New South Wales District Court CITATION: Regina v Loretta Stubbs [2009] NSWDC 225 JUDGMENT DATE: 3 April 2009 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: Non-parole period of 13 months. Balance of term of 11 months. CATCHWORDS: CRIMINAL LAW - sentence - doing an act with intent to influence a witness - plea of guilty - offence committed while on s 9 bond - objectively serious offence LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 9, s 11, s 44, s 50 Crimes Act 1900 s 323(a) CASES CITED: R v Burton [2008] NSWCCA 128 PARTIES: Regina Loretta Stubbs FILE NUMBER(S): 2008/17547001 COUNSEL: Mr McCallum (def) SOLICITORS: Director of Public Prosecutions JUDGMENT 1. Loretta Stubbs came before me for sentence on 6 February 2009 at Dubbo. On that day I adjourned her sentence proceedings to 20 March 2009. I made that adjournment under s 11 of the Crimes (Sentencing Procedure) Act 1999. I had found her guilty of an offence and I granted her bail under the Bail Act 1978. Conditions of bail included her entering into a drug rehabilitation centre. 2. Regrettably Ms Stubbs breached her bail and is now to be sentenced by me. I heard submissions from Mr McCallum who appeared for Ms Stubbs and from Ms White who appeared for the prosecution on 20 March 2009 about the sentence which I should impose. 3. The offence that I am sentencing Ms Stubbs for is doing an act with intent to influence a witness. That is a crime against s 323(a) of the Crimes Act 1900 and carries a maximum of seven years imprisonment. Ms Stubbs pleaded guilty to that charge. It is important to briefly refer to the circumstances in which she committed that offence. 4. She was in a domestic relationship with a man named Robert Norford. On 28 October 2007 Ms Stubbs was arrested and charged with recklessly wounding Robert Norford. The charge was set down for hearing at the Dubbo Local Court but Mr Norford failed to attend and the trial of the charge was adjourned to another date. In the meantime Ms Stubbs found herself back in custody on remand. The offence which I am sentencing her for occurred when she was in custody. 5. She made two telephone calls on 1 May 2008 from custody to a woman who is Robert Norford's mother. During those telephone calls she urged Robert Norford's mother to persuade him not to come to court to give evidence against her on the charge of recklessly wounding him. I have been given a transcript of the telephone calls which were recorded by Corrective Services officers in accordance with the usual procedure. For example at one stage she said, "Just tell him, say that to stay hidden". On another occasion in the same conversation she asked Mr Norford's mother to tell him to "stay well hidden, so they can't fucking find him". She was aware that the date for the hearing of the charge was a couple of weeks time and she mentioned the date and urged Mr Norford's mother to tell him to stay well hidden on that day. In a second telephone call with the same person she said things to the same effect. In other words what Ms Stubbs was doing was just as the law prohibits: she was doing something intending to influence Mr Norford not to come to court to give evidence in the prosecution of her for the charge of recklessly wounding him. 6. Mr McCallum and Ms White urged me to take into account various aggravating and mitigating circumstances. I have taken into account their arguments and make the following findings. The offence is aggravated by the fact that it was committed by Ms Stubbs when she was already on a bond from a court given to her under s 9 of the Crimes (Sentencing Procedure) Act. She was not at liberty of course because she was on remand but nevertheless she was obliged according to the bond to be of good behaviour. She was breaching that condition. 7. It was urged upon me by Ms White that certain passages in the conversations reflected an element of blackmail. They were passages concerning a child shared by Ms Stubbs and Mr Norford. A couple of times Ms Stubbs acknowledged that they could have joint custody of the child. At one stage she said that she wanted Mr Norford to be in the child's life. I do not find that that amounted to blackmail but I do find that it was to some extent manipulative which is not as serious as an attempt at blackmail. 