Director of Public Prosecutions v Studd
[2018] VCC 697
•16 May 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 17-01434
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CRAIG STUDD |
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| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 May 2018 |
| DATE OF SENTENCE: | 16 May 2018 |
| CASE MAY BE CITED AS: | DPP v Studd |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 697 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty – two charges of common assault – one charge of threat to inflict serious injury – one charge of causing serious injury recklessly – no prior convictions – attack on elderly neighbour – accused’s knowledge of the victim’s historical sexual offending against children – mistaken belief that his children were in danger – excellent prospects of rehabilitation – strong family support – delay
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:
Sentence:Community correction order for a period of three years, with 300 hours of unpaid community work; supervision; anger management course, and a fine of $3,000.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Hill | Solicitor for Public Prosecutions |
For the Accused | Mr D. Hallowes SC (Plea) Ms K. Da Costa (Sentence) | Doogue & George |
HIS HONOUR:
1Craig William Studd, you have pleaded guilty to one charge of common assault on 7 May 2016 and to charges of common assault, threatening to inflict serious injury and recklessly causing serious injury on 22 May 2016.
2The maximum penalty for common assault and threatening to inflict serious injury is a term of imprisonment of five years. The maximum penalty for recklessly causing serious injury is a term of imprisonment of 15 years.
3I turn to the circumstances of the offending.
4In May 2016, you and your family lived in Melbourne’s northern suburbs. This had been your family home for approximately ten years. The victim in this matter lived on the same street as your family. He lived on his own, and that address had been his home for the previous 16 years. The victim was awaiting a hip replacement operation, and consequently, was experiencing difficulties with his mobility.
5Sometime in 2015, you became aware that the victim had prior convictions for offending against children. How you came into possession of this information was not made clear to me on the plea. The victim had, indeed, served terms of imprisonment for offending against children, but had been released having served his sentence and was living back in the community and complying with his obligations under the relevant legislation.
6On Saturday 7 May 2016, the victim walked his dog down the street. As he returned home, you approached him, called him a "paedophile dog", and told him not to ever walk past your house again. He continued towards his home, and as he did so, you pushed him from behind. This is Charge 1, common assault.
7At 5:40 pm that same day, you contacted the local police station, raising concerns about the victim, asserting that he would stand on the corner of the street and stare into the rear yard of your house whilst your children were playing in the backyard. You told police you knew that he was a paedophile, and you expressed your concern for your children.
8The victim’s hip replacement operation took place on 9 May 2016. It was successful, and, after a few days of rehabilitation treatment, the victim returned home.
9On 22 May, around lunchtime, the victim was using his ride-on mower, firstly around the boundary of his property and then along the boundary of council land. As he headed towards his house, the mower lost traction, and the victim got off the mower to inspect it.
10You then approached him, yelling and screaming at the victim words to the effect of, “I don’t want you mowing the lawns outside while I’m in front of my place.” You demanded that the victim return to his home. The victim explained that he could not move the mower as it was stuck. After further yelling, you grabbed the victim by his jumper, causing him to fall to the ground. Whilst on the ground, you grabbed his jumper and punched him to the top of his chest, near his throat. You had your right knee on your victim's left thigh. This is Charge 2, common assault.
11You were demanding that the victim provide assurance that he would move elsewhere, and whilst you were making these demands, you kept lifting him up by the jumper and pushing him back into the ground. The victim repeatedly told you that you were hurting him. You then threatened that you would return with some mates and you would do more than just hurt him, and that your friends would pay the victim a visit if he did not move. This is Charge 3, make threats to inflict serious injury.
12You then stood up, and as the victim still lay on the ground, you kicked him in the left thigh. This kick of yours dislodged the replacement hip from its socket, causing the victim immense pain. You then tipped the mower onto its side and returned to your property, leaving your victim lying on the ground in evident and indeed agonising pain. As the victim stumbled to his feet, with his crutches, he managed to right the mower. You took photographs of the victim.
13At 2.16 pm, you again made a complaint to the police regarding a suspicious male - this was the victim - standing on the corner of the street. You alleged that the male was watching your son whilst he was playing on the trampoline, and police attended shortly thereafter.
14When police attended, you made complaint about the victim’s behaviour, repeating that he had been staring at your son. You told the police that you believed the victim was a paedophile, and that the whole street knew of this.
