Adrian Stapleton v The Queen
[2020] VSCA 147
•4 June 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0155
| ADRIAN STAPLETON | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 June 2020 |
| DATE OF JUDGMENT: | 4 June 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 147 |
| JUDGMENT APPEALED FROM: | DPP v Stapleton (Unreported, County Court of Victoria, Judge Morrish, 4 February 2019) |
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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Intentionally causing injury – Theft – Intentionally damaging property – Assault – Total effective sentence of 3 years and 7 months’ imprisonment with non-parole period of 2 years – Guilty plea – Offending occurred in context of breakdown in domestic relationship – Whether sentence manifestly excessive – Effect of concession by prosecutor on plea that combined term of imprisonment and community correction order open to the sentencing judge – Whether sentence imposed so disparate from prosecutor’s concession as to bespeak manifest excess – Whether sentencing judge erred in according little weight to remorse – No error by sentencing judge – Sentence within range – Leave to appeal granted – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr H A Rattray with Ms J McGarvie | Sarah Pratt & Associates |
| For the Respondent: | Mr J Lewis | Mr A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
WEINBERG JA:
On 22 June 2018, the applicant, Adrian Stapleton, pleaded guilty in the County Court, at Geelong, to a series of offences committed in August 2016 against his wife of 20 years. They had separated in September 2015, and were living separately and apart.
For reasons that are not presently relevant, there had been lengthy delays between the applicant’s arrest and his plea hearing, which did not take place until November 2018 and January 2019.
On 4 February 2019, he was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Aggravated burglary [s 77 — Crimes Act1958] 25 years 3 years Base 2 Intentionally causing injury [s 18 — Crimes Act1958] 10 years 18 months 6 months 3 Intentionally damaging property [s 197(1) — Crimes Act1958] 10 years 1 month — 4 Theft [s 74(1) — Crimes Act1958] 10 years 1 month — Related summary offence Summary charge 5 Unlawful assault [s 23 — Summary Offences Act1966] 3 months 2 months 1 month Total effective sentence: 3 years and 7 months’ imprisonment Non-parole period: 2 years Pre-sentence detention declared: 74 days Section 6AAA statement 4 years’ imprisonment with a non‑parole period of 2 years and 8 8 months. Ancillary orders
· Forensic sample order pursuant to s 464ZF(2) of the Crimes Act1958.
· Alcohol exclusion order imposed for 2 years under s 89DD of the Sentencing Act1991.
The applicant now seeks leave to appeal against sentence upon the following ground:
The sentence is manifestly excessive.
Particulars:
(a)The individual sentences imposed on charges 1, 2 and 5 are manifestly excessive.
(b)The learned sentencing judge placed excessive weight on a finding that the applicant lacked remorse and placed insufficient weight on other more compelling mitigating factors.
(c)The orders for cumulation infringe the totality principle and produced a total effective sentence and non-parole period that are manifestly excessive.
For reasons that follow, though we would grant leave to appeal, we would order that the appeal be dismissed.
Circumstances surrounding the commission of the offences
The offences in question all took place in the early hours of 21 August 2016. At about 4:00 am, the applicant went to his estranged wife’s house and banged on the front door. His wife got out of bed, and looked out of the window. She saw the applicant’s car parked on the street outside her house.
The applicant continued banging on the door. His wife called out to him from inside the house and asked him what he was doing. He then forced his way through the locked front door, damaging the hinge as he did so (part of charge 1 — aggravated burglary — a ‘rolled-up’ charge). He pushed his wife against the hallway wall and entered her bedroom. Her boyfriend, whom we will designate ‘NG’, was in bed. The applicant climbed on top of him and punched him (part of charge 5 — unlawful assault — a ‘rolled-up’ charge). When his wife sought to intervene, the applicant called her a ‘fucking slut’.[1] He then picked her up, and threw her against the bedroom wall, causing her head to go through the plaster (charge 2 — intentionally causing injury — a ‘rolled-up’ charge).
[1]DPP v Stapleton (Unreported, County Court of Victoria, Judge Morrish, 4 February 2019), [7] (‘Reasons’).
The applicant then jumped on top of NG, punching and striking him a number of times (part of charge 5 — unlawful assault — a ‘rolled-up’ charge). Once again, his wife attempted to pull him away from NG. However, he grabbed her by the hair and threw her across the room (part of charge 2 — intentionally causing injury — a ‘rolled-up’ charge).
