Director of Public Prosecutions v Shandley

[2017] VCC 279

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01579

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK ADRIAN SHANDLEY

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 March 2017
CASE MAY BE CITED AS:	DPP v Shandley
MEDIUM NEUTRAL CITATION:	[2017] VCC 279

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Silbert QC
For the Accused	Ms O. Trumble

HIS HONOUR:

1Mark Adrian Shandley, you can stay seated for the time being.  You pleaded guilty to an indictment charging you with:  the offence of abduction; three offences of rape, two of them being representative charges; an offence of making a threat to inflict serious injury, and; an offence of theft, all of which occurred on 18 February 2016, and then on 19 February 2016:  an offence of reckless conduct endangering serious injury; an offence of causing injury recklessly, and; an offence of making a threat to kill.

2You have also admitted your criminal record, which shows a number of offences having occurred between the middle to latter part of 2012 through to a court appearance in Shepparton on 8 January 2016.  There are two other offences committed a number of years ago.  One of them, a court appearance in 2011, and another going back to April of 1996.  All of those offences, the 2011 and the 1996 offences resulted in fines.

3There are no prior convictions for any sort of sexual offending, or indeed for offences on anything like the scale of seriousness as those to which you pleaded guilty on this indictment. 

4The prosecution tendered and read to the court a summary of prosecution opening on plea.  That was read this morning, I am not going to read it again, but I incorporate it in its entirety into these reasons for sentence.

5The prosecution, led by Mr Gavin Silbert QC, described your offending as representing "every woman's worst nightmare".  I cannot but agree with that assessment.  You showed a callous disregard for the physical and mental consequences of your conduct towards the victim.  You showed her no mercy until after you had obtained your sexual gratification.  You were determined to achieve that at any cost to her.  To say that your conduct was utterly despicable is an understatement.  You subjected your victim to all manner of threats of violence and degradation over a two and a half-hour period, and you showed no semblance of humanity towards her until after you had ejaculated in her mouth, and required her to swallow your ejaculate.  You then finished off your conduct towards her by stealing from her. 

6Those offences involving abduction, snatching her off the street from behind and subjecting her to the conduct that I have just endeavoured to describe, is offending conduct of a very high order.  Mr Silbert submitted that it was in the upper echelon of seriousness. I accept that submission.

7So far as Charges 7, 8 and 9 are concerned, that conduct seemed to have arisen as a result of the jealousy that was aroused in your by seeing your former partner, in the company of a person you believed to be her new partner. You reacted by behaving in a violent and aggressive manner towards them, subjecting them to reckless conduct endangering serious injury.  Indeed, you were fortunate that you did not cause serious injury.

8You behaved towards your former partner in a way which may well have caused her very serious injury, and you inflicted injury upon her in a most frightening manner, by driving at her when she was unprotected, and jamming her between your vehicle and that of her then-partner.  You followed that up by making threats to kill a person who was acting as a good Samaritan, coming to her rescue, apparently believing that that person was the partner to whom you had direct your rage.

9Each of those offences are serious offences of their kind, although they pale into relative insignificance compared with the seriousness of the offending encapsulated by Charges 1-6 inclusive.

10The maximum term of imprisonment for the offence of abduction is ten years.  The maximum for rape, 25 years.  For threatening to inflict serious injury, five years.  For theft, ten years.  For reckless conduct endangering serious injury, five years.  And causing injury recklessly, five years.  And making a threat to kill, ten years.

11I note that the charges of rape, the subject of Charges 2 and 4 on the indictment, are representative charges, encapsulating a number of acts of rape within the same category.  That is, in relation to Charge 1, introducing your finger or fingers into the vagina of your victim, and in relation to Charge 4, introducing your penis into your victim's mouth.

12You are, in respect of those offences, only to be sentenced for one offence, although the full measure of seriousness of that offence encapsulates the various acts constituting rape that go to make up that representative charge.

13The prosecution also tendered, and relied upon, the victim impact statement of the victim, and that is Exhibit 2.  It was not read to the court, but I note that the victim is quite restrained in the way she expresses herself. Yet one cannot help but appreciate that the events of the early morning of 18 February last year will remain with her for the rest of her life, and to a significant degree you have changed her life.  And changed it very much for the worse.

14As she says at the end of her statement, "It is not the life I had".  I am bound to take that into account, I also was assisted by a number of photographs, which were tendered as Exhibits C, D and E. 

15Your counsel provided me with an outline of submissions on your behalf, which is Exhibit 1, together with a report from Dr Danny Sullivan, consultant psychiatrist, dated 14 March 2017, a letter from St Vincent's Hospital dated
12 October 2016, along with neurosurgery e-outpatient report, evidencing your admission for treatment for a subarachnoid haemorrhage. 

