R v Stratton, Masuglia & Stratton [2007] VSC 132

3 Whilst in the backyard at some point you held the sawn-off rifle in the direction of Dai Nong, the gun discharged and the bullet entered his left eye socket. His wife and other relatives who had been called to the house as a result of the disturbance later found him unconscious and he was taken to the Sunshine Hospital where he was pronounced dead. It is not put that you directly aimed the rifle at Dai Nong but that you committed an unlawful and dangerous act in presenting a loaded firearm in the direction of Dai Nong, in the course of which a bullet was discharged and death resulted. This conduct forms the subject of the manslaughter charge.

4 The two of you, together with the other co-offenders, jumped over the rear fence of the property taking the cannabis plants with you. You, Joshua Masuglia, had parked your car in the street immediately behind the Hall Street address prior to committing the aggravated burglary. However, in the course of fleeing the premises you dropped your car keys and thus abandoned the car at the location. Your participation in this episode gives rise to the charge of aggravated burglary to which you have pleaded guilty.

5 It appears the two of you separated and you, Leonard Stratton, went to where your sister, Tracey Stratton, was then living in Bruce Street, Laverton. You took with you six or seven mature cannabis plants which were to be trimmed.

6 Tracey Lee Stratton, you had been present during the evening when your brother told you that he was going to do a "run-through" and when he came to your house, either he or you telephoned Gavin Blair and asked him to come to the house to help When he arrived at the house, he saw a sawn-off .22 rifle on the kitchen bench, which he moved and in doing so the gun accidentally discharged. Whilst at the house the gun was placed in the roof and Gavin Blair and you, Tracey Stratton, spent most of the following day trimming the plants. A day or two later, Gavin Blair returned to the house and you, Tracey Stratton, expressed to him your concerns about the presence of the gun in the roof of your house. Gavin Blair offered to store the gun for you, which he did. What was said to be a day or two later he returned the gun and placed it in a cubby house in the rear yard of the premises at Bruce Street. You subsequently vacated those premises and the gun was left behind. It was later found by the next occupants and sold by them to others. It has not, otherwise, been located.

7 In January 2003 a covert operative posing as a friend of Gavin Blair told you, Tracey Stratton, that Gavin Blair was worried because the homicide squad was looking for him and he had left his fingerprints on the gun. Over the next few months, in various conversations, you told the operative that you could assure Gavin Blair that everything was alright and that he need not worry about the gun. You told the operative that you had wiped it down so that any fingerprints on it would have been wiped off. It is the conduct of trimming the cannabis plants and retaining the firearm for a day or two which constitutes the charge of assisting offender to which you have pleaded guilty.

8 I turn now to matters personal to you, Leonard Stratton. You are 34 years old and have admitted 51 prior convictions from 11 Court Appearances between 1991 and 1998. Your prior convictions include convictions for armed robbery and recklessly causing serious injury and your dispositions have variously included sentences of imprisonment actually to be served and wholly suspended; and community-based orders. Your last recorded conviction prior to this present offence was in 1998 but you have since 2002 been before the courts on five occasions, although a number of those offences pre-dated this present offence.

9 A report by Mr Bernard Healey, Clinical Psychologist, dated the 1st April 2007, was tendered in evidence as LS1, and I accept the matters therein as to your personal history and domestic circumstances. Your father is a heroin addict and has served periods of imprisonment, one of which was for armed robbery. In respect of that sentence he escaped from custody and you and your sister, together with your parents, lived as fugitives from justice for two years until he was apprehended. Your father then remained in prison for a further nine years until you were 18. Your mother was also a heroin addict and in 1984 she was imprisoned for two years for living off the earnings of prostitution. She died in 1997 at the age of 39.

10 In 1984, you were the subject of a Care and Protection Application and placed on a supervision order for a 156 weeks and at some point you and your sister were made Wards of the State and lived in Allambie for six months until you went to live with your maternal grandparents on the Gold Coast, where you lived for two years until your mother was released from prison. You then lived with your mother in the Housing Commission flats in Kensington until 1990 and in that year you met your wife, Tracey, when you were 18 and she was 22. Together you now have three children, aged 16, 14 and six.

