 19, 25 and 31 August.

40 In this trial, it was the prosecution case that the appellant had stalked the brothers Yee Sek Chan and Yee Kar Chan, and Mark Wilkins who was the immediate supervisor of Yee Sek Chan at Hewlett Packard.

41 The stalking of Mr Wilkins (count 1) was alleged to have taken place between 15 July 2000 and 3 August 2000.

42 The stalking of Yee Sek Chan ('Sek') was alleged to have taken place between 14 August 2000 and 11 August 2007 and the stalking of Yee Kar Chan ('Kar') was alleged to have been between 1 January 2002 and 30 August 2007.

43 In relation to count 1 the wife of Mr Wilkins gave evidence that in July 2000 she received two telephone calls at work in which an unknown female caller told her that her husband was having an affair. Her husband denied the allegation. Not long after that there was a 'letter box drop' in the Wilkins' neighbourhood in which Mr Wilkins was accused of being a paedophile. The appellant was acquitted on count 1 but the circumstances are related to counts 2 and 3.

44 Sek gave evidence that he met the appellant through the Buddhist Temple in Box Hill in about 1997 and they became friends. In 1999-2000 Sek was working at Hewlett Packard. The company were engaged in a restructure at that time and Sek's position was divided into two jobs, one more senior than the other. Wilkins told Sek that he, being Wilkins, did not regard Sek as being suitable for the more senior position. The appellant assisted him in preparing a presentation for that position but before he had a chance to deliver it he was told a week later by Wilkins that he had in fact gotten the senior role.

45 Sek contacted the appellant who seemed happy with that result. He asked the appellant whether he had anything to do with it because he was worried about his position and the appellant said they could not prove anything. Sek was later confronted by Wilkins about both the telephone calls and the pamphlets and denied any involvement but said it might have been a private detective. He had the appellant in mind when saying this. He told the appellant what had happened and told him that the matter was being investigated. The appellant was angry about it. He later arranged a meeting with a friend of his, Gary Edwards, who was a police officer. At the meeting Edwards said Sek appeared scared and the appellant was agitated. Sek said he was threatened by the appellant at that meeting.

46 Sek told the appellant he was to be interviewed by security about the matter and the appellant told him not to go to the meeting. Sek was expected to reveal the identity of the person who he had told Wilkins about. He did go to the meeting but refused to identify the person because he said he was afraid to do so. He resigned from his position.

47 About a week later the appellant telephoned him and said that Sek owed him $200,000 which he refused to pay saying that he had not asked the appellant to do anything for him.

48 Seven weeks later he was visited by a girlfriend of the appellant who said the appellant had spent a lot of money helping him and then a few weeks later he received a telephone call from a different woman who refused to identify herself and claimed that he owed the appellant money.

49 Over the next two years he received letters on an irregular basis demanding payment of $200,000. He received photocopies of calendars with 8 September 1998 highlighted on it which was the day that his son had committed suicide. He was able to produce a letter dated 10 August 2007 purportedly authorised by a Master Hew who was purporting to act on behalf of the appellant to enter into negotiations about repayment of the money. He said the appellant was running out of patience.

50 In March 2011 he said he received a call on his mobile from a person, who was not the appellant, who said they were from the Advocacy Centre. He was told that he was not obliged to give evidence and if he did then personal details about him would be brought up.

51 Count 3 in the second trial related to Yee Kar Chan, the brother of Yee Sek Chan. Kar is an urologist. He met the appellant in 1998. When he was in England he received a telephone call from his brother in which he was told that the appellant was demanding $250,000 from him for a favour. In about 2003 he then received a Christmas card signed by the appellant in an envelope marked 'David Roberts aka Roy Cooper'. Later an envelope was placed in his letter box which enclosed both a 1998 calendar with the date 8 September being circled along with a note referring to his nephew's death. It also contained a suggestion that he change the registration number of his car and a note saying 'Very nice house you have got?' with a picture of his house which was then under construction.

