Director of Public Prosecutions v Stuart
[2018] VCC 836
•8 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-02010
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW STUART |
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JUDGE: | HER HONOUR JUDGE FOX | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May 2018 | |
DATE OF SENTENCE: | 8 June 2018 | |
CASE MAY BE CITED AS: | DPP v Stuart | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 836 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D.A. Glynn | Office of Public Prosecutions Victoria |
| For the Accused | Mr J. Gullaci | Slades & Parsons |
HER HONOUR:
1 Matthew Stuart, you have pleaded guilty to one charge of causing injury recklessly and one charge of being a prohibited person in possession of a firearm. In addition you have pleaded guilty to two related summary charges, being one charge of possess a dangerous article without lawful excuse, and one charge of unlawful assault. You have admitted your criminal history.
2 The charge of causing injury recklessly and both summary offences arise out of events that occurred on 25 January 2017. The charge of being a prohibited person in possession of a firearm occurred on 26 January 2017, when police executed a search warrant on your residence and found a sawn-off shotgun concealed in a pillowcase under your couch.
3 An amended prosecution summary was tendered and marked Exhibit A. I will limit my remarks here to a summary.
4 At the time of the offending you were living in a unit in Claude Street, Seaford. The two victims, Ricky McCasker and Dylan Morse, lived in a unit in Seaford approximately 100–200 metres away from your residence. At the time you had a girlfriend, Danielle Ritchie. You were also acquainted with the co‑accused in this matter, Kevin Stockdale. McCasker knew both you and your girlfriend from around the area. In addition, Morse used to live with you, and had known Stockdale for some time.
5 As at 25 January 2017, McCasker, according to you, owed you $50. There was an exchange of text messages and phone calls between you and McCasker on this day regarding the alleged debt. McCasker denied owing you the money, and you were becoming increasingly angry. Just before 8 pm you telephoned McCasker and told him you were going to come over to discuss the debt, and McCasker agreed. He was expecting you alone. Stockdale then arrived at your unit, and you walked to McCasker’s unit together with Stockdale and your girlfriend Ritchie. You took with you a home-made whip made of PVC piping with a number of strands on it, like a cat o’nine tails. This is the basis for Summary Charge 1, possess a dangerous article.
6 The three of you arrived at McCasker’s unit and were invited in. Ritchie remained near the front door, while you and Stockdale went into the lounge room. McCasker and Morse were both in the lounge room. An argument ensued between you and McCasker over the alleged debt, which became heated. Both of you were yelling at each other. The altercation then became physical, with McCasker and Morse pushing and grabbing at you. This quickly escalated and you retaliated.
7 There was a brief physical altercation between Stockdale and McCasker, and then Stockdale and Morse. The summary in relation to those matters was tendered on the plea and marked Exhibit D. According to that summary, Stockdale punched McCasker in the stomach with an unidentified object. Morse stood up at this point and Stockdale pushed him back down and told him to sit down. As a result of this conduct, Stockdale was charged with two counts of common assault. Stockdale pleaded guilty to those two assaults and was sentenced to a total effective sentence of 13 months’ imprisonment.
8 After the assaults by Stockdale, you then hit McCasker on the arm with the home-made whip. This is the basis for Summary Charge 12, unlawful assault. McCasker initially tried to fight back, but then ran inside his bedroom and held the door closed. You continued to fight with the victim Morse. You punched Morse to the face and head about ten times, with large rings on your fingers, causing lacerations and bruising to Morse’s head and arms. This is the basis for the charge of recklessly cause injury. You, Stockdale and Ritchie then left the unit. McCasker came out of his bedroom and saw Morse sitting with his head in his hands and blood on him. McCasker called his mother and 000.
9 An ambulance was called, and Morse was taken to Frankston Hospital. An examination found bruising and abrasion to the left side of his forehead, a small superficial laceration over his left forehead, and other areas of abrasion, redness, bruising and tenderness. Morse was discharged the next morning with analgesia to be taken as needed.
10 On 26 January 2017 police attended at your home address and seized a number of items. Under the couch in the lounge room they located a Webley & Scott brand single-barrel sawn-off shotgun concealed in a white pillowcase. At the time of possessing this firearm you were prohibited from doing so. The prosecution summary states you were a prohibited person because on 18 November 2016 you were sentenced at the Frankston Magistrates’ Court on charges of being a prohibited person possessing a firearm and possessing a general category handgun, along with threat to inflict serious injury and using carriage service to menace. However as at 18 November 2016 you were already a prohibited person, and it appears you are a prohibited person because you have a prior conviction for armed robbery. You have also been subject to an intervention order in the past; however, I am unsure if that intervention order remains current.
