Director of Public Prosecutions v Stubley

[2016] VCC 1634

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 16-00832

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHERYL ANNE STUBLEY
JASON RODNEY RADFORD

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	4 November 2016
CASE MAY BE CITED AS:	DPP v Stubley
MEDIUM NEUTRAL CITATION:	[2016] VCC 1634

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. Hayward
For Accused Stubley	Ms K. McFarlane
For Accused Radford	Ms K. McFarlane

HIS HONOUR:

1Cheryl Anne Stubley and Jason Rodney Radford, you can stay seated for the time being.  You have each pleaded guilty to an indictment charging you both on Charge 1 with aggravated burglary, and you, Radford, on Charge 2, with an offence of recklessly causing injury.  Both of those offences occurred on
4 October 2015.

2You have also each admitted related summary offences.  You, Stubley in Charge 4, an unlawful assault upon Ricky Connor, and in Charge 6 an unlawful assault upon Courtney Sherry.  And you, Jason Radford, in Charge 6, an unlawful assault on Courtney Sherry.

3You have each admitted prior court appearances or convictions.  And in your case, Radford, your offending record goes back some way. There are a number of offences, but none of the offences can be said to be anything like or serious as the offences on the indictment.  And the same, to a more limited extent, may be said about your criminal record, Stubley.

4The prosecution tendered and relied upon a summary of prosecution opening for trial. That was read to the court and tendered, marked Exhibit A.  I incorporate that document in its entirety into these reasons for sentence.  I note that it contained an amendment to reflect the amended charge on the indictment, omitting reference to a hammer as being one of the weapons that was taken to the site of the aggravated burglary, the subject of Charge 1.  So that the only weapon that was alleged to have been taken and particularised in the charge is a pool cue.

5The summary of prosecution opening was accepted as an accurate outline of the facts on which I can proceed to sentence.  There was, of course, an incident which preceded the offending conduct, and which seems to have provoked the course of conduct that each of you embarked upon in committing those offences.

6When each of you were interviewed, you expressed remorse and regret for your conduct.  I note, and as I noted in discussion with your counsel during the plea, that you, Stubley, had indicated to police words to the effect that if the police did not do anything about the conduct which you were then complaining to them about, involving conduct towards your daughter, that you were going to take it into your own hands.  It is said on your behalf during the course of the plea by your counsel that this was just a remark in passing out of frustration.  But it is exactly what you did.  Indeed, you went to the premises that was subsequently burgled that very night, and seems to me to be plain that you were intent upon doing exactly what you told the police, namely taking the law into your own hands.

7You had ample opportunity to consider and reconsider your expressed intent to take it into your own hands between 30 September and 4 October, when the offences were committed.  And it seems to me to be plain that you determined upon that course even upon mature reflection. 

8You, Radford, were under the influence of alcohol, although it was not suggested that that was any mitigation, and it is not.  It may have given you some Dutch courage, but it cannot be said in any way to mitigate your offending conduct.  It is said, Stubley, that you suffer from severe health problems, and I have no doubt that you do, and I accept that you do.  But it did not stop you going to the premises that were ultimately the subject of the burglary on
30 September, nor did it stop you going to the premises and participating in the offending conduct on 4 October armed with a pool cue and ready to participate in an offensive way with that pool cue. 

9As the prosecution submitted, this was part of what appears to have been a "tit-for-tat" course of conduct between you and at least one of the victims of the aggravated burglary.  That is by no means a matter of mitigation.  What it does point out is the need for the courts to recognise that Parliament has deemed the offence of aggravated burglary to be a very serious one, and that it is necessary, as the Court of Appeal has made clear, to treat general deterrence as being a significant sentencing consideration, as well as taking into account the maximum term of imprisonment, namely 25 years.

10This kind of confrontational aggravated burglary is serious, and it requires the court to mark the seriousness of the offending by imposing appropriate terms of imprisonment, and to impose terms which have the capacity to deter others from engaging in similar conduct. 

11Turning to matters personal to you, your counsel provided me with an outline of plea submissions, which is Exhibit 1.  That was supplemented originally by a report from David Bruce, psychologist, upon you, Mr Radford.  That report is dated 20 September 2016, along with references from your supervisor at Flavorite Tomatoes, and from Dion Tantey as to your participation with the Fortuna Soccer Club. 

12You, Ms Stubley, were 43 years of age at the time of the offending, 44 years of age now.  You were raised in Adelaide and Morwell.  You and Mr Radford have been involved in a relationship for eight years or so.  You, Ms Stubley, have three children, Bobby-Jay aged 26, Joshua aged 17, and Zachary age 14.  Both Joshua and Zachary live at the family home.  You have four grandchildren, and you also have been assisting in the caring for your father, who is 89 years of age, I am told, and suffers from dementia.  That care involved you visiting Ballarat on a weekly basis after your father had discharged himself from the Ballarat Base Hospital.