15The victim was conveyed to hospital for assessment. Examination revealed that the victim has sustained a fracture in the femur around the hip replacement. He required corrective surgery.
16You were arrested on 7 June 2016 when you attended at the local police station by appointment. In that record of interview, you denied any wrongdoing and you sought to paint the victim as the aggressor, claiming that you acted merely in self-defence. You denied threatening the victim, you denied yelling at the victim, you denied screaming at the victim. You denied pushing over the ride-on mower. You denied seeing him fall to the ground, and you denied kicking to him or doing anything to him. That record of interview quite simply contained a tissue of lies.
17You were charged on 29 March 2017, nearly ten months after your record of interview. A plea of guilty to appropriate charges was indicated early on in the proceedings. An application for summary jurisdiction was refused, and the matter was originally listed for plea in this court on 23 November 2017, but was adjourned to 11 May 2018. Having heard submissions from counsel, I regard your plea as being entered at an early, if not the earliest, opportunity.
18The victim impact statement of the victim was tendered on the plea as Exhibit 3, and it was read out in court by the learned prosecutor. The victim stated that after your attack, he could not walk for eight to nine months which had ongoing impact upon his general fitness and upon his chronic asthma condition. He describes the pain at the point of the blow as being "unbelievable", and he put it on a scale of 50 out of ten. He needed replacement surgery, and was still in a lot of pain 14 months after the assault. In addition, he spoke of his constant fear and apprehension that you will jump out and attack him. He has become more isolated and is always looking over his shoulder. He is scared in his own home and describes that as a "bad way to live". He describes himself as frightened and emotionally drained with the realisation that his only choice is to sell up and leave the area. On the plea, I was informed that he had, in fact, moved to another neighbourhood.
19I turn now to your personal circumstances.
20You were born on 15 October 1974 and are now 43 years of age, and were 41 at the time of the offending. You were raised in the suburb of Reservoir by your parents John and Dawn, and you have one younger brother, Rowan. You grew up in a loving family environment where you were encouraged in your every endeavour. You are still very close to both your parents and to your brother.
21You attended local schools and left secondary school after completing Year 11. You then began an electrical apprenticeship, successfully completed in 1995 when you were aged 21. There followed continued employment in the electrical industry for the next 20 years, including 11 years as a self-employed electrical contractor, with you being the director of your own firm. In 2015, due to a chronic work-related back injury, you made a career change. You established your own business distributing and managing skip bins around the metropolitan Melbourne area. You are the sole owner of this business.
22You, and your wife, Kim, have been in a stable, supportive and loving relationship for 14 years. You have two children; a 12 year old daughter and a 10 year old son. You bought your property in 2005 and built your family home.
23A collection of references was tendered on your behalf; from your wife, parents, family and business friends. I have read them all. They speak emphatically of your good character, of your work ethic, and particularly of your role as a father. They also speak of your current distress.
24You have been determined to provide for your children the same loving family environment that was given to you by your parents. You would get up early in the morning so as to finish a working day in time to be able to pick up the children from school, and to have a family dinner. You have always been present for your children, your family, your friends and your community. Indeed, up until this offending, you had lived a life of which you could be proud.
25Your wife in particular speaks of your remorse and of the grave consequences that are the direct result of how you managed your interaction with the victim on these occasions. She states, “Craig has transformed from a funny, talkative, competent man to depressed, ashamed, vulnerable and defeated, and he is attending regular visits to his counsellor to deal with these emotions.”
26An intervention order has been in force since June 2016. I am told the family home was sold in 2017, and you, with your family, have moved from the area.
27A report from Dr Mathew Barth, psychologist, was tendered on the plea as Exhibit 5CWS. Dr Barth administered a range of psychometric testings tools and was of the opinion that notwithstanding your feelings of stress and anxiety over these court proceedings, you would not currently meet the criteria for any mood disorder, anxiety-related disorder, or adjustment disorder.
28In terms of anger management issues, Dr Barth noted your reported disavowal of the use of violence against others, and the premium you place upon respectful relationships with others. You told Dr Barth that this offending was at odds with your own values, and that you prefer to deal with conflict through careful discussion, and you did not view violence or aggressive behaviour as being justified under any circumstances. I note that this accords with observations in many of the references that have been provided to me.