8. The charge that she was facing was a very serious one so that her attempts to frustrate the processes of justice were themselves very serious. It would mean that if she was successful the community would not have satisfactorily resolved a very serious allegation of domestic violence made against Ms Stubbs. Ms White conceded that the case did not fall within the worst category of offence but she did not concede that it fell within the lowest category. Mr McCallum urged me to take into account, in assessing where the offence would lie in the range of objective seriousness, the fact that there was no evidence that any of Ms Stubbs' efforts to influence Mr Norford were actually communicated to him. This is right. I also accept that it was a relatively unsophisticated attempt to influence a witness. Nevertheless on the other hand, she did persevere in her requests over the course of two telephone conversations. Mr McCallum argued that the offence was committed in the context of utter desperation: this may well be the case but I expect that that is a common feature of many offences of this type 9. I find that the offence is within the lower end of the range of objective seriousness but towards the top end of that range, namely just below the middle of the range of objective seriousness for offences such as this. Having said that, another aggravating feature which I need to take into account is, as I have said, the offence was committed whilst Ms Stubbs was on a bond given by another court. 10. Mr McCallum referred to personal aspects about Ms Stubbs and her life. There were three main sources of evidence about that. One was evidence called by Mr McCallum from Ms Stubbs' mother in February 2009 before me at Dubbo. A second source is the pre-sentence report and a third source is a detailed psychological assessment report prepared by Lisa Brown, a registered psychologist. 11. It is clear from Ms Stubbs' mother's evidence and from the pre-sentence report that she had a relatively normal development as a child until her father had a relationship, when Ms Stubbs was a teenager, with a friend of Ms Stubbs. This clearly had a significant influence on her life and on her personal development. In effect she commenced to go downhill from then. She became a drug addict over the years and in fact the purpose of the adjournment which I previously gave was to see whether she could rehabilitate herself from her addiction to drugs. 12. In addition the pre-sentence report points out that Ms Stubbs has been recognised as having a borderline personality disorder and a depressive disorder. The author of the pre-sentence report, Angel Coker, made enquiries of Justice Health which indicated that Ms Stubbs was taking medication for her mental health illness. The psychological report of Ms Brown refers to the incident involving Ms Stubbs' father and describes her as having been devastated by that event. The psychological report also refers to antipsychotic medication and antidepressant and mood stabilising medication. It observes that her behaviour is consistent with a diagnosis of borderline personality disorder. It canvassed various non-custodial options which I decided to follow when I last adjourned the matter but which are no longer appropriate. 13. Mr McCallum acknowledges that this is an objectively serious offence. Both Mr McCallum and Ms White referred me to the decision of the Court of Criminal Appeal in R v Burton [2008] NSWCCA 128. In a judgment in which the other members of the Court of Criminal Appeal agreed, Johnson J said at [101] that the "essence of a s 323(a) offence is that it strikes at the integrity of the system of justice and some form or custodial sentence is normally appropriate". That was a Crown Appeal from a case which has some similarities with this case in that the respondent, whilst in custody, spoke to his partner by telephone encouraging her not to give evidence against him in a domestic violence related offence. In upholding the Crown Appeal and re-sentencing the respondent in that case his Honour fixed a sentence of three years comprising a non-parole period of two years. One must bear in mind as Johnson J said at [115] that "the sentences to be imposed as a consequence of a successful Crown Appeal will generally be less than those which should have been imposed at first instance and will generally be towards the lower end of the available range of sentence". His Honour did regard the offence in that case as involving some emotional blackmail which is a feature not present in this case. 14. I too regard this case as a crime which can only be punished with a full time custodial sentence. Bearing in mind the finding which I made regarding the objective seriousness of the offence I regard a sentence as three years as appropriate for this offence. However Ms Stubbs has pleaded guilty which is to be encouraged and the law allows me to discount a sentence because of that plea. I propose to discount the sentence by twenty-five per cent and to reduce the three years by nine months to a sentence of twenty-seven months. In addition I take into account that Ms Stubbs has some significant mental health issues and the law is clear that the factor of general deterrence is to count less in such cases. Accordingly I regard an appropriate over all sentence taking into account her mental health issues as being one of two years, or twenty-four months imprisonment. 