13It seems that you had been employed regularly up to May 2009, when you sustained a serious injury as a result of a fall from a balcony. You continue to suffer from the effects of the severe fractures that you incurred on that occasion. You are the subject of pain management, as well as ongoing treatment for not just the original conditions, but what has flowed from those original conditions, including, it seems, infection.

14You, Mr Radford, were 43 at the time of the offending, and now age 44.  You were raised in Morwell.  You have three children, and have acted as stepfather to Ms Stubley's children, and indeed, grandfather figure to her grandchildren.  You attended school until Year 10, then commenced construction work, and have been employed, apparently, as a labourer since, and had been working as a crop worker at Flavorite in Warrigal. 

15It is said that you have had issues with alcohol, and with drugs.  But the report from the psychologist opines that you are not characteristically an angry man.  I am told that you have some concerns about your health currently, arising from symptoms that indicate the advisability of undergoing a gastroscopy and/or a colonoscopy. That investigation has not yet occurred.  As to whether it may reveal anything sinister is a matter of speculation at this time. I am not able to act upon the proposition that you are likely to have any serious medical condition arising from the symptoms that you have exhibited thus far. 

16It was pointed out to me that the offending conduct arose from treatment by one of the victims of the aggravated burglary, and your daughter's former partner on 29 September 2015, and that you acted, both of you, out of frustration.  I raised the question with your counsel yesterday as to whether you had made any application for an intervention order to allay the fears that you apparently had for your own and your family's safety at that time. It is apparent that you did not take that step until after you had taken the law into your own hands and engaged in this offending conduct.

17You both entered pleas of guilty after a committal, after negotiations with the Office of Public Prosecutions. I give you full credit for your pleas.  It saves the community the cost of a trial, and saves the witnesses the inconvenience of having to attend and give evidence. It reflects an acknowledgement of criminal responsibility.  It is also consistent with remorse, and I accept that each of you are now remorseful, you expressed that to the police, and I accept that you are now, upon reflection and in the cold light of day, remorseful for your conduct.

18During the course of the plea hearing, it was submitted that I should consider each of you for a community correction order.  I indicated that that did not seem to me to be an adequate response to offending conduct of this nature, and the prosecution submitted accordingly.

19Before I went to impose sentence, your counsel invited me to permit some further investigations to be made to produce evidence as to what was suggested to me then were apparently autistic symptoms suffered by your two sons.  I permitted the matter to be adjourned so that those enquiries could be made. Not only was material submitted concerning the intellectual and educational capacities of your two sons, and about their mental health, and physical health generally, but also a significant body of further evidence as to your own health and your ongoing treatment for the conditions that flowed from the serious accident that you had in 2009.

20I have been through that material with care, I was also provided with some certificates, which suggest that you, Stubley, have made use of your time whilst you have been on remand, and some further information supporting the proposition that with each of you being incarcerated, and particularly you,
Mr Radford, as the principal breadwinner, being incarcerated, the likelihood is that you will lose your home as a result of your inability to maintain mortgage repayments. 

21It was submitted that if you, Stubley in particular, were imprisoned, that the hardship suffered by your children would be such that I should regard it as exceptional, and treat the sentencing exercise as falling within that exceptional category, which is referred to in the case of Markovic, and other cases which support that extension of mercy in the rare cases to which that principle applies.

22It was urged upon me by your counsel, with considerable force, I might say, and I do not mean that critically, that this was a case that falls within the exceptional circumstance principle.  On the other hand, Mr Hayward for the prosecution pointed out that the authorities, including Markovic, readily acknowledged that considerable hardship is frequently suffered by family members as a result of appropriate incarceration of persons convicted of serious crime, that such a consequence is almost inevitable in many cases, and the courts should not shrink from imposing appropriate sentences on that basis alone.  

23I have no doubt that your absence, Ms Stubley, will be sorely missed.  However, I note that you have a daughter. She has children of her own and other responsibilities, but nevertheless she is available to assist.  The matters touching upon the intellectual capacities and health, mental and physical, or each of your sons, would seem to me to be manageable.  I am not persuaded that the circumstances are such as to fall within that wholly-exceptional case where the principle referred to in Markovic applies.

24However, there is no doubt that the circumstances as a whole need to be taken into account in a general sense, having regard to the effect that it will have upon you in serving your sentence.  And to some extent, also you Mr Radford.  It will make, you in particular Ms Stubley, make your time in custody harder, and more difficult to bear.  And I take that into account.

25Likewise, I take into account that your ongoing symptoms, your health problems, physical health problems, and to some extent your depression, will have a significant bearing upon your capacity to deal with your period of incarceration.  And I have approached sentencing very much those matters in mind, and I propose to tailor sentences which are considerably below that which would otherwise be appropriate for what, in my judgment, are serious examples of aggravated burglary, and to some extent, the recklessly causing injury which flowed from that aggravated burglary.

