Director of Public Prosecutions v Stephenson

[2018] VCC 2145

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00725

DIRECTOR OF PUBLIC PROSECUTIONS

v

CRAIG STEPHENSON

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 December 2018
CASE MAY BE CITED AS:	DPP v Stephenson
MEDIUM NEUTRAL CITATION:	[2018] VCC 2145

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 P. Stefanovic
For the Accused	Ms N. Menegas

HER HONOUR:

1Craig Robert Stephenson, you have pleaded guilty before me to one charge of recklessly causing serious injury and one charge of failing to stop after an accident.  The facts underlying your offending are as follows.

2On the afternoon of 25 September 2015, the victim, Christopher Hepburn, with whom you had been having a long running and very nasty Facebook war, went to the Werribee Tavern at the Werribee Plaza Shopping Centre where he played the poker machines, leaving to go home just before 5.30pm.

3While leaving he bought a bottle of port from the tavern bottle shop and by chance met a friend, Aaron Horsefall, in the Werribee Tavern.  The two of them walked towards Mr Horsefall's vehicle which was parked in the plaza car park.

4Mr Horsefall's car was parked near KFC and Hungry Jacks at the plaza, they being two adjoining premises in the plaza car park which are separated by their drive throughs that run east to west.  KFC is on the north side of the drive through and Hungry Jacks is on the south side.

5There is an entrance to the car park to the south of Hungry Jacks from Derrimut Road which is the Derrimut Road driveway and to the south of which is another car park.  The tavern was to the south of this car park and Hepburn and Horsefall walked through it from the tavern and the area was monitored by CCTV.

6They also walked across the Derrimut Road driveway.  You were driving your white Commodore on the Derrimut Road driveway entering the plaza as Hepburn and Horsefall were about to cross it.  In other words you met with Mr Hepburn by chance.  You slowed your car down and stopped as Mr Hepburn and Mr Horsefall were about to walk in front of your car and you then saw each other.

7Mr Hepburn later told police he thought he saw you mouthing words at him and said you opened your door and tried to get out.  Mr Hepburn then ran a few steps to the driver's door, pushing it shut, to stop you getting out.  He said he thought he saw you reaching for something in the car which might be a weapon and therefore hit his bottle of port on the driver's side window, breaking the bottle.

8You drove forward and immediately turned left into the car park that Hepburn and Horsefall had walked through.  You then drove into the car park, and did a U-turn at a fast rate of speed.  All of this was captured on CCTV footage which was played in the plea hearing.  You then drove from that car park at a fast rate of speed in the direction that Hepburn and Horsefall were walking, you leaving the car park about eight seconds after turning into it.

9As Hepburn and Horsefall were walking in about the middle of the driveway road in the area of the Hungry Jacks drive through you drove at them.  Horsefall was able to jump clear and yelled at Hepburn but he could not get out of the way and your car hit him.

10He was thrown in the air, hit your windscreen, tumbled several times and ended up in an area of the drive through near a garden bed.  You drove off at a fast speed without stopping.  Mr Hepburn was left in excruciating pain and saw he had bones sticking out of his leg.  Police and ambulance attended and Mr Hepburn was taken to the Royal Melbourne Hospital where he underwent surgery, being discharged three days later on 28 September.

11His injuries included a compound fracture of his right tibia and fibular and a shattered right knee.  As at May 2016 he was walking on two crutches.  He had double fractures to his left arm that required surgery - a steel plate had to be inserted and he suffered partial forehead scalping and a brain injury that affected his vision and memory.

12Police attended at your premises on 27 October 2015 where you were arrested, taken to the police station and where you told them in a record of interview that you had known Hepburn for a few years, the two of you had had a fight, that Hepburn had been threatening you for months on Facebook, including threats that he was going to sexually assault your three year old daughter and bottle your 20 year old son and that he was in fact going to shoot you and kill you and you had copies of those threats.  In fact you did maintain copies of those threats and I have seen the copies of them and as you told police they are precisely the threats that were made.

13You told police there had also been a verbal confrontation several months previously where Mr Hepburn had also said something about "having it in Stephenson's daughter's arse" at which time you took off.

14You told police that Mr Hepburn had smashed a bottle on the driver's side of the window and had stopped you from getting out and you basically said you were "pissed off" as Hepburn had just attacked your car and sprayed it with glass.