29The main issue identified by Dr Barth in his assessment of you was your limited emotional awareness. Dr Barth stated that:
"Despite being of sound intelligence, he is not particularly accustomed to focusing on his emotional experiences. Hence, on the occasions when he experiences an intense emotional reaction to life stressors, he feels as though his emotions change rapidly which overwhelms him. Moreover, Mr Studd holds strong views on a range of social issues, and despite his good social skills, he finds it surprisingly difficult to express his emotional needs appropriately."
Notwithstanding these issues, Dr Barth could detect no underlying propensity for violent behaviour on your part.
30Dr Barth further identified that –
(i) Your current involvement with the legal system has been very upsetting for you;
(ii) You experience a genuine sense of remorse as a result of these matters;
(iii) That in recovering from these events, you enjoy the close and ongoing support of your wife and your family;
(iv) There is no evidence of any anti-social tendencies on your part;
(v) You have a stable history of engagement in work and in community activities; and
(vi) There are no indications of behavioural pathology that would act as potential criminogenic factors to precipitate any further offending.
31He concludes that provided you can access psychological treatment to improve your emotional awareness and to assist you in coping with the stress you have experienced from the current matters, there will be genuine grounds for optimism regarding your prospects in the community.
32There was also tendered on the plea a report from Marc Lezon, psychologist, as Exhibit 6CWS, who has been your treating psychologist over the past 12 months.
33The clinical work that you have been undergoing with Mr Lezon has included discussion of anger management and conflict resolution strategies, and strategies for managing your anxiety. Mr Lezon finds it difficult to imagine you as an angry or violent person. Significantly, in my view, Mr Lezon writes that:
"By focusing on becoming more aware of his emotions and thoughts, he is better able to handle feelings of anger and better able to incorporate strategies such as walking away and/or reflecting on the importance of this issue before any escalation can take place."
34I turn now to the submissions of counsel.
35Ms Hill, learned counsel for the prosecution, made clear that it was not accepted that the victim had stopped on either occasion to look at your children. The prosecution did not concede that there was any risk presented to your children by the actions of the victim, nor was there any excuse for your behaviour. I sentence you, Mr Studd, on the basis that the victim acted at all times in a completely law-abiding manner and had done nothing to bring about your actions.
36Ms Hill fairly conceded that there had been an element of delay in the bringing of proceedings, and that such delay has had an impact upon you. However, she submitted that general deterrence must loom large in the sentencing exercise. She pointed to recognised judicial intolerance of individuals taking the law into their own hands, and that is where the gravity of this offending lay.
37She submitted that an aggravating feature of the second attack was that your victim was on that occasion targeted by you. She submitted that any sentencing disposition must include a custodial element. She conceded that, on instructions, a sentence combining a term of imprisonment and a community correction order would be within my sentencing range.
38On your behalf, Mr Hallowes' primary submission was that the sentence imposed should not involve a term of imprisonment.
39In support of this submission, he urged upon me the need to place your acts within a context. Whilst accepting that objectively, your assaults upon your victim were unprovoked, they were not, he said, without some sort of subjective reason. Your actions should not be seen as the acts of a vigilante. They were not driven by general malice against child sex offenders, but rather, were driven by a genuine but mistaken perception that your children were at risk from the victim, and that you needed to take action to protect them.
40He developed that submission at my invitation by identifying that in 2015, you had learned, in broad terms, of the victim’s prior offending. On 7 May 2016, you saw the victim stopped on the street and you jumped to the conclusion that he was preying upon your children: on that day, you rang the police to express your concerns. On 15 May, I was told that you had bought some plants so as to obscure any view into your yard that the victim could have from his property. On 19 May, your home was burgled. This was a distressing violation of your family's safety and security which you felt keenly, and which only increased your sense of being under siege and the perceived need for you to respond to any further potential threats. Such was the immediate emotional background, he submitted, to your assault of your victim on 22 May.
41He acknowledged that the charge of recklessly causing serious injury was the most serious charge that you faced. However, he submitted that having regard to the circumstances, being a kick to the thigh whilst your victim lay on the ground, it was open to me to find that your offending lay at the lower end of seriousness for offences of this kind. He submitted that the kick was not a targeted blow.
42He conceded the enduring impact of your offending upon your victim.
43He pointed to your plea of guilty, which he submitted should be viewed as entered at the earliest opportunity once the charges had been finalised. Such a plea attracts not only the utilitarian benefit of saving the community and witnesses the time and cost and trauma of a trial, but also is an indication of your remorse. I agree with that submission.