15. Mr McCallum put to me that there are special circumstances in this case which would justify an adjustment in the non-parole period which would normally be fixed for a sentence. The non-parole period is normally seventy-five per cent of a sentence but if there are special circumstances a court under section 44 of the Crimes (Sentencing Procedure) Act may fix a non-parole period which is less than this. A non-parole period of three quarters would be eighteen months. Mr McCallum pointed to the need for therapy for Ms Stubbs' mental health issues and for her assistance in overcoming her drug dependency. Both of those issues are referred to in the evidence. Ms White, whilst saying that her prospects of rehabilitation must be very guarded because of her breach of the bail that I had granted her, nevertheless acknowledged that there is some case for reducing the non-parole period. I find that these factors - the factors referred to by Mr McCallum - do amount to special circumstances and I propose to fix a non-parole period of thirteen months imprisonment. 16. I need to determine when to commence the sentence. Ms Stubbs was in custody for this offence alone from 15 December 2008 until 8 February 2009 when I released her on bail. I am told that that amounted to some sixty-nine days. After that she was on bail but at the residential drug rehabilitation centre for some twenty-seven days. Ms White acknowledged that that is itself a form of custody in the sense that the residential conditions are very strict. She says the normal allowance is about fifty per cent. I propose to allow fourteen days which is just over half of that period. In addition she has been in custody since she was arrested for breaching bail from around 8 March 2009 until today which is some twenty-six days in full time custody. I calculate that her overall period in custody for this offence is some 109 days. That is just over three months and I propose to round it up and to allow four months. Accordingly I propose to backdate her sentence by four months and to commence it on 3 December 2008. Ms Stubbs, would you stand up. 17. I set a non-parole period of thirteen months to commence on 3 December 2008 and to expire on 2 January 2010. The balance of the term will be eleven months to commence on 3 January 2010 and to conclude on 2 December 2010. Under s 50 of the Crimes (Sentencing Procedure) Act I make an order directing your release on parole on 2 January 2010. There will be conditions for your parole. They are the following: that you be of good behaviour; that you notify the registrar of this court and the Parole Authority of any change in your residential address; and that you accept the supervision of the Probation and Parole Service including any reasonable recommendations and directions which they give you particularly concerning drug rehabilitation and mental health issues. Just have a seat Ms Stubbs, I am going to explain that in a moment but first, Mr McCallum, Ms Railton, the first question is whether I have got the figures right. I am backdating it by four months so it commences on 3 December 2008 and my calculation of thirteen months is 3 December 2008 to 2 January 2010, additional term of eleven months from 3 January 2010 to 2 December 2010, so my first question is whether I have those calculations correct? MCCALLUM: They are correct on my reckoning your Honour. RAILTON: Yes, correct your Honour. HIS HONOUR: Yes, yes, you both agree. The second question is whether there are any other matters that I should recommend as conditions of parole, Mr McCallum? MCCALLUM: I can't think of any your Honour. HIS HONOUR: No. RAILTON: Not on behalf of the Crown your Honour. HIS HONOUR: No. Any other matters which I have overlooked or need to attend to? MCCALLUM: I don't believe so your Honour. RAILTON: No. HIS HONOUR: No, no. Thank you. 18. Ms Stubbs, I have sentenced you to two years imprisonment for the reasons which I have just given. I have fixed a non-parole period of thirteen months, one year and one month for non-parole period, eleven months on parole. I have backdated it to 3 December 2008 because I have allowed for the time that you have spent in custody so that you are in custody on your non-parole period from 3 December 2008 until 2 January 2010. On that day I have directed that you be released on parole. Then you are on parole for eleven months and you have heard me say what the conditions are. The conditions are you have got to behave yourself and you have got to accept the assistance of the Probation and Parole Service. They are there to help you, you have dealt with them before, they are experienced, and you have also got to let the court and the Parole Authority know if you change your address, do you understand that? ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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