15This matter proceeded to a contested committal on 28 April 2016 at which time witnesses were called.  You were committed on all charges and there were various directions hearings in the County Court.  On 21 December 2016 an offer was made and accepted and you were arraigned and pleaded guilty to the plea indictment on 23 January 2017.

16This matter has had a somewhat protracted course in terms of the plea.  The plea began on 12 May 2017 at which time I deferred sentence for 12 months.  The matter then returned on 12 May 2018.  The matter was further adjourned after a further plea hearing to 29 November and the matter was then adjourned for sentence today.

17I now turn to your personal circumstances. 

18You are now 46 years old.  You are the youngest of three brothers born to your parents.  Your brothers are both gainfully employed and they have never been in any trouble with police.  However as a young child you were the victim of sexual abuse at the hands of a neighbour who was ultimately arrested and charged in relation to assaults on a number of neighbourhood children.  Thereafter your behaviour deteriorated drastically.

19You were about ten years old at the time of these assaults and soon after you began drinking on a regular basis, eventually being asked to leave the primary school that you were at.  You finally completed Grade 5 and 6, but by the age of 12 in 1984 you had started using cannabis and progressed quickly to using amphetamines and MDMA. 

20You started Year 7 at Laverton Secondary School which you were asked to leave at the end of that year.  You completed a year at Sunshine Technical School and then you left to commence work with your father at Gilbertson's Meatworks.

21You went on, despite compiling quite a criminal history, to also compile a fairly impressive work history.  You worked for Gilbertson's and then worked seasonally for your uncle at an abattoir for about seven months each year for about a five-year period, during the same period also working for a poultry company and another food company in the off-season until you were 20.

22When you were 18 you moved out of home and by this stage, although you were working, you had a severe drug habit and you turned to selling cannabis in order to support your habit.  When you were 20 you were gaoled for the first time, serving 11 months on a charge of trafficking cannabis and this was the first time you had been out of paid employment since you were 14 years of age.  That was in 1992.

23There were a number of matters starting from 1989 which were minor offences, involving essentially primarily your use of cannabis.  There was a theft, there was an intentionally cause injury, but they were all dealt with by way of fine or adjourned undertakings.

24You served 11 months, although the record seems to be that you received only six months on this charge but your instructions were that you served 11 months.  You got out of gaol in 1993 when you were 21 and began a relationship with a lady called Louise and this relationship lasted for 12 years.

25Of that relationship a son, Jay, was born.  Jay was from an early age diagnosed with ADHD and he has had continuing struggles with depression and anxiety but you have remained close.  There were difficulties in that relationship.  Louise was a primarily prescription drug abuser and had problems with alcohol.

26You went on to continue working.  You moved into the construction industry where you worked for the next few years, although there was another matter at the Williamstown Magistrates' Court in 1996 for which you received a Community Corrections Order for recklessly causing serious injury and assault in company.  You successfully completed that order.

27You essentially remained employed for the rest of your 20s, working as I have said in the construction industry, but you were also working a lot of night shift work and problems arose with the relationship.  You would come home early in the morning and you would be unable to get Louise out of bed.

28There were arguments over the care of your son and eventually when you were about 31 in 2003 your relationship with Louise ended due to her alcoholism.  She left you and took Jay with her.  You had continued to sporadically use drugs over those years but it had not interfered with your capacity to work and I note in your criminal history there is no further offending until 2003 at which time you received a suspended sentence for driving charges which included refusing to undergo a breath test, driving whilst disqualified, speeding and stating a false name and address.

29Then in 2004 in the context of your relationship having ended, you returned to heroin use and there comes further offending and in 2004 again you were dealt with for driving whilst disqualified and breach of a suspended sentence which was partially restored.  By that time Jay had been returned to you because of Louise's inability to cope, and both you and your mother, who has remained a stalwart and supportive figure in your life ever since, cared for Jay in that time.

30In 2006 you were placed on a six month intensive Community Corrections Order for cultivating and using cannabis.  In 2008 you were fined for theft, unlawful assault and wilful damage.  In 2006, at the age of 34 you were involved in a motor vehicle accident for which you were hospitalised but you discharged yourself prematurely in order to care for your son.