26I am of the opinion that a sentence which would enable me to incorporate a community correction order would not be appropriate.  I take the view that no sentence other than a term of immediate imprisonment is required to meet the demands of appropriate punishment, denunciation, and in particular, general deterrence.  Looking at your backgrounds, looking at your prospects of employment in the future Mr Radford, and looking at the nature of your criminal records, I would regard your prospects of rehabilitation as being good.  However, individual deterrence is not to be ignored in the assessment of an appropriate sentence. 

27I am conscious of the need to impose no greater sentence than is necessary to meet the sentencing considerations that I must have in mind, including the need to facilitate your rehabilitation.  And I must also ensure that the sentence that I impose does not involve any double punishment, and the sentences that impose upon each of you are on a par with one another.  In other words, that I do not impose sentences upon each of you which are - reveal a disparity, such as would lead to any justifiable sense of grievance between the two of you.

28However, there is a difference, although I acknowledge the uncertainty that you suffer from presently, Mr Radford, as to your health concerns.  There is no doubt that the health issues of you, Ms Stubley, are very significantly greater than that of Mr Radford. Also it seems to me, the impact upon separation from your children will be greater than that on you, Mr Radford.

29The effect of losing your home, of course, will affect both of you.  But it seems to me that there is some difference in the length of the sentences that is justified by, and indeed required by, the different circumstances that apply to each of you individually.

30I have been referred to the various authorities, which it is submitted I should take into account at arriving at a sentence that is in accordance with current sentencing practice.  I have examined those cases, and endeavoured to identify what seems to me to be current sentencing practice.  I might say that the sentences that I have imposed are somewhat lower than what I would regard as being the normal sentence for this type of offending conduct, having regard to the various matters that have been put before me in mitigation.

31Balancing all those considerations, I am now ready to impose sentence upon you.  Would you please stand, you Ms Stubley, and you Mr Radford?

32Cheryl Anne Stubley, in relation to Charge 1 on the indictment, I sentence you to imprisonment for a period of two years and four months.  In relation to Summary Charge 4, I convict you and sentence you to a period of imprisonment of one month.  In relation to Summary Charge 6, I convict you and sentence you to imprisonment for a period of one month. 

33I order that the one-month sentence of Summary Charge 6 be cumulative upon the two years and four months that I have imposed on Charge 1, making a total effective sentence of two years and five months' imprisonment.  And I order that you serve a period of 18 months before you become eligible for parole.

34I declare 11 days of presentence detention as time to be reckoned as served on the sentence that I have imposed, and deducted administratively from that sentence, and order that that matter be noted in the records of the court.

35But for your pleas of guilty, I would have sentenced you to a total effective sentence of three years and three months' imprisonment, with a non-parole period of two years and two months.

36You, Jason Rodney Radford, on Charge 1, I convict you and sentence you to imprisonment for a period of three years.  On Charge 2, I convict you and sentence you to imprisonment for a period of six months.  On Summary Charge 6, I convict you and sentence you to imprisonment for a period of one month.  I order that two months of the sentence on Charge 2 on the indictment be served cumulatively upon the sentence on Charge 1, making a total effective sentence of three years and two months' imprisonment, with a non-parole period of two years.

37I order that presentence detention of 11 days be treated as time 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 matter be noted in the records of the court.

38But for your pleas of guilty, I would have sentenced you to imprisonment for a period of four years and two months, with a non-parole period of two years and nine months. 

39I make the orders for forfeiture in accordance with the draft which I have been provided in each case.  I order that you submit to the provision of a forensic sample.  That will involve you being approached whilst you are serving your sentence by an authorised officer, who will request a scraping from the inside of your mouth, and if you provide that sample of your DNA in that way, that will be the end of the matter.  If however you fail or refuse to comply with the request when made, the officer will be authorised to take blood, and may use reasonable force to obtain the sample of blood.  I am sure that neither of you would put the officer to that trouble.

40Are there any other orders that I need make?

41MR HAYWARD:  No, Your Honour.

42MS MCFARLANE:  The only other matter is to reflect in the records the custody management issues ‑ ‑ ‑

43HIS HONOUR:  Yes, thank you for that, yes.

44MS MCFARLANE:  In relation to Mr Radford, and in particular,
Ms Stubley.  I note that she did not have her medication yesterday ‑ ‑ ‑

45HIS HONOUR:  Yes.

46MS MCFARLANE:  ‑ ‑ ‑ by the time she got back to Dame Phyllis it was
8 o'clock.

47HIS HONOUR:  Yes, well look I will do that.  I think it would be of assistance if you would assist my associate to draft what needs to go into the order.

48MS MCFARLANE:  Yes, Your Honour.

49HIS HONOUR:  To ensure that the authority is properly informed, all right?

50MS MCFARLANE:  Yes, Your Honour.

51HIS HONOUR:  But I will certainly make that order.

52MS MCFARLANE:  Thank you, Your Honour.

53HIS HONOUR:  Yes, thank you.  All right.  Thank you, yes.  Yes, I will rise for a few minutes.

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