52 On 19 August 2007 he reported the matter to the police. On 20 August 2007 he received a call from a person who identified himself as 'James' asking to meet to settle the matter but Kar repeated that he owed no money and there was nothing to discuss.

53 On 22 August at his consulting rooms, Kar received a call from the appellant saying that he had waited a long time for his money. Later that day a white envelope was delivered to Kar's home which contained a transcript of a purported conversation between the appellant and 'Jodie' (a psychic). On that day he also received a letter demanding payment of $350,000 by 5 September 2007.

54 On 20 April 2011 he received a telephone call from a man who was not the appellant who said that bad things could happen if he proceeded to appear in court in the case against Roy Cooper. He did not catch the name of the caller but thought it could be a Mr Turner.

55 At the trial Stephan Cooper gave evidence that the appellant had told him that he wanted to get money back from the Chans. He was told that the appellant had done general landscaping and renovations works at Sek's house thereby improving its value. He was told that the amount owed was 'a few hundred thousand.' The appellant said that if Sek did not pay he would seek the money from his brother Kar by threats including trying to ruin his reputation as a surgeon. At the request of the appellant, Stephan had dropped off packages at the houses of both of the Chans.

56 He also gave evidence that some 20 or 30 years ago the appellant threatened a police officer with a sawn off shot gun at a McDonalds.

57 The basic allegations put to Stephan in cross-examination were that he had been promised $100,000 by the appellant if he recovered $250,000 from the Chans and that what was done thereafter was on his own account and not at the behest of the appellant. He also denied that he had been given a phone to use by the appellant which was in the name of John Collins. He said that all of the material put into the letter boxes had been provided by the appellant who drove him to the houses of the Chans.

58 When the appellant's home was searched by the police they found details of Muai Lai's bank account, a 1998 calendar, Sek's business card, transcript of a conversation between the appellant and a psychic, photographs of Sek and documents in the name of David Roberts.

59 When arrested the appellant gave a no comment record of interview and did not give evidence at the trial.

Ground 2: Over objection, the prosecution was permitted to lead evidence of the [appellant]'s prior criminal history without direction as to the use that could and could not be made of it. It was open, therefore, to the jury to reason impermissibly that the [appellant] was guilty on the basis that he had criminal proclivities.

60 It is submitted on behalf of the appellant that the evidence of his prior criminal history should not have been admitted because its prejudicial effect exceeded its probative value.[10] It was submitted that this discretion was very much enlivened as the impugned evidence went only to the question of motive which was not something that the prosecution was required to prove as part of its case.

61 In the alternative it was argued that his Honour had failed to give any proper directions to the jury as to how the evidence could be used and that it was imperative that his Honour give an anti-propensity direction.

62 At the time of the preparation of the written argument the transcript of the pre-trial discussion was not available. It was available by the time of the appeal. It was argued on behalf of the appellant that the evidence should have been excluded. It seems, however, that at the end of the pre-trial argument the matter was left open to see if the parties could agree as to how the matter was to be handled at the trial.

63 When the trial came on for hearing the subject was not taken up with his Honour and the evidence touching the prior convictions was led from the witnesses Silcot and Kingshott. Senior Sergeant Armstrong gave evidence of the involvement of Silcot and Kingshott in the 2003 prosecution. It was not objected to and was lead in a way that seemed to indicate that some agreement had been reached about the admission of the evidence.

64 In any event it was argued on the appeal that the evidence should not have been admitted and the admission of it led to a miscarriage of justice.

65 It is difficult to see how the admissibility is now challenged. Since objection was originally taken to the evidence I will deal with the question.

66 The point having been taken it is for this court to decide for itself the question of admissibility[11] and it is not a matter to be determined in accordance with the principles decided in House v The King.[12]

67 In this case the prosecution alleged that the appellant had attempted to extort money from the complainants in recompense for the time he had spent in custody as a result of an insurance fraud to which he had pleaded guilty.