31Then in 2008 you committed some serious offending, intentionally causing serious injury for which you were dealt with in the County Court, receiving in 2010 a three-year gaol term with a minimum term of 13 months.  You were released from gaol.  You had been working with Toorak Formwork as a traffic controller, dog man and general labourer and in this time you became involved with a lady named Tracey.

32In 2010, as I have said you were sentenced and then on
20 May 2011 you were released on parole.  You returned to work and resumed your relationship with Tracey who fell pregnant.  You were employed by the Delta Group but unfortunately suffered a serious workplace injury to your lower back and neck.

33You were airlifted to the Alfred Hospital - you had significant pain but refused medication because by this stage you were very keen to ensure you would not use any drugs at all in order to avoid addiction and relapse.

34You were returned to work on light duties.  However, just before Christmas in 2012 you were made redundant essentially because the firm was unable, it would seem, to continue providing light duties and your relationship at that time with Tracey failed.

35Your daughter, Skyler, was born soon after the relationship ended and until recently you had never had any contact with her.  You then fell back heavily into serious drug use.  You began for the first time using methylamphetamine, you became addicted to it very quickly, used it intravenously and started abusing Xanax and then you began trafficking in methylamphetamine to support yourself and Jay.

36By this time the pair of you were essentially homeless.  Your mother was unable to tolerate your drug use, very understandably.  Essentially she took Jay back but refused to have you in the house because of your drug use.  The trafficking, as I have said, was done in order essentially to raise monies to self-assist you with Jay.

37At this time you were desperate and homeless and you made a suicide attempt by driving a car into a tree and thankfully that was unsuccessful.  You were in 2013 placed on a suspended sentence, the period being an eight month suspended sentence for a period of 18 months which was operational until April 2015.  In June of 2015 you commenced a relationship with a woman named Kylie.  You were still in that relationship at the time you first appeared before this court in relation to the current charges.  Prior to this you had always successfully completed parole and all non-custodial dispositions you had been placed on.

38There had been some difficulty with her previous partner.  He stabbed you and shot at you and then on 25 September the offending occurred.  You were remanded in custody on 27 September and you remained in custody from
27 September 2015 to 9 November 2016.

39You used your time well during that time in gaol; you engaged with a Forensicare clinician.  You saw a counsellor from Caraniche weekly.  You completed a six-hour drug and alcohol program.  You completed a release related reduction program.  You attended a mood group for depression.  You completed a seven-session psycho-educational intervention program.  You worked as a kitchen billet and in that time were exposed to the aftermaths of the riots at the MRC in which you took no part but you were held in 23-hour lockdown for a number of months.

40On 9 March 2016 you appeared before the Magistrates' Court for a consolidation plea and breach of suspended sentence for charges which had occurred in late 2014 / early 2015.  The suspended sentence was restored by Her Honour Magistrate Grubissa, and that was due to lapse on 9 November 2016 and while you were in gaol she had you assessed for a Community Corrections Order and you were placed on that Community Corrections Order and you were on it at the time you appeared before me.

41Once you got out of gaol you moved away from Laverton to avoid further trouble with your old friends.  You began living with Kylie in Geelong.  Your parents in the meantime had moved to Bacchus Marsh and both your parents suffered health difficulties, particularly your father who ended up having to have a hip replacement.  You did well on the Community Corrections Order for a while.

42You were unable to take paid employment because you wanted to attend to the Community Corrections Order.  You were abstinent from drugs and alcohol and at the time you appeared before me there was no subsequent offending and there was nothing pending and in the circumstances I decided to deal with you by way of a deferred sentence.

43All did not go well.  Shortly after you were placed on that deferred sentence your relationship with Kylie broke down in fairly acrimonious circumstances.  She had an ectopic pregnancy, she ended up having a hysterectomy, you moved back to your parents' place and relapsed into drug use.

44Ultimately you engaged in some further offending which was the theft of a trailer and five drive aways at petrol stations without paying.  The matter was returned to me as I have said in May 2018.  You had yet to be dealt with by Magistrate Grubissa and I adjourned the matter further to see the outcome of that.

45When the matter came back in front of me in May you had re-engaged with drug and alcohol treatment.  A Ms Abberley from the Planet Wellness Drug and Alcohol Addiction Service Centre appeared in court and talked about your engagement with her.  She was a person who had worked as Odyssey House for 15 years.