The applicant then went into the bathroom and picked up a floral arrangement. He threw it against the wall, yelling and calling his wife a ‘slut’.[2] He said that she had ruined his relationship, so he would ruin hers. He also told NG that he would ‘fuck [him] up’.[3]
[2]Ibid.
[3]Ibid.
The applicant then left the house. On the way to his car, he pulled the windscreen wiper blades off NG’s car, which was parked in the driveway (charge 3 — intentionally damaging property).
After the applicant left the premises, his wife and NG both tried to calm each other down. The applicant’s wife applied ice to her swollen and bruised hand, which the applicant had injured during the course of the earlier assault. They then returned to the bedroom. However, within about half an hour, the applicant returned to the house. Once again, he barged through the front door (part of charge 1 — aggravated burglary — a ‘rolled-up’ charge).
The applicant entered the bedroom, grabbed his wife by the hair, and threw her against the wall (part of charge 2 — intentionally causing injury — a ‘rolled-up’ charge). He then got on top of NG and wrestled with him. The wife, once again, tried to pull the applicant away, positioning herself between NG and him. At that point, the applicant punched his wife to the right eye (part of charge 2 — intentionally causing injury — a ‘rolled-up’ charge). He continued to wrestle with NG and screamed at him as NG tried to defend himself (part of charge 5 — unlawful assault — a ‘rolled-up’ charge).
The applicant then told NG to ‘get the fuck out of the house’.[4] In an attempt to placate the applicant, NG said that he was leaving. NG went outside and sat in his car, though he did not drive away.
[4]Ibid.
The applicant’s wife attempted to contact her friend. As she did so, the applicant snatched her phone out of her hands and left the house with it. He got into his car. His wife followed him out and asked him to return her phone, but he refused. He then drove off, taking the phone with him (charge 4 — theft).
Police attended the scene and observed the damage to the doorframe and hinge of the front door. There were two small holes in the plaster of the wall of the hallway, and a large hole in the plaster of the wall of the bedroom, close by the bed. Police also found clumps of the wife’s hair on the kitchen bench and on the floor. They located a broken windscreen wiper on the ground, at the front of the house.
As a result of the assault, the victim sustained the following injuries:
·bruising and swelling to her right thumb and left little finger;
·bruises and scratches to her legs;
·bruising and swelling above her right eye;
·a small patch of bald skin on the right anterior temporal area of her head; and
·a mild headache and nausea following the incident.
The applicant was arrested later that morning. When interviewed by police, he made a number of admissions.
The plea hearing
It was submitted, on behalf of the applicant, that there were a number of mitigating factors that should be taken into account. These included his age, lack of any prior convictions, and positive evidence of good character. A number of references were tendered which suggested that the applicant was remorseful. He had a good employment history and it was submitted that he had sound prospects of rehabilitation. In particular, a report prepared by a clinical psychologist, Patrick Newton, was tendered, and reliance placed upon the opinions expressed therein as to the applicant’s problems with alcohol and gambling addiction.
It was acknowledged by counsel who appeared on the plea that a term of imprisonment was appropriate. It was submitted, however, that the objectives of general deterrence and denunciation of the applicant’s conduct could be achieved through a moderate custodial term, followed by a lengthy community correction order (‘CCO’). It was further submitted that specific deterrence did not loom large as a relevant sentencing factor.
Counsel relied upon the applicant’s integral role in caring for his father, who was in poor health, and in supporting his mother. That made it all the more appropriate to impose a term of imprisonment of less than 12 months so that a CCO could be combined with the period of custody.
The prosecution submitted that general deterrence was of primary importance in sentencing the applicant. It submitted that a term of imprisonment was warranted, but accepted that a combined sentence, including a period in custody and a CCO, would be within range.
The prosecution pointed to the fact that the applicant had attended the premises twice on the night of the offending and that this constituted a significant aggravating feature. It also noted that charges 1 and 2, in particular, were ‘rolled-up’ charges and should be dealt with accordingly. Finally, it made submissions as to the conditions that should be imposed with regard to the prohibition of the use of alcohol if a CCO were granted.