11 Mr Healey reported that your early years were periods of instability for you and, no doubt, your sister. You began using illicit drugs at an early age but you did not commit your first offence until you were 19. Your criminality increased as did your drug habits and you became addicted to heroin.

12 In 1998 you attended Moreland Hall and then from then, until early 2002, remained drug-free. In that time you were working for your father-in-law but you suffered a back injury at work which ultimately prevented you from working and you have more recently been in receipt of a disability pension. You became depressed and resorted to drug use. You have, however, been on a methadone programme since October 2005 and it is said that you are now heroin-free. The only time you have had stable, consistent employment is whilst you were employed by your father-in-law. Mr Healey describes you as having sound, average intellectual capacity.

13 A report by social worker, Kay Haugh, tendered in evidence as Exhibit LS2 speaks of the effect of your incarceration upon your wife and your eldest daughter in particular as observed by the author, and a report from your family doctor, tendered in evidence as Exhibit LS4, details the effect of your incarceration on the health and well-being of your family each of whom has been adversely affected by your incarceration. A testimonial from Mr Lee Drape, tendered in evidence as Exhibit LS3, speaks of your involvement in your children's local football club and I accept that these testimonials indicate that you have been involved in your children's lives and that your incarceration will be difficult for your family.

14 Your Counsel, Mr Gucciardo, has submitted that you are very ready to accept responsibility for this offence and that you have been ready to plead to an appropriate charge on the appropriate basis. By reason of your plea he submitted you recognise that what happened on this night was absolutely unacceptable and you accept the responsibility for the disastrous consequences. In 2005 you were motivated to go on a methadone programme and your Counsel submitted that at this time you determined that drugs had led you nowhere except into trouble and that imprisonment will act as a circuit breaker to enable you to reflect and make plans for a positive future. It is said that you have considerable self-reproach, realisation and insight and now, supported by your family, you have prospects for rehabilitation.

15 The maximum penalty for the crime of manslaughter is 20 years imprisonment. Clearly, it is a serious offence and in sentencing you I must take into account the nature and gravity of the offence here committed and your role in it.

16 You had in your possession a loaded firearm and it appears that it had a hair trigger and as Mr Dai Nong advanced, you presented the gun in his direction and the gun discharged.

17 The Crown submitted and I accept that this is a serious example of an unlawful and dangerous act, presenting a loaded firearm in the general direction of a person coming at you. I accept that your offending conduct is to be placed at the mid to higher end of offences of this kind.

18 Any sentence imposed must also serve to punish you and act in denunciation of your conduct and signal to like-minded members of the community that the unlawful killing of another human being will be met with condign punishment. Any sentence imposed must also serve to specifically deter you from re-offending and must also have due regard to your prospects for rehabilitation which, given your age and the support of your wife, cannot be said to be without hope.

19 In sentencing you I take into account your plea of guilty, that by reason of your plea you have saved the community the cost of a trial and the family of your victim the ordeal of one. I take into account the antiquity of this matter, that is, it occurred some five years ago, and I take into account also the consequent delay in bringing the matter before the courts and that you have had this matter hanging over your head for the past five years. I take into account your remorse and that you accept responsibility for your conduct. I take into account your age and that at the age of 34 you will be serving a significant sentence of imprisonment, and I take into account also that such sentence should not be crushing. I take into account that you have had a dysfunctional and disruptive upbringing and limited education, that you have successfully rid yourself of your heroin addiction and that with the continued support of your wife and your responsibilities towards your young family, your prospects for rehabilitation are not without hope.

20 In short I take into account all matters which go in your favour and accordingly I sentence you as follows.

21 For the crime of manslaughter you are convicted and sentenced to 11 years imprisonment and I order that you serve a non-parole period of 8 years. I declare that you have already served, by way of pre-sentence detention, a period of 515 days.