46The facility she runs offers both in-house and out-patient services.  She said you had been engaging well.  You continued there until finally you were sentenced by Her Honour Magistrate Grubissa to 100 days imprisonment in late September of this year and you are still undergoing that sentence.

47So what I am left with, Mr Stephenson, is a rather chequered career, to say the very least.  There are positive components which have been your work history, your attempts to stay on the straight and narrow and the protective features in your life which primarily revolve around your mother who prior to your sentence had become particularly dependent upon you.  She has suffered some medical difficulties as has your father.

48You were living with them and you were a carer for them.  You have also surprisingly formed a very positive relationship with a lady who is a former drug and alcohol counsellor but who is currently caring for her father and raising her three children.

49Unsurprisingly whilst conceding that you had in fact made pretty good strides in the intervening period since you appeared before this court, it was submitted that the offending you engaged in was too serious for this court to deal with you other than by way of a sentence of imprisonment to be immediately served.

50I can well understand that submission.  You have every time you have appeared before this court in conversation with this court expressed your desire to reform your life and to move on.  Eventful as your life may have been and eventful as matters may have been since I placed you on that deferred sentence back in May of last year, I am impressed with the strides that you have made.

51We could have done without the trailer and petrol theft, Mr Stephenson.  There has been a relapse into drug use but the offending you engaged in has been nothing like your offending of the past.  It is my view that I can deal with both the punitive and rehabilitative aspects that your case presents by way of a combination sentence.

52I can assure you, Mr Stephenson (you have been assessed as suitable for a Community Corrections Order), you and I will be seeing a lot of each other.  You will be coming back before me apart from anything else on frequent judicial monitorings and if there is any straying from this final opportunity that you are being given you need to resign yourself to the fact that if I am put in a position where you breach this order and I re-sentence you that you will receive a significant sentence.  Do you understand?

53OFFENDER:  Yes, Your Honour.

54HER HONOUR:  However, in my view the offending, although extremely serious (and there is no doubt you have speeded up towards this man), you injured him very gravely.  In the victim impact statement he writes unsurprisingly of the ongoing pain and disability that the injuries have left him with.

55I do accept that it was impulsive, that there was a certain amount of provocation and I do not say that in any sort of legal sense or as any sort of excuse, but it does give some context and explanation for your offending.  I should add as well that whilst overall the reports from your performance on the Community Corrections Order were not bad, there was one occasion where during unpaid community work you had contact with someone else you knew who you felt was treating his partner badly whom you also knew and you decided that you would put on your sheriff's badge and have a word with him.

56That resulted in a warning to you for what was called threatening another worker on the site.  We had discussions about that and I repeat you will be doing unpaid community work, Mr Stephenson, and as I said to you at the time in court what other people are doing has got nothing to do with you whilst you are on this order.  Do you understand?

57OFFENDER:  Yes, Your Honour.

58HER HONOUR:  If I get any reports back about that sort of behaviour again it will be regarded very dimly indeed.  However, in legal terms, again as I have said, there are particular circumstances relating to this offending which give it some explanation without in any way it being an excuse.

59I do not, given the progress you have made, regard you as being of great threat to the community.  I regard you as having reasonable prospects of rehabilitation and given your background and your very longstanding addiction to drugs I think in the circumstances you have done enough for me to be satisfied that a further attempt at final rehabilitation is worthwhile in your case.

60I am therefore going to sentence you as follows.  Could you stand up please, Sir?  Is it about eight months he has got that he has done in relation ‑ ‑ ‑

61MR STEFANOVIC:  165 days.

62HER HONOUR:  On the charges of recklessly causing serious injury and failing to stop after an accident I am sentencing you to 165 days of imprisonment which sentence I direct has already been served by way of pre-sentence detention.  What is the release date?

63MS MENEGAS:  19 December, Your Honour.

64HER HONOUR:  I am going to place you on a Community Corrections Order for a period of three years.  It will begin on 19 December 2018.  I can only place you on that order with your consent and I need to outline the conditions of that order.

65They are that whilst you are on the order you must not commit any offence punishable by imprisonment.  You know what that means.  If you so much as knock off a box of matches from Woolworths for which theoretically you could be gaoled that will be a breach.