16I was also provided with a letter from Dr David Toffler dated 11 December 2014, which makes reference to a diagnosis from a Dr Orchard of adult attention deficit disorder, for which you were apparently treated with amphetamines.

17Ms Trumble also provided me with a report from a psychologist, Mr Peter Powell, dated 24 March 2015, in which he makes further reference to that diagnosis.

18I say straight away that Ms Trumble pointed out to me that Dr Sullivan had cast considerable doubt on the diagnosis of adult attention deficit disorder, to a point where it is not suggested on your behalf that you actually had that condition, rather that it was misdiagnosed, and you were treated incorrectly with amphetamines for that condition.

19The material that I have just referred to, in particular Dr Sullivan's report, tells me a good deal about your background.  You were born in Leongatha, and your father worked as a dairy farmer.  Although it seems that you were in a family where there was a good deal of tough discipline, much of your background is unremarkable. 

20You did not do particularly well at school, and you were probably bullied to some extent by an older brother.  But you had a good work record for a number of years, and showed that you are capable of holding down a good job, and capable of working and leading a relatively uneventful and honest life.  You had a longstanding relationship with Samantha, from which there were two children, Tyrone and your daughter.  They are both in their late teens. Apparently you have not had much contact with them in recent times.

21Clearly, there was difficulty in that relationship, and it seems to have given rise to incidents of breach of intervention orders, in the period at least since November 2012.

22Following your relationship with Samantha, you took up with Kylie Stott, one of the victims of Charges 7, 8 and 9 on the indictment. From what your counsel told me, and from the content of
Dr Sullivan's report, many of your more recent troubles seemed to have stemmed from that relationship, in that it seems that the two of you, that is,
Ms Stott, had concurrent methamphetamine abuse problems, and that caused or contributed to your being out of work for the last four years or so.

23It also, no doubt, caused or contributed significantly to the offending conduct that is reflected in your criminal history during that period since late December 2012, and culminating in a term of imprisonment, which came to an end just a few weeks prior to the offending conduct the subject of this indictment.

24You had spent about five months in custody, came out, and within a short period of time, you were back using methamphetamines and putting yourself in a state of mind where this offending conduct took place.

25It is not suggested for a moment on your behalf that the fact that you were taking ice shortly before the offending conduct took place is in any way a mitigation of your moral culpability for these offences.  It is just contextual.

26You, like many others who have fallen foul of methamphetamines and become addicted or dependent, or simply abused them for recreational purposes, frequently do, and in your case have, committed very serious offences, which if one had relied on your past record up to the age of 42 or thereabouts, one would say is out of character.

27I have to sentence you on the basis that it is the duty of the court to express denunciation of this offending conduct in the strongest possible terms, to punish you adequately for your offending conduct, to pay proper regard to the need to protect the community from you as an offender.

28I note that I will be sentencing you on Charges 3 and 4 as a serious sex offender, and that the primary sentencing consideration is protection of the public.  The prosecution has not sought a disproportionate sentence, which would enable me to impose a sentence which was disproportionate to the overall offending conduct in order to ensure protection of the public.  Rather,
Mr Silbert has submitted that I have adequate powers of punishment, having regard to the maximum terms of imprisonment for each of these offences, without resorting to that option.

29Ms Trumble has not sought to persuade me that the principles arising from the well-known case of Verdins apply in this case.  She has pointed out to me that not only have you pleaded guilty to these offences, but that you negotiated a plea, and indicated the plea at an early stage in the criminal process.

30All of that is very much in your favour.  It has saved the community a good deal of money, and most importantly, it has saved any of your victims having to give evidence in any of the proceedings, which would have added to her trauma arising from your conduct.

31Your pleas demonstrate a willingness to facilitate the course of justice and to accept criminal responsibility, and you are entitled to an appropriate discount for those pleas of guilty.

32Your prospects of rehabilitation are dependent, as your counsel submitted, and indeed Dr Sullivan suggested in his report, upon your willingness to accept appropriate treatment.  Not just in relation to sexual offending, but as importantly, if not more importantly, to deal with your drug abuse.  If during your period of incarceration you are able to address those issues through appropriate rehabilitative treatment programs, then your prospects of rehabilitation will increase markedly.  I cannot at this stage assess your prospects as being good.  Rather one has to be, I think, guarded about your prospects, unless and until you demonstrate willingness and capacity to deal with the problems that I have just referred to.