11 You were arrested and taken to Frankston Police Station for interview. During the interview you stated you went alone with Ritchie, and Stockdale was not there. You admitted that you, “punched the fuck out of Dylan” with your rings on. You said your rings are your knuckle dusters so you can do damage. You admitted your rings caused the injury to Morse. You said your intention was to give him a “tune up”, and you believed it was justified in defending yourself against McCasker and Morse. You said you did not know the firearm was at your home, and you had not touched it. You told police you had been diagnosed with schizophrenia.
12 A victim impact statement was tendered on behalf of Ricky McCasker. It is clear he was badly affected by this incident, and it has had an ongoing psychological effect on him. The effects of this incident have remained with Mr McCasker and will continue to do so for some time to come. Morse did not provide a victim impact statement and I am told he did not attend at the committal hearing where he was required as a witness.
13 Your counsel conceded on the plea that this turned into a very nasty assault by you on Morse. In attacking him as you did, you went, in the words of your counsel, “way over the top”. He suffered bruising and abrasions and spent one night in hospital as a result of your actions.
14 Your counsel submitted the assault on McCasker was far less serious, as reflected in the charge of summary assault. I accept this. However, it still occurred in the victim’s own home, in circumstances where he had allowed you in to discuss a disputed debt of $50.
15 It was put on your behalf that this was not just about a debt. You believed that McCasker had earlier threatened to give your girlfriend a “hot shot”, and the meeting was to be not just about the debt but also the alleged threat to your girlfriend. I accept this, but in my view it makes ultimately little difference. You took a weapon, were affected by ice, attended at the victim’s own home, and the assaults occurred there. I accept that events first turned physical when McCasker and Morse pushed and grabbed at you; however, after that your actions were inexcusable.
16 It was put on your behalf that you were storing the firearm for Stockdale, and had only been given it earlier that day. There is no evidence of this, and I note in your record of interview you denied any knowledge of the firearm. There is no evidence on which I can be satisfied to any standard that you had been given the firearm earlier that day by Stockdale. I am left to sentence you on the basis that you were in possession of the sawn-off shotgun, it was not loaded, and you had no ammunition. The prosecution did not suggest or submit that you were in possession for the purpose of ongoing criminal activity or specific criminal purpose, and there is no basis for me to draw such an inference.
17
At the time of the offending you were on two community correction orders. One was imposed after you breached an earlier order made 19 April 2016. On
18 November 2016 the breached order was cancelled and you were placed on a further order until 17 May 2017. The second community correction order, also imposed on 18 November 2016, was for charges including threat to inflict serious injury, being a prohibited person in possession of a firearm, possessing an unregistered general category handgun, and possessing a prohibited weapon without approval. I am told the handgun on that occasion was in fact an imitation handgun that functioned as a cigarette lighter. Both community correction orders were directed towards your rehabilitation. This offending is a deliberate breach of those orders, and a breach of your undertakings to participate in rehabilitation and be of good behaviour.
18 The maximum penalty for being a prohibited person in possession of a firearm is 1200 penalty units or ten years imprisonment. The maximum penalty for recklessly cause injury is five years imprisonment. The maximum penalty for unlawful assault is 15 penalty units or three months imprisonment. The maximum penalty for possessing a dangerous article is 60 penalty units or six months imprisonment.
19 You have now served 498 days in custody by way of pre-sentence detention.
20 Your counsel concedes this offending is serious and requires a term of imprisonment be imposed. Your counsel further submitted that a head sentence with a non-parole period ought be imposed, with some cumulation to reflect the differing offending.
21 I turn now to your personal circumstances.
22 You are 50 years old, having turned 50 three days ago, on 5 June this year. You have a lengthy criminal history dating back to 1989. You have prior convictions for armed robbery and attempted armed robbery from 1992. I am told the weapon you had with you at that time was a steel bar. You have numerous prior convictions for carrying and possessing dangerous articles and regulated weapons. You have two prior convictions for possessing ammunition without a licence. You have numerous dishonesty priors, drug offence priors, and driving matters. Your prior convictions for violence are reasonably limited. You have priors for breaching an intervention order and unlawful assault; however, you have no priors for injury or serious injury offences. You have never been charged with using a firearm in a violent way, noting that a firearm was not used in the armed robbery or attempted armed robbery.