44He submitted that you are now genuinely remorseful for your actions, which have not only impacted upon your victim but have also brought great distress and indeed, disruption upon your family, for which you and you alone bear the responsibility. I accept that you feel both ashamed and a genuine and developing remorse for your actions, and the impact your actions have had both on your victim and on your family.
45He submitted that I should give appropriate weight to the delay in this matter, and to its undoubted adverse impact upon you. I agree with that submission and accept the content of Mr Lezon's report in this regard.
46He submitted that, in view of your antecedents and your personal history, and in light of your continued, long-standing family support, your prospects for rehabilitation were excellent. I agree, again, with that submission.
47He pointed to the fact that you had paid $3,500 for the damage that had been caused to the mower.
48He rightly submitted the principles of general deterrence, denunciation, and just punishment have primary relevance to the sentencing task. The need for specific deterrence, he submitted, is greatly diminished if not entirely eliminated, in view of the situational nature of the offending and of your response to being charged.
49Mr Studd, it is as a result of decisions made by you on two separate occasions that you now fall to be sentenced for the charges on this indictment.
50On 7 May 2016, you sought to prevent the victim from walking past your house in the future by threats, by hurling abuse, and by physical violence. Two weeks later, on 22 May, the victim was mowing his lawn on the boundary. On this occasion, in addition to threats of mob-handed physical violence if the victim did not leave the area, your use of physical force culminated in you kicking your victim whilst he was lying on the ground.
51It is clear from the threats and the insults that you hurled at the victim that you wanted to confine him to some sort of house arrest. It is clear that you hoped that he would leave the neighbourhood so you and your family could live free from any imagined risk that he posed. You believed, so I am told, that he had looked at your children. Let me tell you, Mr Studd, that whatever justification your imaginings led you to have for your actions, there was in fact no such justification. At no stage did the victim provide you with any reason for your behaviour. At no stage was the victim doing anything other than simply walking his dog and mowing his lawn.
52Our state, and our community, is ably and at times valiantly served by our police force. It is they alone who police and who may prosecute. Sentencing is a matter for the courts. Mr Studd, that is the rule of law, and everyone is entitled to the protection that the rule of law is designed to afford. The courts will ensure of that.
53Had you had legitimate concerns, you should have contacted the police and let them deal with the matter. But you decided that you would be the local law enforcer. You would be judge and jury. It will be Studd's law that would be enforced.
54I am told that you felt you needed to act to protect your children. What a lesson you have given to your children; that violence can be a means of resolving disputes. And what a lesson they will now have to unlearn. And of course, the irony is that by your actions, you and your children have lost the very home that you apparently sought to protect.
55Your counsel rightly acknowledged the charge of recklessly causing serious injury to be the most serious upon the indictment. Recklessly causing serious injury is a serious offence, as is clear by the maximum penalty the Parliament has seen fit to impose.
56I accept, of course, that you did not intend to dislocate the victim’s hip. Your kick was not a targeted blow, but by virtue of your plea, you have accepted your awareness that serious injury was a probable consequence of your action in kicking the victim whilst he was on the ground. To kick anyone when they are on the ground, Mr Studd, is a cowardly and a callous act, not worthy of anyone who calls himself a man. It is difficult indeed for me to reconcile the man who committed that cowardly act with the man who is spoken of in the references that have been provided to me and who has lived the life that you have.
57As to the objective gravity of the offending, I find –
(i) The offending was unprovoked although not without apparent motive on your part;
(ii) Your actions were not part of a concerted vigilante campaign to have the victim leave the area; this was not vigilante justice;
(iii) I accept that stress and a subjective sense of being under siege may have acted as a trigger for your actions on 22 May;
(iv) The offence of recklessly causing serious injury consisted in one kick in circumstances where the victim was on the ground;
(v) That offence was not planned, nor was it premeditated;
(vi) It was not a protracted assault;
(vii) No weapon was used; and
(viii) The injury, whilst serious, was not of the catastrophic kind that is so often encountered in cases where victims are kicked whilst lying prone upon the ground.
58Mr Studd, in sentencing you, I must have regard to a range of different factors. I must give effect to the principle of general deterrence, and that means that I must deter others from behaving as you did. I accept, Mr Studd, on all of the material that I have read, that you are unlikely to come before the criminal courts again. But I must express the community's denunciation of your conduct, and I should promote, if possible, your rehabilitation. I must take into account the effect that your crime has had upon your victim. The victim was still in pain some ten months later, and I have no doubt has lasting psychological impacts. I must have regard to current sentencing practices and to the statutory maximum for your offending. In short, I must try to balance your personal circumstances with the circumstances of your offending.
