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District Court 3 April 2009

Regina v Loretta Stubbs

[2009] NSWDC 225

Domestic & family violencePublic order & justice offences
CRIMINAL LAW SENTENCE PLEA OF GUILTY OFFENCE COMMITTED WHILE ON S 9 BOND OBJECTIVELY SERIOUS OFFENCE

Citation: Regina v Loretta Stubbs [2009] NSWDC 225
Court: District Court of New South Wales
Date: 3 April 2009
Judge(s): Cogswell SC DCJ

Background

The offender was in a domestic relationship with a man against whom she had been charged with recklessly wounding. While on remand awaiting the hearing of that charge, she made two recorded telephone calls from custody to the man's mother, urging her to persuade him not to attend court to give evidence.

The offender asked the mother to tell her son to "stay well hidden" so he could not be found on the hearing date. Those calls were recorded by Corrective Services officers in the ordinary course. The offender pleaded guilty to doing an act with intent to influence a witness, contrary to s 323(a) of the Crimes Act 1900, which carries a maximum of seven years imprisonment.

The sentencing judge initially adjourned proceedings under s 11 of the Crimes (Sentencing Procedure) Act 1999 to allow the offender to enter drug rehabilitation, but she breached her bail and the matter returned for sentence.

  • Where within the range of objective seriousness did this offence fall?
  • What weight should be given to the aggravating circumstance that the offence was committed while the offender was subject to a s 9 good behaviour bond from another court?
  • Whether certain comments made during the telephone calls amounted to blackmail, or something less serious?
  • What sentence was appropriate having regard to the offender's personal circumstances, including diagnosed mental illness, drug addiction, and a difficult personal history?

Decision

The sentencing judge placed the offence at the lower end of the range of objective seriousness, but towards the top of that lower range, putting it just below the midpoint overall. The judge noted that no evidence showed the offender's messages were actually communicated to the intended witness, and that the attempt was relatively unsophisticated. Against that, the offender persisted across two separate telephone calls.

The judge declined to find that references to the couple's shared child amounted to blackmail, but characterised those passages as manipulative. The offence was further aggravated by the fact it was committed while the offender was subject to a s 9 bond from another court, requiring her to be of good behaviour.

The judge accepted that the offender had a difficult background, including a distressing family event during her teenage years, drug addiction, borderline personality disorder, and depressive disorder. However, these personal circumstances could not displace a custodial sentence. Citing the Court of Criminal Appeal's decision in R v Burton, the judge confirmed that offences under s 323(a) strike at the integrity of the justice system and that some form of custodial sentence is normally appropriate.

A total sentence of two years imprisonment was imposed, with a non-parole period of 13 months backdated to 3 December 2008 to account for time already spent in custody.

Orders Made

  • Total sentence of two years imprisonment for the offence of doing an act with intent to influence a witness.
  • Non-parole period of 13 months, commencing 3 December 2008 and concluding 2 January 2010.
  • Balance of term of 11 months, commencing 3 January 2010 and concluding 2 December 2010.
  • Order under s 50 of the Crimes (Sentencing Procedure) Act 1999 directing release on parole on 2 January 2010.
  • Parole conditions imposed: good behaviour, notification of change of address to the court registrar and Parole Authority, and acceptance of supervision by the Probation and Parole Service (including directions concerning drug rehabilitation and mental health).

Key Takeaways

  • The District Court confirmed, consistent with the Court of Criminal Appeal's decision in R v Burton, that offences under s 323(a) of the Crimes Act 1900 strike at the integrity of the justice system and that some form of custodial sentence is normally appropriate.
  • Committing an offence while subject to a s 9 good behaviour bond from another court is a recognised aggravating factor at sentencing, even where the offender is in custody and therefore not at liberty under that bond.
  • Manipulative conduct during an attempt to influence a witness, such as references to child custody arrangements, may be treated as an aggravating consideration without necessarily rising to the level of blackmail.
  • A lack of evidence that the attempts to influence the witness were actually communicated to him, and the unsophisticated nature of the approach, were accepted as relevant mitigating factors going to objective seriousness.
  • Personal circumstances including mental illness, drug addiction, and a difficult developmental history were taken into account but did not displace the need for a custodial sentence given the nature of the offence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 323(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 9, 11, 44, 50
- Bail Act 1978 (NSW)

Cases
- R v Burton [2008] NSWCCA 128