22 I turn now to you, Joshua Masuglia. You are 29 years old and you have admitted 39 prior convictions from four court appearances between July 1997 and July 2001. These matters include eight convictions for burglary and since you committed this offence you have been before the courts on three occasions for offences which included three charges of aggravated burglary. Since 1997, you have served six sentences of imprisonment and in the last five years you have only been at liberty for six months in 2004. Indeed, you were in custody in respect of other offences not long after this subject offence occurred and you were in prison when you were charged in respect of this offence.

23 A report of Clinical Psychologist, Mr Ian Joblin, dated 10 April 2003, was tendered in evidence as Exhibit JM1. Mr Joblin details your domestic circumstances and antecedents which I accept. Your mother, from whom you are now estranged, is a chronic alcoholic, and your father, apart from the last three years, has been a heroin addict and has spent time in prison. You attended Sunshine Technical School and left halfway through Year 10 when you were 16. At that same time your parents separated, your father forming a relationship with your mother's sister. For a time you lived between the two households and it is said that you first appeared before the courts on your sixteenth birthday. When you first left school you obtained a job at the wholesale markets where your father worked and you had that job for two months. You have not been employed since. Mr Joblin describes your life as one of marked instability. In 1996 you met a young woman who is now the mother of your two children aged 10 and five and it is said that that relationship is not without its difficulties although the mother of your children has never come to the attention of the police.

24 Mr Joblin describes you as having a good intellect. You are not psychotic although in his opinion you have serious psychological problems stemming from your early years and your father's heroin addiction.

25 Your life has been one of escalating criminal conduct as you descended into substantial drug abuse. It is said by your Counsel, Mr Saunders, that you would commit a number of these burglaries when you were under the influence of drugs and that they were mainly burglaries of factories and, indeed, your drug habit was the reason that you became involved in this offence. Your Counsel submitted that you are now gaining some insight into your offending conduct.

26 Your grandfather, Mr Barry Masuglia, gave evidence on your behalf and said that in his regular telephone conversations with you he has implored you not to go the way of your father and it is his view that you are starting to think about the consequences of your actions. Your grandfather is prepared to provide you with accommodation upon your release.

27 Your uncle, Adam Masuglia, also gave evidence on your behalf. He describes you as becoming more mature and responsible and that you want the opportunity to get to know your children. He is in a position through his employment to recommend you to a Skills Hire Agency who will be prepared to take you on presumably if you can demonstrate employable skills.

28 Your most recent history is somewhat complicated. The Adult Parole Board met on the 16th March 2005 and granted you parole to commence on the 3rd October of that year which meant, as I understand it, that you would have spent 12 months from the 3rd October 2005 on parole. However, you were charged with murder and aggravated burglary in May of 2005 so the Parole Board revoked its decision and you have remained in custody since. Thus, you have been held in custody for 200 days referable to this offence since your sentence lapsed and have spent a year in custody when you would otherwise have been on parole.

29 In these circumstances, your Counsel has submitted that I should take the whole of the period you have served in custody, presumably since the decision to parole you was revoked, not only pursuant to s.18 of the Sentencing Act 1991 but also in the interests of justice. Further, you have served a period of imprisonment when you would otherwise have been at liberty and you have lost the opportunity of any sentence imposed being served concurrently with the sentence you were then undergoing. I do take into account, in the interests of justice, the time spent in custody since your parole was revoked. The Crown does not dispute this submission and, as I understand it, as at the 11th April when the plea in this matter was heard the period reckoned was 555 days.

30 Mr Saunders has submitted that in these circumstances any minimum term imposed should not go beyond the period already spent in custody, now reckoned at 567 days, and that in these circumstances it would be appropriate to fix a longer period on parole.

31 Although you have had difficulties with parole in the past, it appears that your conduct whilst in prison has not come to the attention of the authorities so that it may be, in this instance, with the support of your family you would be able to successfully complete a longer period on parole.