59Clearly, principles of general deterrence, denunciation and just punishment are primary sentencing considerations in this case. Mr Studd, I have considered long and hard whether those sentencing purposes and the objective gravity of the offending require that a sentence of immediate imprisonment be served by you. After long thought, I have concluded that they do not, but rather, those sentencing purposes can be met by the imposition of a community correction order with conditions.
60Can I make it clear that such a conclusion is not intended in any way to lessen the damage and the trauma that you have caused your victim. Such a conclusion should not be taken by anyone, in this court or outside of this court, as an endorsement of those who would seek to take the law into his own hands.
61The world is in such a sorry state, Mr Studd, because of angry men. Can I make that very, very clear. And angry men such as yourself, Mr Studd, should take this opportunity to look at yourself and to find out "What is it about me that makes me want to be angry as a way of dealing with emotions?"
62In reaching the decision, I have particular regard to –
(i) Your antecedents and your personal history;
(ii) Your excellent prospects for rehabilitation;
(iii) Your remorse, which I find to be genuine;
(iv) Your plea of guilty;
(v) The delay that has been involved and its impact upon you, although no criticism is intended of officers involved in the matter;
(vi) Your continued realisation of the impact of your offending upon your own family;
(vii) Your continued and developing insight into the impact of your offending upon your victim; and
(viii) My assessment of the objective gravity of the offending.
63Perhaps most importantly, it is my finding that your actions were not part of a concerted campaign to drive the victim from the area. Had I found otherwise - that is to say, were I satisfied to the relevant standard that this was a campaign on your part to drive the victim from his home, you would have been sentenced to a significant term of imprisonment, and I expect that your lawyer can explain to you that distinction if it is not crystal clear at this stage.
64If you stand up, please, Mr Studd.
65On Charge 1, common assault, I fine you $3,000.
66On Charge 2, common assault, Charge 3, making threats to inflict serious injury, and Charge 4, recklessly causing serious injury, you are convicted and placed upon a community correction order for a period of three years.
67There will be conditions to that community correction order. Firstly, you will be supervised. Secondly, you are ordered to perform unpaid community work of 300 hours. Thirdly, I direct that you are to attend an anger management course.
68Now, there will be a document that I need you to sign. Ms Da Costa will explain to you the core conditions that attach to a community correction order. I will therefore not repeat them here.
69Mr Studd, do you consent to being on a community correction order?
70OFFENDER: Yes, Your Honour.
71HIS HONOUR: The document will be taken to you and you can sign it. Whilst that is being done, Ms Hill, there was a forensic sample order which I understand was consented to.
72MS HILL: Yes, Your Honour.
73HIS HONOUR: And I shall make that order. Mr Studd, I am making what is called a forensic sample order. That is granting to the police the power to take a DNA sample from you, which is done by means of a buccal swab. Arrangements will be made for you to attend at a police station to enable that sample to be taken, and your DNA will be placed on a central register maintained by the authorities.
74I am directed by Parliament to tell you that should an occasion arise where you are being asked to provide the sample and you refuse to do so, the police are entitled to use such force as is reasonably necessary in order to take that sample.
75But for your plea of guilty, I would have sentenced you to a total effective sentence of 18 months' imprisonment, and directed a non-parole period of 12 months. That is to say, but for your plea of guilty, you would have gone to prison. Do you understand that, Mr Studd?
76OFFENDER: Yes, Your Honour.
77HIS HONOUR: Many people have been caused much grief, much despair and much pain by your actions. The only thing you can do, Mr Studd, I would suggest, is learn from this. Know that everyone, no matter what their status, their colour, their gender, their sexuality, their faith, but everyone is equal. Do you understand me?
78OFFENDER: Yes, Your Honour.
79HIS HONOUR: Ms Da Costa, do you want a stay in relation to paying the fine?
80MS DA COSTA: Would a stay of three months, Your Honour ‑ ‑ ‑?
81HIS HONOUR: Yes, certainly. I will grant the three months stay. I will not remit the fine out for collection and/or management elsewhere. It will stay with this court.
82MS HILL: Yes, Your Honour.
83HIS HONOUR: Thank you, counsel.
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