23 A psychiatric report by Dr Leon Turnbull dated 17 April 2018 was tendered on your behalf. A report of Dr Lester Walton dated 18 October 2016 was also tendered on your behalf. The purpose of that report was to provide additional background, as it was not prepared in relation to this matter. Dr Walton confirms that you are diagnosed with chronic paranoid schizophrenia with a parallel history of cannabis and methamphetamine abuse in recent years. It is not suggested here that your schizophrenia played any part in this offending. Indeed, Dr Turnbull states that, unlike previous instances where the schizophrenia was relevant to your offending, in this situation your motivations were straightforward, and it was probably the ice that had the major impact on your mental state. You were not psychotic or deluded, but ice likely disinhibited and amplified your underlying frustrations.
24 You grew up in Mount Waverley and you are the youngest of three boys. Your parents separated when you were twelve, and thereafter you lived with your mother, while maintaining contact with your father. You have two older brothers. One is a truck driver and remains supportive of you. The other is a police officer, with whom you have no contact. You have four children. The first two, from a relationship lasting about five years, are now in their late twenties. From another relationship you have two sons in their teens.
25 You were educated until Year 11 at Mentone Grammar, did some retail work at Dick Smith, and were a trainee manager at Young and Jackson’s in the Melbourne CBD. You were then a joiner for three years, and became a carpentry assistant, and did more than a decade of maintenance work in a local church. Since your late twenties you have been on a disability support pension.
26 You began smoking marijuana in your late teens; however, you embraced Christianity at the age of nineteen, which resulted in several years of abstinence. You then returned to marijuana use and commenced using amphetamines. It was prior to your religious conversion at the age of nineteen that you had one experience of taking magic mushrooms in a huge quantity which almost resulted in your death, and which precipitated what has been an enduring psychotic illness, now diagnosed as schizophrenia. You have never touched hallucinogens again. Over many years you have required a community treatment order under the Mental Health Act to enforce anti-psychotic therapy.
27 I was provided with a letter and report by Mr Matt Baynes. The report is dated 31 May 2018, and confirms that you have been a client of Peninsula Health Community Mental Health Service from 25 November 2008 and continuing. You have been a client of Mr Baynes since 2016. Mr Baynes confirms that you are on a disability support pension and have a diagnosis of schizophrenia, anti-social personality disorder and polysubstance abuse.
28 Both Dr Walton and Dr Turnbull note that you are particularly eloquent for a man who suffers from schizophrenia. You are of normal or perhaps higher than average intelligence. Dr Turnbull stated that you impressed as articulate and quite insightful, and you rightly acknowledged that your insights into drug use and appropriate living have not always resulted in diligent application. Dr Turnbull stated that you have a flexibility in your thinking, and can take on new information and suggestions, which was especially relevant for discussing other treatment options such as participation in Narcotics Anonymous. You expressed remorse to Dr Turnbull, stating:
“I’m sorry I did it ... I’ve lost two friends because of it ... I’m sure they were hurt and they probably have trauma and I’m responsible for that.”
Dr Turnbull found that you expressed what seemed to be genuine remorse for your victims.
29 You have been in custody now, awaiting resolution of this matter, for approximately 16 months. Whilst suffering a schizophrenic illness would generally be considered to make custody more onerous, that does not seem to have occurred in your case. You have made the best of your time in custody. The enforced abstinence has meant that you are now drug free. You have been having monthly injections of the anti-psychotic aripiprazole, and you are currently stable. You have been working in the laundry, and have obtained certificates in laundry operation, cleaning operations, and construction, all from Kangan Institute. I was provided with two urine screens that confirm you are drug free, although you are currently on methadone. Apparently you spoke to relevant authorities about your cravings, and you were placed on methadone to prevent those cravings in late 2017. It is clear you have a longstanding issue with using illicit drugs.
30 You have done three sessions with Alcoholics Anonymous. Whilst alcohol is not your problem, Narcotics Anonymous is not available in custody. The format is similar, and at Dr Turnbull’s suggestion you have participated in Alcoholics Anonymous as it is the closest available thing to Narcotics Anonymous. In a practical sense you have coped well in custody.
31 Prior to going into custody you had spent approximately the last 12 years living at the unit in Claude Street, Seaford. That is Department of Housing accommodation. I am told there is a risk that you will lose this accommodation if you are in custody for an extended time. So far, you have been able to hold onto it because of your mental health issues. I am told six‑month extensions have been granted to enable you to keep this accommodation; however, the last six-month extension has expired, and it is unclear whether more will be granted. This accommodation has been one of the key stable things in your life over the last 12 years.
32 I am told you have now reconciled with Joanne Davies, the mother of your two younger sons now aged 12 and 13. They reside in Albury. She is supportive of you now, and you have plans to marry once you are out of custody. You hope in the future to be with Ms Davies and your two sons, although where you will reside has yet to be determined.