68 The prosecution case was dependent upon the evidence of Stephan Cooper, Silcot and Kingshott. Stephan Cooper said in evidence he had been told by the appellant in about August 2007 that he wanted to recover $100,000 per annum plus interest from the complainants, Silcot and Kingshott. On the evidence of the complainants demands had been made for $400,000 and $180,000 respectively. Silcot said he was told that the money being sought was more recompense for the time the appellant had spent in prison. Just who made the calls to Silcot was never satisfactorily resolved at the trial. In relation to the demands made on Kingshott it was said to be from 'Roy from prison'. Stephan Cooper said that he made the call from the appellant's mobile phone in his presence. If the evidence was excluded the prosecution case would have been truncated because Stephan Cooper's evidence could only then have been led to establish that he was instructed to recover funds from both of the complainants without any reason being stated as to why that was so. It would leave open the question as to whether any demand was for a legitimate purpose and in that sense did go further than the question of motive. The evidence of Silcot, in particular, would have been almost meaningless in the absence of the reasons of the demand.

69 Due to the absence of the ruling no detailed written submissions were made on behalf of the respondent but it was argued that the material was admissible and that the prejudicial effect did not outweigh the probative value of the evidence, it being on the appellant to show that it did.

70 I am satisfied that it was appropriate to admit the evidence.

71 The only suggestion put to the complainants in cross-examination was that the appellant had loaned the money to Silcot and Kingshott to purchase real estate. Those allegations were denied and there was little documentary evidence to support that proposition. Indeed Silcot was able to provide documentary evidence supporting the proposition that he did not need money at the time the loan was said to have been made. In the demands as they were described by the complainants and Stephan Cooper, no mention was even made of any loan. That was only to be explained, on the defence case, by saying that Stephan Cooper was on a frolic of his own. Why he would have invented this basis of making the demands if he was merely collecting loans was never explained. Stephan Cooper was about 17 at the time of the events which give rise to the trial.

72 In the circumstances it was appropriate for the jury to be told of the reason why Stephan Cooper said it was that the appellant claimed to be entitled to funds and that the factual basis of it was accurate ie he had been in prison for three years and that the complainants had made statements which gave rise to the police investigation and ultimately his incarceration. In cases such as this, the context is particularly important. The complainants obviously thought that the reason the demands were being made was as a result of the statements they had made. That their evidence could be restricted by the necessity to remain silent on the history between themselves and the complainant would have been extremely and unfairly restrictive.

73 The next matter for consideration was the instruction given to the jury about use of the evidence. A relatively brief submission was made to the trial judge in which a direction was sought to the effect that the evidence was only led to show that the demand was unwarranted and that the appellant was not, as a result of his prior convictions, a person of the kind who would commit such offences.[13]

74 His Honour charged the jury in this way:[14]

The next topic I need to deal with is that of Mr Cooper. You have heard evidence that Mr Cooper pleaded guilty to criminal counts, for which he was sentenced a term of imprisonment. The relevance of that evidence is simply that it is part of the context or the circumstances of this particular case. It is part of the setting. In other words, if you heard Mr Silcot and Ms Kingshott's evidence in isolation, without knowledge about the prior conviction of Mr Cooper, it just does not sit happily in context and that is why it is led. That is the only reason why it is led. It is not led for any other purpose but to provide context.

75 It is submitted on behalf of the appellant that a more elaborate charge was needed. In particular an anti-propensity direction should have been given.

76 On behalf of the respondent it was submitted that the direction was clear and the jury would have properly understood what his Honour was directing them, that is, that the only relevant use of the evidence was for context. No exception was taken to the direction or more particularly the adequacy of it, although in argument counsel for the appellant had sought a more detailed direction.

77 I am satisfied that the direction was adequate in all the circumstances. This was a case where a more elaborate direction might well have drawn more attention to the subject than that which it deserved.

Ground 4: Over objection, evidence of post conduct offending was admitted. This evidence should have been excluded as its probative value was outweighed by its prejudicial effect. The trial judge was in error in admitting this evidence.