32 The maximum penalty for the crime of aggravated burglary is 25 years imprisonment. Clearly it is a serious offence. In sentencing you I must take into account the nature and gravity of the offence here committed. You entered premises at night in the company of others with the purpose of stealing a cannabis crop. You knew your co-offender had a firearm with him. The aggravated burglary was planned in the sense that a crop was located and you must have agreed with the others to commit the offence, indeed, you parked your car in the next street presumably to effect a getaway. To commit an aggravated burglary when you knew one of your number had in his possession a firearm places this offence in the mid to high end of offences of this kind.

33 The fact that Mr Dai Nong died during the course of the aggravated burglary forms no part of my sentencing function and I acknowledge that I am not sentencing you, in anyway, in respect of the death of Mr Dai Nong. Nonetheless, he did die during the course of this aggravated burglary and it is very much to your credit that you have through your Counsel expressed your remorse for what happened and your concern that someone was killed during the course of this offence.

34 In sentencing you I must also pass a sentence which will serve to punish you and act in denunciation of your conduct and signal to like-minded members of the community that if they engage in conduct such as this they can expect condign punishment. Any sentence should also seek to specifically deter you from re-offending especially where previous dispositions, including sentences of imprisonment, have failed to do so. I must also have due regard to your prospects for rehabilitation which with the support of your family, your insight into your offending conduct and your desire to be present as your children grow and with the continued supervision of the Adult Parole Board, is not necessarily without hope.

35 In sentencing you I take into account your plea of guilty, that by reason of your plea you have saved the community the expense of a trial and the witnesses the ordeal of one. I take into account also that by your plea you have given up a fair chance of an acquittal. I take into account the antiquity of this matter and the delay in its resolution. I take into account also that you have expressed your concerns and remorse that a life has been lost during the course of this episode. I take into account your age, that at the age of nearly 30 you are still a young man and that your prospects for rehabilitation are not without hope, and I take into account also matters personal to you pertaining to your dysfunctional early life.

36 In short, I take into account all matters which go in your favour and without in any way diminishing the nature and gravity of the offence here committed and acknowledging that I am not sentencing you in any way in respect of the unlawful killing of Mr Dai Nong, I sentence you as follows.

37 For the crime of aggravated burglary you are sentenced to four years imprisonment and I order that you serve a period of 18 months before becoming eligible for parole and I declare that you have already served by way of pre-sentence detention a period of 567 days.

38 Tracey Lee Stratton, you are 30 years of age and have 52 prior convictions from 10 court appearances between July 1996 and August 2001. You have also suffered the same dysfunctional and traumatic childhood as did your co-offender, your brother. As a result your schooling was disrupted and you left school at the age of 14 without completing the second year of high school. You have only ever had casual employment and you have a history of stealing in order to support your drug habit. Since May 2002 you have been convicted on a further six occasions, resulting in various sentences of imprisonment. You were most recently released in January of 2007 having given birth to your daughter, Destiny, whilst in prison. She is now 12 weeks old. Since being released in January you have been on daily methadone and you are otherwise drug-free.

39 Miss Kelly Lynell, an administrative assistant with the Brotherhood of St Lawrence, gave evidence on your behalf. She maintains regular contact with you and stated that your baby is well-cared for, that you are quite content with her and she has not seen you engage in any drug use since your release from prison. In her view you are thinking more towards the future as you want to be there for your daughter. You are presently living in a de facto relationship with your daughter's father who himself has responsibility for his 11 year old son.

40 Your counsel has submitted that your culpability for your offending conduct is mitigated by your reluctance to keep the firearm as evidence by your asking Blair to remove it within a day or so, that your brother's request of you posed a moral dilemma, that you were addicted to drugs at the time and you were offered marijuana in return for your assistance. You were living alone, your then partner was in jail, and you were in financial difficulty and facing eviction. The Crown concedes that you were reluctant in offering assistance to your brother but nonetheless you voluntarily did so and I propose to proceed on that basis, taking into account your particular vulnerabilities at that time.