66Whilst on the order you may not leave Victoria without the permission of the Corrections office, you must report to the Community Corrections office within two days of the making of this order.  That is by the Friday of that week.  You must report any change of address or employment to the Office of Corrections within 48 hours of the making of that change.

67You must report to and receive visits from the Community Corrections office.  You must not attend upon the Community Corrections office whilst under the influence of drugs or alcohol.  You must obey all lawful directions of the Community Corrections office.

68The special conditions are that you are to complete 300 hours of unpaid community work.  You are to attend for assessment and treatment for drug and alcohol abuse.  You are to attend for assessment and treatment for mental health difficulties.

69It has also been recommended that you attend for offence specific programs; an anger management program has been recommended.  There will be supervision and there will be judicial monitoring and the first judicial monitoring will take place one month after your release from gaol.

70It will be 9.30 and we will beam you in from probably Werribee I think it is - Ballarat.  You have been living at Bacchus Marsh.  Is that right?

71OFFENDER:  Yes.

72HER HONOUR:  On 24 January at 9.30 when I will get a report from the Office of Corrections to see how you are going and we will continue on that monthly basis for some time until I am satisfied that you are organised and then I will probably lengthen it out.

73But I will be receiving frequent reports from Corrections about your progress.  I regard that as a further protective factor.  Do you understand?

74OFFENDER:  Yes, Your Honour.

75HER HONOUR:  This is the last chance, Mr Stephenson.  That was extremely serious offending and as I said we are running out of steam with you.  It is all very well you coming here each time and saying you want to change your life and you want to do this and you want to do that.  This is it.

76MR STEFANOVIC:  Your Honour, sorry I just wanted to raise a number of things.

77HER HONOUR:  A number of things?  What have I done wrong?

78MR STEFANOVIC:  Nothing yet.  A forfeiture of the car, Your Honour.  That application was made and is not opposed.

79HER HONOUR:  I'm sorry and unless you've got anything to say I can see no reason why he shouldn't lose the car.

80MS MENEGAS:  Your Honour, if I can briefly approach?

81HER HONOUR:  Yes, you can have a chat to him but I'll want something pretty compelling.

82MS MENEGAS:  Yes, Your Honour.  Very well, Your Honour, that is not opposed.

83HER HONOUR:  I would be very interested to hear what you had to say about why you should keep your car.  I've got the forfeiture order here.

84MR STEFANOVIC:  Failing to stop after the accident requires a mandatory licence loss, licence to be cancelled, disqualified.

85HER HONOUR:  What is the minimum?

86MR STEFANOVIC:  I addressed you previously.  I think it was two years.

87HER HONOUR:  Two years?  All licences are cancelled and you are disqualified from obtaining any further licence for a period of two years.  There is nothing I can do about that, it is mandatory.  If you come back in front of me on a drive whilst disqualified I will not be happy.  Do you understand?

88OFFENDER:  Yes, Your Honour.

89HER HONOUR:  I need to tell you this, it is probably not worth anything, but what always fascinated me when I was practising - I would have clients who spent years in gaol because they couldn't stay out of a car.  They might as well have done an armed robbery.  You stay out of the car.  It is going to make life harder for you but you cannot drive and I don't know why it is but people who are on drive whilst disqualified seem to attract some sort of cosmic fickle finger of fate.

90The number of blokes I've had to deal with who have been picked up for a licence check, which I must say I never have been in my life, and then we discover they're on drive whilst disqualified.  It just seems to happen.

91I would imagine police in the area know your head, Mr Stephenson, as well.  If they see you in a car they are going to pull you over.

92MS MENEGAS:  Your Honour, if I can raise one matter?  It's a recommendation of Corrections in the report in relation to s.48C(a) ‑ ‑ ‑

93HER HONOUR:  Yes, I will also order that attendance on any rehabilitative programs may be offset against work hours.  That means for every hour you attend for drug and alcohol that will come off your work hours.

94MR STEFANOVIC:  Your Honour, the final thing, 6AAA.

95HER HONOUR:  Yes, that is right.  Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of three and a half years and ordered that you serve a minimum term of two years.

96MR STEFANOVIC:  If Your Honour pleases.

97MS MENEGAS:  If Your Honour pleases.

98HER HONOUR:  We will see you late January, Mr Stephenson, and you better be looking good.  Thank you very much.

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