78 The post offence conduct referred to was the telephone calls which were the calls said to have been received by Silcot on 19 April 2011 when a person other than the appellant, identifying himself as 'Paul Dale' who, in purporting to act on behalf of the appellant, threatened the complainant.

79 In oral argument the principal submission was that the evidence should have been excluded because there was insufficient evidence to link the appellant with the call.

80 His Honour gave a careful and detailed ruling in which he found that the probative value of the evidence was such that there was little risk of unfair prejudice particularly since he would give a direction about it. Without saying so in terms, his Honour intended to give a direction in accordance with Edwards v The Queen[15] and he did give that direction.

81 It has been accepted in this State that to the extent that R v Shamouil[16] is authority for the proposition that, if questions of admissibility are to be considered without reference to reliability, then it should not be followed.[17] As set out above, it is also clear in this State that the test to be applied when considering a question of admissibility on appeal is for the Court of Appeal to assess the admissibility for itself based on the whole of the material.

82 The question arising under Dupas as to reliability was not an issue in this case. When dealing with the evidence referable to ground 4 (and for that matter ground 2) there was no argument addressed as to the reliability of it. In so far as his Honour did act in accordance with the principles in Shamouil he was in error. It was not an error of any significance in this case.

83 When reviewing the evidence in the case, the court must decide 'if its probative value is outweighed by the danger of unfair prejudice to the accused',[18] and if so, the court must exclude the evidence.

84 In relation to the telephone calls, the first question to be decided was whether or not there was sufficient evidence for a jury to conclude that the appellant was the person responsible for the call. It was a question of what reasonable inferences the jury could draw from the whole of the material. The call was made to Silcot on a date proximate to the trial. The caller purported to be acting on behalf of the appellant. The appellant was the person who would gain if Silcot did not give evidence or gave a 'watered down' version of his evidence. The context of the telephone call was to do with the trial and the role that Silcot had played in the prior police investigation.

85 Although there was no evidence that the appellant had Silcot's mobile phone number, Stephan Cooper had given evidence of the ease with which such a number might be obtained. Whoever made the call knew that Silcot was going to give evidence of allegations of being blackmailed and that those allegations were connected to the appellant's earlier gaol sentence.

Now, there is an important direction of law that I need to give to you about the telephone call that Mr Silcot said that he received on 19 April 2011. This is because Mr Lewis, in his final address, put to you that you may infer from that telephone call, notwithstanding that Mr Silcot said it was not Roy Cooper's voice, the following. He said you can infer that the call was made at Roy Cooper's direction.

Secondly, you could infer that the only person who would be advantaged by the call would be Roy Cooper, in that John Silcot may be intimidated.

Thirdly, the caller knew that Silcot had put Roy Cooper in gaol before.

Fourthly, that these proceedings were at a stage when the trial was imminent and the trial was scheduled just over a week later and you will recall you were empanelled on 29 April, some 12 days after the call was made. Five, the caller said he was calling on behalf of Roy Cooper and the caller said, "Be careful, otherwise Roy Cooper will get you," and then the caller said, "Job's done." Those were seven facts, which, Mr Lewis asserted to you, meant that Mr Roy Cooper was the person, although he did not make the call, was the person who instigated the call.

Then Mr Lewis said it followed, if you accept those propositions, firstly it is the only reasonable inference to conclude that Roy Cooper is the person who made the call or caused the call to be made, and two, that Cooper knew that if John Silcot gave truthful evidence, Roy Cooper would be implicated in these offences, and three, it was not the act of an innocent man and is only consistent with Roy Cooper's implication in the crimes alleged.

If you accept these propositions, and you will remember my direction about drawing of inferences, which I gave to you yesterday, the prosecution contend that it is a fact, a further strand of evidence, to assist you in determining the guilt of Mr Cooper insofar as Charges 1 and 2 are concerned, being those involving Mr Silcot, but not the 3 and 4, relating to Estelle Kingshott or her son Marcus Venier. Mr Hands submitted that Mr Roy Cooper did not make the call because he did not have the mobile number of John Silcot. Silcot had obtained the number some two years earlier and said he had given it to Estelle Kingshott and Trevor Power.

