Director of Public Prosecutions v Stockdale

[2018] VCC 1351

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02009

DIRECTOR OF PUBLIC PROSECUTIONS

V

KEVIN STOCKDALE

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 March 2018
CASE MAY BE CITED AS:	DPP v Stockdale
MEDIUM NEUTRAL CITATION:	[2018] VCC 1351

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	Ms D. Guesdon
For the Accused	Mr H. Rattray

Pages 1 - 7

 

 

HIS HONOUR:

1Kevin Desmond Stockdale, you have pleaded guilty to two counts of common assault, the maximum penalty for each of these offences is five years' imprisonment.  The plea to these charges comes on the third day of your trial.  Nevertheless I consider the plea has considerable utilitarian benefit.  I will expand on this later in my sentencing remarks.  You have admitted your prior criminal history.  It was described by your counsel as unenviable.  I say that it is relevant, given it's extent, to the question of specific deterrence in this case.

2The prosecution tendered an amended summary of prosecution opening for plea as Exhibit A. The essential facts of this matter are that prior to 25 January 2017.  Matthew Stewart engaged in text message exchanges and telephone calls with the complainant in this matter, Ricky McCasker.  Mr Stewart claimed that Mr McCasker owed him money which was denied by Mr McCasker. 

3The text exchanges and calls continued on 25 January and just before 8 pm on that evening Stewart contacted Mr McCasker again by phone and text and said that he was coming over for coffee.  Mr Stewart went over to Mr McCasker's place, it appears that he lived nearby.  You attended with Mr Stewart and with Daniel Richie.  You were both known to Mr McCasker but Mr McCasker did not know that you were attending with Mr Stewart at this time.

4You had been told before you went to the McCasker residence about a $50 debt that was said to be owed by Mr McCasker and you were told that Mr Stewart was going to sort it out.  You said that you would go around with him and help him get the money back.  You all entered into the lounge room and Mr McCasker was standing by the firebox.  Another man, Dylan Morse was sitting in a chair in the lounge room. 

5An argument started between Mr Stewart and Mr McCasker over this alleged debt.  It became quite heated.  Apparently both men were yelling at each other.  Mr Stewart said the debt was owed, Mr McCasker denied it and Mr Stewart refused to leave without it.

6You then intervened, Mr Stockdale.  You admit that you punched Mr McCasker in the stomach with an unidentified object. Although no physical injuries were caused to Mr McCasker, he was shocked at your actions.  Mr Morse then stood up from his chair and you then you pushed him down and told him to sit down.

7An assault then took place on Mr McCasker where Matthew Stewart assaulted McCasker with a whip, like a cat o'nine tails.  Mr McCasker managed to escape to his bedroom and close the door.  Matthew Stewart continued by punching the door whilst yelling at him.  Mr Stewart and Mr Morse then began fighting and Mr Morse was likewise hit with the home made whip that I have described. 

8For your part, however, the prosecution does not allege that you played any part in the assault on either Mr McCasker or Mr Morse that was undertaken by Stewart. 

9When police attended they saw that Morse had a laceration near his left eyebrow and there was blood on his head, his clothing and on the lounge room floor.  Mr McCasker had red abrasions on his arm.  I have seen the photographs of those injuries.  When you were arrested by police on 3 May 2017 you made partial admissions.  You certainly admitted to having been there and that you and Stewart had gone there to get the money back.

10You have been in custody since 3 May 2017.  You have now served 316 days excluding today as pre-sentence detention which I will reckon as already served. 

11I received as an exhibit the victim impact statement of Ricky McCasker and I respect Mr McCasker's right to privacy in that he asked that it not be read in court.  I can say however that the effects of this incident have remained with Mr McCasker in many ways and will continue to have a profound psychological effect on him for some time to come.

12I turn to the objective seriousness of your offending. It was submitted by Mr Rattray that the actual conduct constituting the assaults committed by you were at the lower end but the offending is made more serious by the fact that these took place within the complainant's house and the reason for the assault makes it look like you were there as muscle over a debt that was contentious and in any event did not concern you.  These factors add to the objective seriousness of the offending together with the fact that  you have a number of prior convictions for violence.

