Director of Public Prosecutions v Stockdale, Kevin Desmond
[2013] VCC 339
•27 March 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01934
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KEVIN DESMOND STOCKDALE |
---
JUDGE: | His Honour Judge Maidment | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15-19, 22-23, 26 Oct 2012, 13 Dec 2012, 27 Mar 2013 | |
DATE OF SENTENCE: | 27 March 2013 | |
CASE MAY BE CITED AS: | DPP v Stockdale, Kevin Desmond | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 339 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Albert | |
| For the Accused | Mr P Bourke |
HIS HONOUR:
1 Kevin Desmond Stockdale, last October you were found guilty by a jury on Charge 2 on the indictment of recklessly causing serious injury to Alan Chandler. You were found not guilty of the alternative offence in Charge 1 of intentionally causing serious injury to that gentleman.
2 You have admitted prior convictions which go back to April 1978. Amongst those convictions there are a number of offences of serious violence including a conviction for manslaughter in 1987 when you were 25 years of age. I am therefore required to sentence you for this offence of recklessly causing serious injury as a serious violent offender. That requires me to give paramount consideration to the principle of protecting the public.
3 The prosecution case depended upon evidence given by Mr Chandler at the committal proceedings. He was not cross-examined in this court because he had died in a motor vehicle accident in Western Australia in the period between committal and your trial. The evidence upon which the jury convicted you came from a number of eyewitnesses and your own explanation given in an interview with the police that was played to the jury.
4 I think it is fair to say that the evidence was not entirely satisfactory in identifying precisely what took place. The jury verdict clearly involved a rejection of your primary defence of self-defence and your secondary defence of accident which arises from the explanation that you gave to the police in the course of your interview.
5 I formed the view that the victim was involved in conduct in the day or two prior to the offence which involved aggression towards the lessee of the property at which the incident occurred and to others associated with that house. I described in the course of argument his conduct as being irritating and I sought to contrast that with his conduct being provocative. Provocation might have provided some excuse for your intervention. I think his conduct fell short of that and in my view whilst his conduct on the day leading up to immediately before your offending conduct was irritating and aggressive, it did not justify your intervention. This was not your fight and you had no business intervening. It was unnecessary for you to intervene. I accept that your intervention was a spur of the moment decision. Your assault upon the victim was unplanned and you grabbed a knife. It happened to be outside the house as you left the house to commence your intervention. However I am satisfied beyond reasonable doubt that you attacked the victim with that knife and that in the process of doing so you recklessly caused him serious injury.
6 There is of course no victim impact statement because the victim was deceased at the time of the trial. Whilst it seems that he recovered well physically from his injuries, it is to be supposed that the emotional scars would have lingered.
7 The prosecution put forward a range of appropriate sentences as involving a sentence of between three years and four years imprisonment with a period of between two and three years to be served before you become eligible for parole.
8 I think that it is fair to say that your counsel has not suggested, having regard to the nature of the offence and the criminal record that you have, that that was an unreasonable range for the prosecution to put forward. Rather, he urged a number of matters upon me in an endeavour to persuade me that whilst the head sentence might properly be within that range, the non-parole period should be adjusted so as to enable you to be released in 12 months so that the risk of you losing the house for which you have recently qualified after 11 years on the waiting list is minimised. That, as Mr Bourke put it on your behalf was really the “trump card” in the submissions that he made.
9 It is necessary to put that in context. Your criminal record is a very bad one. It goes back to a period when you were very young. You are now 50 years of age, born in July 1962. Your first series of offences was committed when you were about 15 or 16. It went from bad to worse after that, involving a number of offences of serious violence. You apparently developed a passion for motorcycles and became a member of a motorcycle club known as “The Immortals” when you were about 22 or 23. It was as a result of a falling out with members of that club that you engaged in the shooting of another member of that club which led to your conviction for manslaughter in 1987 when you were 25. You served a term of imprisonment of eight years with a minimum term of six and a half years for that offence. During the period that you were serving that sentence your mother died. Your father, I am told, had much earlier been diagnosed with multiple sclerosis. As a child you were discouraged from having much to do with him presumably to reduce the pressure upon him whilst he was endeavouring to cope with that condition.