33 I turn now to other factors.
34 It was accepted by your counsel that you were in a very different position to Stockdale. Stockdale pleaded guilty to different separate assaults, and neither of you were complicit with the other. It was conceded here that, unlike Stockdale, a straight sentence is not open here, and parity has no real application. The prosecution also submitted that this is not a situation requiring parity as such, as it is different offending, and you have pleaded guilty to entirely distinct acts.
35 The prosecution submitted that being a prohibited person in possession of a firearm is a serious offence. The weapon here was a sawn-off shotgun, which is a particularly serious kind of weapon. General deterrence is a very important sentencing consideration where possession of firearms is concerned, particularly a firearm as serious as a sawn off shotgun. Firearms threaten the peace and good order of the community. I do note that it was unloaded, no ammunition was found, and it was not suggested by the prosecution that you were in possession for the purposes of ongoing criminal activity or a specific criminal purpose.
36 However, you were on two community correction orders at the time, and one of the offences for which you received a community correction order was being a prohibited person in possession of a handgun. You received that order less than two months before this offending. Deterrence, both general and specific, are very relevant sentencing considerations, together with denunciation, punishment and protection of the community.
37 In relation to the assaults, I accept that the physical altercation was started by the two victims; however, you would not, and did not, leave. The assault on Morse is a serious example of this offence. It occurred in his own home. You were ice affected, and you had no real issue with Morse. McCasker had shut himself in his bedroom by this point, and you and Stockdale were alone in the lounge room with Morse at the time you assaulted him in the way that you did.
38 The summary assault on Mr McCasker was committed using the home-made whip; however, you have not been charged with aggravated assault on the basis you used a weapon, which is a more serious offence. I am mindful that I must not take into account circumstances of aggravation that would have warranted a conviction for a more serious offence, as to do so would be in breach of the principle or rule expressed in R v De Simoni.[1]
[1] (1981) 147 CLR 383 at 389
39 In relation to the charge of recklessly cause injury, and the summary charges, you did make admissions in your record of interview, although you sought to justify your conduct. You made no admissions to possessing the firearm.
40 I accept that you have pleaded guilty at the earliest practical opportunity. The prosecution conceded that their case changed significantly post-committal, and in the circumstances this is an early plea. You are entitled to the benefit of that plea. It shows an acceptance by you of responsibility for your conduct, it has utilitarian value, and is evidence of some remorse.
41 I accept that you have shown remorse, both through your plea of guilty and as expressed to Dr Turnbull.
42 It was not submitted that Verdins has any application here, and in my opinion it does not. The report of Dr Turnbull makes this clear.
43 Given your age and lengthy criminal history, your prospects of rehabilitation are at best guarded. It is clear that in order not to reoffend, you must comply with your medication regime and you must not use illicit drugs. Whilst you seem to have some insight into this when well and not drug-affected, you have shown limited ability to put this into practice when at large in the community. If you continue to abuse illicit drugs, you will continue to offend and find yourself back in custody.
44 Mr Stuart, you are now 50 years old, and most probably more than halfway through your life. If the remaining portion of your life is to be productive and constructive, you need to stay away from illicit drugs and continue to take your anti-psychotic medication. You have the chance upon your release to continue your relationship with Ms Davies, and be a father to your two younger sons. It is hoped you take advantage of this opportunity, and do not return to drug use and criminal activity when you are released.
45 The sentence of the court is as follows:
46 On Charge 1, the charge of recklessly cause injury, you are convicted and sentenced to 18 months imprisonment. On Charge 2, the charge of being a prohibited person in possession of a firearm, you are convicted and sentenced to 22 months imprisonment. This is the base sentence. On the summary charge of unlawful assault you are convicted and sentenced to two months imprisonment. On the summary charge of possess a dangerous article you are convicted and sentenced to two months imprisonment.
47 I direct that seven months of the sentence on Charge one, one month of the sentence on the summary charge of unlawful assault, and one month on the summary charge of possess a dangerous article be served cumulatively upon the sentence on Charge 2 and upon each other.
48 This makes a total effective sentence of two years and seven months imprisonment. I fix a non-parole period of 20 months imprisonment, being the period you must serve before becoming eligible for parole. I order that 498 days be reckoned as a period of imprisonment already served under this sentence.
49 I declare that pursuant to s.6AAA, but for your pleas of guilty, I would have imposed a total effective sentence of four years imprisonment with a non-parole period of two and a half years.
50 I will also make the forefeiture and disposal orders sought by the prosecution. I was provided with copies of those orders and I have signed those orders.
51 Is there anything further?
52 MR TEHAN: No, Your Honour.
53 MS DANIEL: Nothing further, Your Honour.
54 HER HONOUR: Thank you. Thank you, Mr Stuart.
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