41 The maximum penalty for assisting an offender is five years imprisonment. In sentencing you I must take into account the nature and gravity of the offence here committed and your role in it. It is not disputed by the Crown that the gravamen of your conduct is the retention and secretion of the firearm which you had in your house for "a day or two" and not the trimming of the cannabis plants although that too was no doubt of assistance to your brother in helping him to dispose of it. Nevertheless, although you had the firearm in your house for a relatively short time and had it reluctantly, had it not been secreted its detection may well have provided evidence against your brother which may have led to his apprehension. Indeed it appears that you were aware that the firearm could be incriminating as you told the undercover operative that you had wiped it of prints. Thus, by assisting your brother in this way in the immediate aftermath of the aggravated burglary your conduct may well have assisted him to avoid apprehension.

42 Any sentence I impose must also take into account the need to pass a sentence which will serve to punish you and act in denunciation of your conduct. Any sentence imposed should also seek to specifically deter you from re-offending which previous dispositions have failed to do. Further, any sentence imposed must also give due weight to considerations of general deterrence so that like-minded members of the community will know that if they conduct themselves in such a way they can expect condign punishment.

43 Your Counsel has submitted that in all the circumstances of this case a sentence of imprisonment, although warranted, should be wholly suspended. Mr Mason submitted that this was so because your culpability was at the lower end for offences of this kind, that your prior convictions did not show a proclivity to this type of crime but rather they were petty and persistent in nature and displayed a genuine struggle with your addiction.

44 Mr Mason also submitted that you have had the resolution of this matter hanging over your head for the past five years and that you were originally charged with assisting the offender in respect of the crime of murder.

45 Your co-offender, Gavin Blair, who was also charged with assisting offender in respect of the retention of the firearm, was sentenced to two years imprisonment in respect of that offence. In total, after he was dealt with in respect of other matters, a sentence of two years and three months was wholly suspended for three years. He gave an undertaking to the Sentencing Court that he would give evidence on behalf of The Crown in the case against you and your brother. Accordingly, his willingness to give evidence and his co-operation with the police wherein he made a lengthy record of interview where he admitted his offence were significant sentencing considerations which are absent in your case.

46 Nonetheless, your Counsel has submitted that this was a case which called for disparity in the sentencing of co-offenders, that is, he said because Mr Blair is more culpable, he being present when the firearm was first secreted in the roof and then took it to his house and returned it at a later stage to the Bruce Street house and hid it in the cubby in the backyard. Further, Mr Mason submitted that he was not in the same vulnerable position or suffering the same emotional instability that you were at the time. I accept that there are good reasons why a different sentence should be passed in respect of your conduct, not the least because you had the firearm for only a limited period.

47 Nonetheless, at the time you committed this offence you were on a good behaviour bond and you had previously breached a suspended sentence and the terms of a combined custody and treatment order. These matters suggest that you have failed to abide by the terms of previous dispositions and there is a risk that you will not successfully complete the operational period of a suspended sentence. I note in this regard that you are presently serving a sentence of three months imprisonment which has been wholly suspended for one year, which sentence was imposed on the 26th February of this year. These offences pre-date your last period of imprisonment and it is not suggested that you are not complying by the terms of that order at this time. I am satisfied that the care of your infant daughter is a powerful catalyst to your remaining drug-free and not re-offending, for the reality is if you breach a suspended sentence of imprisonment unless exceptional circumstances can be shown you will actually serve that period of imprisonment.

48 In sentencing you I take into account your plea of guilty, that by reason of such plea you have saved the community the cost of a trial and have obviated the necessity of witnesses being called to give evidence. I take into account that you have also suffered from a dysfunctional early life, that you have had a significant drug habit which has accounted for your past criminal conduct and that you are making efforts to remain drug-free. I take into account your age and that you are the mother of a 12 week old baby and that your baby is a powerful impetus for your rehabilitation and in these circumstances it cannot be said that your rehabilitation is without hope.

49 In sentencing you I take into account all matters which go in your favour and accordingly, for the crime of assisting an offender, you are convicted and sentenced to 12 months imprisonment. I declare that you have already served a period of 36 days by way of pre=sentence detention and, accordingly, in order to enhance your prospects for rehabilitation I propose to suspend the balance of that sentence, being a period of 329 days for a period of 12 months and the operational period is 12 months commencing from today.