10 You married Melinda when you were 18. You have a daughter Zoe by that relationship and she is in court. I am told that your relationship with Melinda is still good, indeed I understand she attended your trial. I do not recall her specifically but I accept that she still provides you with some degree of support. It is very clear, from Zoe's presence here, that she too provides you with a deal of support, she and her partner who is also here. Nevertheless, it seems that that relationship with Melinda did not survive the period of your incarceration. You married Sharon by whom you had three sons. That relationship broke up in about 2000. It is about that time that you had a serious motor vehicle accident.
11 You have also been involved in another series of offences of violence through the early 1990s but from about 1995 to 2002 you were trouble-free. The 2000s heralded not just the break up of your marriage and the serious motor vehicle accident but also the beginning of a long period during which you were living an itinerant life between the couches or spare beds of friends, without any settled abode and without any settled way of life.
12 Not surprisingly perhaps, in the 2000s there were a number of offences of possession or use of drugs of dependence, amphetamine seems to be a drug of choice and offences of driving whilst your authorisation was suspended and other driving offences. Perhaps still troubling me though there were offences of possessing controlled weapons and as the learned prosecutor rightly pointed out, in 2004 you were convicted of intentionally causing serious injury for which you received a sentence of two years and nine months imprisonment. That offence involved your use of a knife in a train. That is troubling as well as the offences which involved your unauthorised possession of controlled weapons.
13 However as your counsel pointed out, since the events which led to this conviction, that is the events of 16 September 2010, you have not been involved in any other offending conduct. Mr Bourke rightly reminded me that there had been an incident which gave rise to your arrest I think, a domestic violence situation but that did not result in any charges being brought against you. So save for that which he was quite right to mention, you have been out of trouble since September 2010.
14 It is also relevant to note that in the period between December 2009 and March 2010, you were engaged in trafficking in cannabis. On 22 March 2010 you were also in possession of amphetamines. Those offences for which you were on bail when the offence of recklessly causing injury, the subject to this indictment was committed, were hanging over your head at that time. No doubt with the prospect that you would have to serve imprisonment they continued to hang over your head until they were dealt with on 1 April 2011. You were sentenced to a period of 12 months imprisonment with a non-parole period of six months.
15 Apparently because of the matters before me hanging over your head, you were not granted parole at the conclusion of the six month minimum term but served another two months before you were granted parole.
16 This matter has been hanging over your head now for two and a half years. Whilst you pleaded not guilty and were found guilty by the jury in October of last year, it is fair to say that you were found not guilty of the more serious charge. Whilst you cannot claim credit or a discount for pleading guilty to this offence, it cannot be said that your defence of the indictment was unmeritorious and I think it is to your credit that you have not committed any other offence in the period between September 2010 and today's date.
17 You have been in custody on this matter for six days only. I granted you bail in October last year to enable you to give yourself your best chance of taking on the house that you have been offered. You have taken that opportunity with both hands and have apparently made a home for yourself at those premises.
18 The other advantage that that has given you is that it has enabled you to have your two younger boys come stay with you and they have been doing that, I am told, on a regular basis at weekends. As I understand it, you also maintain contact with your older boy Joshua. These are matters which Mr Bourke relied upon in support of the proposition that these factors have given you the capacity to demonstrate that you can turn your life around and that so far you have demonstrated that you are capable of doing that. He has urged me to allow you to return to that property it at all possible. I am told that beyond a sentence requiring you to serve a period of 12 months there would be a very real risk that you would lose the property. We have not heard any evidence from any official from the housing department to support that proposition. I am entitled to accept it from the Bar table. It has not been disputed by the prosecution.
19 The prosecution urged me to give proper effect to the principle of protection of the public. That arises by statute because you are a serious violent offender. In discussion you heard me seek guidance of both counsel on how that might best be achieved in your particular case. One argument is that by promoting your rehabilitation, the general public are better protected because it is a long term solution and if you can stay out of trouble in the future, the public will not be troubled by you.
20 If on the other hand I was to take the view that the public was best protected by imposing a substantial term of imprisonment with a relatively long period of incarceration before you become eligible for parole, you would then be at risk of being back in the position that you were in, couch surfing if I can use that expression, and mixing with your old cronies who might be willing to offer you a bed or a couch from time to time without the kind of support structures that you are in a position to build when you have your own home and without the incentives of seeing your children regularly and leading a more normal settled life with family members around you.
21 The protection offered by locking you up only lasts so long as you are locked up and if you are to be thrown back into the community again without the support structures that I have just referred to, it seems to me there is a greater long term risk than in your particular case facilitating your rehabilitation as best I can.