I now need to give you some directions about the way in which you can use this evidence. Evidence of acts performed after a crime has been committed are capable of being used as an unspoken or an implied admission by the accused person that they are responsible for a particular crime. You may be able to use an act in this way if you can reason that (1) The accused caused the caller to make the call and directed him to state in substance what the caller said to John Silcot after the crime was committed, and secondly, the only reasonable explanation for the accused doing those acts was that he believed that he had committed the crime - as I say, Counts 1 and 2 - and he believed that unless he acted in that way he would be implicated in that crime, and thirdly, so by causing the call that he made and directing the substance of it, the accused has admitted his responsibility for the crime.

87 The learned trial judge gave a careful Edwards direction on post offence conduct. The only post offence conduct was the telephone call. As can be seen above that direction was predicated upon the jury being satisfied beyond reasonable doubt that the call had been made at the request of the appellant.

88 In the circumstances I am satisfied, having given particular consideration to the direction outlined above, that the probative value of the evidence was not 'outweighed by the unfair prejudice' to the appellant. This ground is therefore not made out.

Ground 3: Over objection, evidence of post-conduct offending was admitted. This evidence should have been excluded because its probative value was outweighed by its prejudicial effect.

89 The sole ground pursued on this appeal was the admission of post offence conduct. In the second trial objection was taken to the prosecution leading in evidence the two telephone calls set out in the summary of the facts being one made to Sek on 11 March 2011 and the other to Kar on 20 April 2011. Neither brother was able to say with any certainty the name the caller gave. In both calls reference was made to them appearing in court in the case against Roy Cooper and a specific threat was made to Sek about personal details being brought up in the case.

90 His Honour delivered a detailed ruling in which he decided to admit the evidence. His reasoning was very similar to that in the first trial, many of the issues being very similar if not exactly the same.

91 Although not really set out in the ground or in the written argument both the admission of the evidence and the adequacy of the direction were challenged. No exception was taken to the direction.

92 In the ruling on this issue his Honour did exclude the evidence of two other Crown witnesses because the probative value of their evidence was slight.

93 His Honour regarded the probative value of the evidence of each of the brothers as being high and that it was not to be excluded by the prospect of unfair prejudice to the appellant. Again, his Honour accepted the admissibility of the evidence was predicated on the jury being satisfied beyond reasonable doubt that the calls were made at the behest of the accused.

That being the case, I must give you these directions of law about these two phone calls that were made in March of this year to the two brothers Chan. You may be able to use these calls in the way in which the prosecutor Mr Lewis suggests, to reason that the accused was the caller or caused the calls to be made to Yee Sek Chan and Yee Kar Chan. Second, you must be satisfied the only reasonable explanation of the accused causing those calls or making those calls was that he, the accused, believed that he had committed the crimes of stalking in both Charges 2 and 3 and he believed that unless he acted in that way or caused those calls to be made, he would be implicated in that crime.

Thirdly, so by causing the call to be made and directing the substance of it, the accused has admitted his responsibility for the crime. You will remember that I directed you yesterday about drawing of inferences and circumstantial evidence and that in order for you to draw an inference which goes to an element of the offence - for example, did Mr Cooper commit the crime, did he have the necessary mental intent? - you must be satisfied of the facts from which you draw that inference beyond reasonable doubt.

You would need to be satisfied, I put to you, that the calls were made at the instigation of Mr Cooper and under his direction beyond reasonable doubt. You would need to be satisfied that the only reasonable explanation for him causing those calls to be made was a belief that he held that unless he acted in that way he would be implicated in the crime and thirdly you would need to be satisfied that by acting that way he has admitted his responsibility for the crime.