13I note that your conduct did not cause physical injury to Mr McCasker but he was, and it is admitted by you, shocked by your actions and, as I have already observed (whilst respecting the privacy craved by Mr McCasker in the course of his victim impact statement) it is clear that your conduct in the overall incident has had a clear ongoing psychological effect on the complainant.

14It is fortunate that you were not a party to Mr Stewart's offending but, as I have said, the context in which it occurred, that is, in Mr McCasker's home over a questionable debt where you were acting as back-up or "muscle" occurring as it does against the context of your prior convictions and your relatively recent release from prison on a count of a serious assault make these serious offences within the band in which they fall. As such, principles of general deterrence, denunciation and specific deterrence all have a role to play in the sentence I must impose. 

15I turn now to your personal circumstances and history.  You are 55 years of age and you were born in July 1962.  Your mother died some 31 years ago but your father who is now aged 84 and suffering from severe ill health, is still alive.  You have described him to your counsel as being "on his last legs". 

16You have four children to whom you are, in varying degrees, close.  They do not visit you in prison but when you are released you have considerable contact with them. 

17You were educated to Year 10.  Your work history I am told has been reasonable over the years which has to be taken in context with the various periods of imprisonment that you have served.  I am told that the work you performed is both skilled and unskilled but you are presently on a disability pension and when you are released from prison you intend to care for your father in his last days. 

18I turn then to your prior offending history.  On 27 March 2013 you were sentenced to a terms of 3 and 1/2 year’s imprisonment on a count of recklessly cause serious injury.  I put aside the matter of 1 June 2004.  That is the count of intentionally cause serious injury that appears in your criminal record because there is simply not enough detail as to what the actual charge was, what court it was you were sentenced in and what the sentence was.

19You have a matter in 1994, 15 November where you were convicted of threatening to inflict serious injury.  Then, in February 1991 there are counts of intentionally cause serious injury and common law assaults and violence against police.  Then, on 23 April 1987 you were convicted of manslaughter.  For each of the matters I have just referred you received periods of imprisonment. 

20You have appeared before the court on some 25 occasions including one appeal, your prior criminal matters include driving offences and serious drug offences.  It is trite to say that you have served numerous periods of imprisonment.  The matter of 27 March 2013 is particularly serious in this context as you were released from prison in the last quarter of 2016 - this offending occurring in late January 2017.  What that means is your prior convictions must play a role in the consideration of the sentencing principles that I must take into account in arriving at a just sentence in all the circumstances.

21On your behalf, it was submitted that the plea of guilty ought to play a role in mitigating the sentence I impose upon you.  It is clear as the prosecutor conceded that the plea has utilitarian value as the negotiations that took place between your counsel and the prosecution resulted in you facing a different charge.  That is, a charge of common assault instead of the charge for which you were principally fighting a trial. In the circumstances I consider that notwithstanding that the plea came in the third day of your trial, the fact that it resulted in a different indictment must be taken into account in your favour.

22It was submitted by your counsel, Mr Rattray, that you have reasonable prospects for rehabilitation.  I say this though Mr Stockdale, so long as you resort to violence, your prospects remain poor and the plea that you are getting too old for this kind of thing carries little value.  What you really need is insight and determination in order to move your life forward.

23As such, I consider that general deterrence and denunciation are the primary sentencing considerations in this matter.  To assault someone in their own home is a low act and it is clear that the effect on Mr McCasker has been profound.  He should not have to stand for, and the community certainly will not stand for acts of violence (particularly in someone's own home) but to do so as a back-up for another person is lower still and these factors add to the objective seriousness of your offending.

24Mr Stockdale, on the first count of assault, that is the assault on Mr McCasker, you are convicted and sentenced to 11 months' imprisonment.  On the second count, that's the assault on Mr Moran, you are convicted and sentenced to 5 months' imprisonment.  I make two months of the sentence on Count 2 cumulative on Count 1.  That makes a total effective sentence of 13 months' imprisonment.  I declare that the period of 316 days pre-sentence detention excluding today be reckoned as already served.

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