33There will be opportunity, as a sentenced prisoner, to avail yourself of rehabilitative courses and programs that have not been available to you as a remand prisoner.  Much will depend upon your willingness to take those opportunities in terms of persuading the Parole Board, ultimately, to consider you as a candidate for parole.

34Your prospects of rehabilitation are in your hands in that regard.  

35I have to pay proper regard to facilitating your rehabilitation as much as I reasonably can, consistent with other sentencing considerations.  At this stage, I would have to regard individual deterrence as an important sentencing consideration, and in particular, general deterrence.  That is, deterring other people from behaving in this manner.

36Many people come before this court with much worse criminal records than you have got. As I have already noted, you do not have any prior convictions for sexual offending, or for violent offending on anything like the scale that you exhibited on the 18th and 19 February of last year.

37Ms Trumble on your behalf, and no doubt after consultation with you, has readily accepted the serious nature of your offending conduct, and the inevitability that you will have to serve a significant term of imprisonment.  I am required to, and invited by your counsel, to pay proper regard to the totality principle.  That is, not imposing a sentencing that is crushing, and to impose sentences that have a degree of concurrency, which leads to a sentence that pays proper regard to that totality principle.

38Your counsel has not shrunk from, I think, the accuracy of the submission of the prosecution that these are offences in the upper echelons of seriousness of their kind, in particular the abduction and rape offences, the subject of Charges 1-4 on the indictment.

39Doing the best I can to balance those competing sentencing considerations.  I am now ready to impose sentence upon you, would you please stand?

40In respect of each of the nine offences to which you have pleaded guilty, I convict you:

41On Charge 1 of abduction, I sentence you to four years' imprisonment;

42On Charge 2, I sentence you to imprisonment for a period of ten years;

43On Charge 3, I sentence you to imprisonment for a period of eight years;

44On Charge 4, of rape and the two representative charges, I sentence you to imprisonment for a period of ten years;

45On Charge 5, of threatening to inflict serious injury, I convict you and sentence you to imprisonment for a period of two and a half years;

46On Charge 6 of theft, I sentence you to imprisonment for a period of nine months;

47On Charge 7, of reckless conduct endangering serious injury, I convict you and sentence you to imprisonment for a period of two years;

48On Charge 8, of causing injury recklessly, I sentence you to imprisonment for a period of two and a half years, and;

49On Charge 9, of making threats to kill, I sentence you to imprisonment for a period of 15 months.

50I treat the sentence of ten years on Charge 2 as the base sentence, and I order that six months of the sentence on Charge 1, nine months of the sentence on Charge 3, 12 months of the sentence on Charge 4, three months of the sentence on Charge 5, six months of the sentence on Charge 7, and six months of the sentence on Charge 8, be served cumulatively upon one another, and the sentence of ten years that I have imposed on Charge 2.

51That makes a total effective sentence, on my calculations, of 13 years and six months' imprisonment, and I order that you serve a period of ten years before you become eligible for parole.

52I have ordered a relatively long period of your eligibility for parole, after ten years, to acknowledge the fact that it will be hard for you serving sentence after the physical illnesses that you have had over the last 12 months or so, the subarachnoid bleeding, the high blood pressure and other issues which led to that will cause you anxiety.  And I note that you are suffering from a depressive illness.

53I have also given you credit for the fact that you do not have a criminal record involving sexual offending, and that this will give you the chance of demonstrating in the period of your incarceration that you have a capacity for rehabilitation, which would, or may, enable you to be paroled.

54I declare 394 days presentence detention as time to be reckoned as served on the sentences that I have imposed, and deducted administratively from the time you will actually have to serve.  And I order that that fact be noted in the records of the court.

55But for your pleas of guilty, I would have sentenced you to imprisonment for a period of 17 years with a non-parole period of 14 years and six months.

56I make the order for forfeiture in the terms of the draft which I have been provided.  I sentenced you on Charges 3 and 4 as a serious sex offender, and I order that you be the subject of the reporting obligations under the Sex Offenders Registration Act for a period of 15 years.

57Are there any other orders I need make?

58COUNSEL:  No Your Honour.

59HIS HONOUR:  No, thank you.  Ms Trumble, your client will need to sign the acknowledgement in relation to the obligations under the Sex Offenders Registration Act.  Would you mind assisting with that?

60MS TRUMBLE:  Yes Your Honour, I will.

61HIS HONOUR:  Yes.  There is a request from the media for a copy of the indictment and the prosecution summary.  I propose to release those documents, subject to anything counsel wish to say, with the obvious caveat that there will need to be care in relation to the reporting, yes.  And it will be for the purposes of assisting with the accuracy.  Yes, thank you counsel for your help.

62MR SILBERT:  If Your Honour pleases.

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