95 His Honour gave an appropriate Edwards direction about the use of the post offence conduct.

96 Although that part of the charge was not as detailed as that in the first trial, it was quite adequate.

97 The principles set out above when assessing ground 4 from the first trial apply to this ground as well. I have considered the whole of the material relevant to the admissibility of the evidence. I am satisfied that there was sufficient evidence to form an inference that the appellant was the person who caused the calls to be made and a clear and appropriate direction was given as to the use to be made of it.

98 I would dismiss each ground of the appeal against conviction.

99 The written case for the appeal against sentence consisted solely of the court being provided with a list of cases where accused persons had been convicted of blackmail. The submission being that this sentence was a 'heavy' one for the offending.

100 In oral argument it was submitted that the sentences on the blackmail counts were within range but that the orders for accumulation produced a result which was manifestly excessive or offended the principles of totality. It was further argued that the sentences on the stalking counts were themselves manifestly excessive but it was accepted that the accumulation was moderate. It was submitted each of those separate analyses lead to a total effective sentence which was manifestly excessive or disproportionate. A separate complaint was advanced about the length of the non-parole period.

101 His Honour delivered careful reasons for sentence and made mention of all but two of the matters that were referred to on the plea. The two exceptions were that he did not refer to the long delay before the Chans went to the police. Nor did his Honour make separate reference to the fact that neither Silcot nor Kingshott handed over any funds.

102 The prosecution decided not to seek any convictions on the stalking counts relating to either Silcot or Kingshott. I regard that concession as generous because the duration of the alleged stalking was more extensive than that of the blackmail. The circumstances of the stalking did, however, form the background of the counts of blackmail.

103 Once the concession is made that the sentences of blackmail are within the range, the question then of accumulation on those two counts has to be considered. There is no doubt that accumulation was required. The victims, in one sense, were related, both being witnesses against the appellant, the conduct as it related to each of them, however, was quite separate. The accumulation of 1 year 9 months out of three years in all the circumstances was appropriate.

104 In considering the counts of stalking which involved three different victims, his Honour imposed sentences of 2 years, 2 years 6 months and 2 years 6 months. The stalking in the case of the Chans was over a very long period of time. Accumulation of 50 per cent on the Venier count and less than 50 per cent on each of the Chan brothers' counts produced a total effective sentence of 8 years 9 months. His Honour fixed a non-parole period of 5 years 6 months. The conduct in relation to each victim was sustained and threatening in nature. There was no basis for any of the conduct. Separate punishment was necessary for each victim. I am satisfied that the accumulation ordered was appropriate and did not of itself produce a sentence which offended the principle of totality or which was outside the range.

105 I am also satisfied that his Honour did have proper regard to the general matters put in mitigation such as the appellant's age, estrangement from family and his physical disabilities. His Honour did have regard to delay and took it into account. I do not regard the fact that the appellant received no money either as a product of the blackmail counts or for that matter the stalking of the Chans as a matter in mitigation.

106 This offending was serious. The appellant has serious prior convictions. This offending commenced when he had, at least, just finished parole for his earlier insurance fraud offending. The courts regard the offence of blackmail as a very serious one and although the table of sentences submitted in support of the appeal indicates that the sentences imposed in this offending are at the higher end of the range, they also indicate that the offence is to be regarded as a serious one and that is how the courts have described it in those terms.[21]

107 The prior history of the appellant was described by his Honour as follows:[22]

You admitted, through your Counsel, previous convictions before this Court. On 1 December 1982 of twenty-five counts of imposition and six counts of obtaining property by deception, for which you were sentenced to serve seven years and six months' imprisonment and a non-parole period of five years was served. From the sentencing remarks of Her Honour Judge Rizkalla, to which I shall shortly refer, it appears that, with remissions, you actually served three years and four months of that sentence. Subsequently, on 1 September 1988, at the Magistrates' Court at Melbourne, you were convicted of assault with a weapon and driving a motor vehicle in a manner dangerous to the public, disobeying a traffic control signal and disobeying a lawful direction of the police force, and were fined a total of $2,150.