22 I am told that quite apart from staying out of trouble, you have been attending Men's Shed. You have not been receiving knocks on the door from your old cronies, and you have been keeping yourself to yourself as I understand it. At least that is the short hand way of putting what I understood the submissions made on your behalf. You seem to take a good deal of pride in the home that you have sought to build and I am impressed by the proposition that in your particular case maximising your prospects of hanging on to that house provide a better protection to the general public in the longer term than effectively depriving you of that opportunity.
23 It seemed to me that the range put forward by the prosecution was entirely reasonable in all the circumstances. This is quite a serious case of recklessly causing serious injury and although the long term physical consequences for the victim were not nearly as serious as many other cases of similar kind, it is nevertheless to be regarded as a serious offence. The sentence I would generally have regarded to be appropriate would be something in the order of two years and nine months which as the prosecutor pointed out is pretty much the range that is to be deduced from the sentencing statistics. However because of your record I think a more severe sentence than that is called for. Ordinarily in those circumstances, I would have regarded a non-parole period significantly more than 12 months being appropriate and I think you understand the discussion that we had.
24 The other advantage from a public protection point of view that arises from acceding to your counsel's submission is that you will be on parole for a considerable period of time. That is like having a suspended sentence hanging over your head because you can be called back to serve the rest of your term at any time you are in breach of parole conditions or in circumstances where you commit any further offence. In that sense, you are being punished because you still have that Sword of Damocles hanging over your head and it is clear on the authorities that a sentence of imprisonment, the head sentence is to be regarded in all respects as a term of imprisonment and punishment as such.
25 Were it not for the housing situation and all of the factors that I have just endeavoured to outline, I would be forced to impose an orthodox non-parole period commensurate with the kind of head sentence that I would have regarded as appropriate.
26 It was urged upon me that you are remorseful. It was submitted that I should have regard to your demeanour during your interview with the police. I did not find your explanation entirely convincing and I am not sure that I was entirely convinced by your show of emotion. That said, I am prepared to accept that you are remorseful. I think that there was a degree of self-preservation in your dealings with the police. And being an “old lag” I think that you handled yourself during that interview with self-preservation in mind rather than demonstrating remorse. It is true that you did express remorse during the interview and I do accept that you are remorseful. That also is important in determining your prospects for rehabilitation. With a record like yours and including fairly recent offences, one cannot be other than guarded in one's assessment. But I think that there is encouragement to be gleaned from the fact you stayed out of trouble for the last two and a half years. As I say, I think that the home that you have now obtained gives cause for optimism and I think your prospects of rehabilitation are reasonable and deserving of encouragement.
27 I am persuaded that it is a sound investment on behalf of the community to accede to the submission of your counsel.
28 I have to ensure in my sentencing of you not only that I punish you and denounce the conduct that you engaged in, I need to deter others and deter you from committing offences of this kind in the future as well as pay proper regard to protection of the public.
29 I am ready to impose sentence upon you, would you please stand.
30 For the offence of recklessly causing serious injury for which you were convicted, I convict you and I sentence you to imprisonment for a period of three years and six months. I order that you serve a period of 12 months before you become eligible for parole.
31 I declare that six days pre-sentence detention are to be reckoned as time served on the sentence that I have imposed and deducted from the time that you will actually serve. I order that those facts be noted in the records of the court.
32 I also note that I have given consideration to the fact that you served more than the minimum non-parole period in relation to the sentence imposed upon you in April 2011. I have given consideration to the fact that had all of these matters been dealt with at the one time, that a total sentence would have had to give proper effect to the totality principle. There is no precise science in working out how best to factor those matters into consideration but it seems to me they are all relevant to the instinctive sentences that I have to engage in, in determining what is an appropriate outcome for you. There is of course no guarantee that even with this sentence that you will retain the house that you presently have. It is to be hoped that a way will be found and the housing department will be persuaded to allow you to keep it. I have no power to make any order in that regard but to the extent that my sentencing remarks here today might assist you in that regard in what might be a more lenient than usual exercise of discretion on their part, then I hope that they will be considered favourably.
33 I have to declare also that in respect of this offence I have sentenced you as a serious violent offender.
34 Any other orders that I need to make?
35 MR ALBERT: No, Your Honour, that covered it.
36 HIS HONOUR: All right. I think the order will be drawn up very shortly. Take a seat for a moment we will provide the order to the custody officer. I thank counsel for their assistance.
- - -
0
0
0