Sentencing remarks
In a detailed set of sentencing remarks, the judge noted that when the applicant had been interviewed by police, his explanation for his conduct on the night in question had been as follows:
Because I got built up in emotion last night after finding my ex-wife with another male and stupidly trying to — I don’t know, just things — I wasn’t thinking. My – ‘cause she [came] to my house a month earlier and had an altercation with my girlfriend at the time, I just — I thought, well, if it’s good for, you know, her to do it, I can do it, but I shouldn’t have done it.[5]
[5]Ibid [15].
The applicant had been drinking heavily and told police that there had been a slow build-up of emotion. He had been taking medication for a neck injury, and accepted that he should not have consumed alcohol at the time. He told police that the first altercation had been little more than a ‘tussle’[6], with a lot of yelling. He went on to say that after he left, he went home and ‘stewed’[7] for about 20 minutes before returning to the premises. When asked to explain what had happened on this second visit to the house, the applicant said:
Virtually the same thing and I was a bit more agitated then ... [T]he door was open. I didn’t barge in at all. The door was open. They were both sitting at the end of the bed and I just virtually grabbed him, and he — he’ll vouch for it — and I was over him ... I thought I didn’t have an aggressive bone in my body, I’ve never been in a fight in my life, and I was just telling him, ‘Get out of here, get out,’ so ... [my wife]’s telling me to go and I pushed her out of the way and into the wall, and then pushed him ... then she started crying and I got upset and I left.[8]
[6]Ibid [18].
[7]Ibid [19].
[8]Ibid.
Plainly, this account could be seen as an attempt on the part of the applicant to minimise what had occurred, almost to the point of constituting a whitewash of his conduct. The injuries to the applicant’s wife spoke for themselves.
The judge observed that aggravated burglary is a serious crime. The maximum penalty of 25 years’ imprisonment demonstrates its inherent gravity. This crime, when committed in the context of the breakdown of a domestic relationship, had to be viewed as particularly serious. So too did any act of violence committed against a domestic partner, or former domestic partner.
Her Honour cited authority, if, indeed, any authority were needed, for the proposition that general deterrence is of fundamental importance in cases of domestic violence.[9] She added that, more particularly, offending of this nature is all too often perpetrated by men who respond to difficulties in a relationship, with possessive, violent rage.[10]
[9]Pasinis v The Queen [2014] VSCA 97.
[10]Marrah v The Queen [2014] VSCA 119.
Mention was made of the applicant’s past history of domestic abuse committed against his wife. However, as the judge noted, she was not sentencing the applicant for his past misdeeds, but only for the charges that were before her.
The judge referred to the wife’s victim impact statements, the first of which was made on 15 March 2017. In that statement, she spoke of the applicant’s history of domestic violence towards her, specifically in the form of mental abuse. She also spoke of the applicant’s having destroyed her financially by gambling away the equity in the family home that she had purchased using funds inherited from her parents.
Not surprisingly, the wife outlined, in powerful terms, the effect that the applicant’s conduct towards her had had upon her general wellbeing. She had required months of counselling. She continued to take antidepressants for anxiety, as did her 18 year old daughter.
The judge then summarised the applicant’s personal history. She noted that he was aged 44 and came from a loving and supportive family. He had had a stable upbringing. He received a good education and had been in full time employment in the building industry ever since commencing work.
According to Mr Newton, the applicant had a lengthy history of heavy drinking, which commenced at the age of 17. He had also had extensive difficulties with gambling, resulting ultimately in the need to sell the family home in order to pay gambling debts.
The judge characterised the motive for the applicant’s offending as a desire on his part to exact revenge for his wife’s having interfered in a relationship that he had formed with another woman. She observed that his return to the house, on the second occasion, showed a level of planning and premeditation. She noted the applicant had no prior convictions, and that there were no pending charges.
The applicant had pleaded guilty, albeit not at the earliest opportunity. That plea evidenced a degree of remorse, though her Honour was not persuaded that the remorse was complete, or overwhelming. She explained that the applicant had not, himself, given evidence of remorse. Nor had he apologised, directly or indirectly, to his wife. In addition, he had not demonstrated any remorse regarding his assault upon NG. More importantly, perhaps, in his record of interview, the applicant had sought to downplay the gravity of his offending. Indeed, he blamed his wife for what he had done, given her interference, sometime earlier, in his relationship with the other woman. In addition, the applicant had falsely denied having punched NG.