Finally, on 20 June 2003 before this Court, you pleaded guilty to counts of attempting to obtain property by deception, attempting to obtain a financial advantage by deception, handling stolen goods, defrauding the Commonwealth (five counts), general dishonesty and operating an account in a false name. You were sentenced to a term of four years and six months' imprisonment, with a minimum non-parole period of three years to be served. I have read the sentencing remarks of my sister, Her Honour Judge Rizkalla, delivered on that day.

I note that you are also known as David Roberts. David Roberts is one of four aliases which you used to defraud the Commonwealth of various benefits. Her Honour made an order in respect of these frauds in favour of the Commonwealth against you in the sum of $180,403.

The particulars relating to your commission of the offences in the first trial all relate to conduct subsequent to your release from prison in about 2006. Insofar as the offending against the Chans is concerned, the great bulk of the particulars therein alleged were also committed following your release from prison, although, in the case of Yee Sek Chan, calendars were received by him in 2000, and in the case of his brother, Dr Chan, similar calendars were sent to him, together with a letter relating to the death of his nephew, all of which pre-dated your imprisonment, but the bulk of the course of conduct in support of the counts of stalking was committed by you after your release from prison.

108 His Honour did have regard to the question of delay. It appears from the material that the Chan brothers only went to the police because of renewed activity by the appellant in 2007 and it could not, therefore, have been a separate factor of delay. The complete absence of remorse was an important feature in the sentencing process particularly in the way it affected the appellant's prospects of rehabilitation.

109 If the appellant is released on parole at or near his earliest parole date, he will be under the supervision of the Parole Board for 3 years and 3 months. In longer sentences the percentage which the non-parole period forms of the total effective sentence to be served is often higher. Here it is about 65% and there is nothing remarkable about that. His Honour said that it was a longer period than he would have ordinarily fixed because of the age of the appellant.[23]

Your prospects of rehabilitation, in the light of your history and the circumstances of your offending, I consider to be slender. Mr Hands submitted that by reason of your advanced age, you may not live to be released and that accordingly general deterrence may be required to surrender some ground to the need to exercise mercy. There is no evidence before me as to your life expectancy, though I bear in mind that you are sixty-three years of age. Actuarial tables indicate that you have an expectancy of at least another ten years. For this reason, I have reduced your non-parole period to five and a half years.

110 A non-parole period must also serve all the purposes for which a sentence is imposed[24] and I consider the non-parole period fixed by the learned sentencing judge as being appropriate.

111 Having had regard to all the matters set out above, I would dismiss the appeal against sentence.

[1] R v Christie [1914] AC 545.

[2] Dupas v R [2012] VSCA 328; (2012) 218 A Crim R 507.

[4] Compare R v Thomas [2006] VSCA 167, [49]-[51].

[5] Criminal Procedure Act 2009, s 276(1)(b).

[6] R v Wright [1999] VSCA 145; [1999] 3 VR 355.

[7] R v Garth (1990) 49 A Crim R 298, 305.

[8] R v Thomas [2006] VSCA 167, [51].

[9] Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469.

[10] Evidence Act 2008, s 137.

[11] McCartney v The Queen [2012] VSCA 268.

[12] [1936] HCA 40; (1936) 55 CLR 499.

[15] [1993] HCA 63; (1993) 178 CLR 193

[16] [2006] NSWCCA 112; (2006) 66 NSWLR 228

[17] Dupas v R [2012] VSCA 328; (2012) 218 A Crim R 507

[18] Supra, s 137

[21] See R v Baini (2011) 33 VR 252, R v Farrugia [2011] VSCA 201, R v Latorre [2012] VSCA 280.

[22] DPP v Cooper (Unreported, County Court of Victoria, Judge Wood, 23 February 2012), [62]-[65] ('Sentencing Remarks').

[24] R v VZ [1998] VSCA 32; [1998] 7 VR 693.