When summarising some of the procedural history that had resulted in the delay in bringing this matter to fruition, the judge observed that the applicant had, on one occasion when seeking an adjournment, told her Honour that what he had done constituted a ‘small error in [his] life’.[11] Plainly, the judge was unimpressed by that assessment.
[11]Reasons, [58].
In these circumstances, the judge was not satisfied that the applicant deeply regretted his wrongdoing and desired to atone for it.[12] Although there was some level of remorse, her Honour considered that it should not be given great weight.
[12]In that regard, the judge cited this Court’s consideration of the meaning of ‘remorse’ in Barbaro v The Queen (2012) 226 A Crim R 354, 364–6 [32]–[41], at [53] of her reasons.
With regard to prospects for rehabilitation, the judge referred to Mr Newton’s report. She found, generally, that although those prospects were reasonable, there was still ‘a long way to go’.[13]
[13]Reasons, [72].
Finally, her Honour explained why she was not persuaded that a combination sentence was appropriate. Any such sentence would require a term of imprisonment of no more than 12 months. In the judge’s opinion, the offending overall in this case was too serious. She then sentenced the applicant as set out in the table above.
We note that during the course of delivering her sentencing remarks, just as the judge was explaining why the applicant had to be imprisoned for the periods outlined, he lost his temper and made some pejorative remarks, seemingly directed at the informant. Plainly, the judge did not have regard to these remarks when she sentenced the applicant. Nor, of course, do we.
Applicant’s submissions
In his written case, the applicant submitted that the individual sentences on the charges of aggravated burglary, intentionally causing injury, and unlawful assault, charges 1, 2, and 5, respectively, were each manifestly excessive.
The applicant conceded, both at the plea hearing and before this Court, that his offending was serious. He further conceded that a sentence of immediate imprisonment was warranted, in order to reflect the objective gravity of his conduct.
Notwithstanding that concession, counsel submitted that there were a number of mitigating factors which, in combination, ought to have resulted in a significantly lesser total effective sentence than that imposed. In particular, reference was made to:
·the plea of guilty;
·the applicant’s prior good character and the absence of prior convictions;
·the fact that, at the time of the offending, he had a significant issue with alcohol;
·his gambling addiction;
·his remorse;
·his consistent work history and the availability of employment upon his release;
·the fact that, subsequent to the offending, he had undergone treatment in the community and had completed a number of programs on remand; and
·his prospects of rehabilitation.
Also in his written case, the applicant challenged the judge’s finding that little weight should be given to his remorse. Of course, her Honour recognised that an absence of remorse could not amount to a circumstance of aggravation. It merely meant that the applicant did not receive the benefit to which a finding of remorse would otherwise have entitled him.
As indicated, the judge accepted that the applicant’s plea demonstrated ‘some level of remorse’.[14] However, her Honour observed that this was ‘not complete or overwhelming’.[15] She focused upon a comment that the applicant had made when he appeared, unrepresented, before her, prior to the plea hearing, which she regarded as an attempt to avoid responsibility for his offending. The judge paid significant regard to that comment in her sentencing remarks.
[14]Ibid [50].
[15]Ibid.
It was submitted that in approaching the issue of remorse in this way, her Honour had, at least subconsciously, held what the applicant had said against him. It was further submitted that this, in turn, had caused the judge to give insufficient weight to the other, compelling, mitigating factors that were present.
With regard to the applicant’s prior good character, reference was made, in the written case, to the well-known observations of Starke J in R v Okutgen[16] regarding the weight to be given to that factor in sentencing an offender. It was noted that the judge had devoted some 11 pages of her 33 page sentencing remarks to the question of remorse. At the same time, she had barely acknowledged the fact that the applicant was able to call in aid his prior good character, referring only to the absence of any prior convictions.
[16](1982) 8 A Crim R 262.
It was further submitted that although the judge had referred to the applicant’s personal circumstances, including psychological difficulties and prospects of rehabilitation, these matters were given insufficient weight.
Next, it was submitted that the offending should have been viewed as part of the one incident, taking place over a short period of time. Accordingly, while the separate criminality for each of the offences might justify some modest orders for cumulation, the totality principle meant that a greater degree of concurrency should have been ordered.
Finally, it was submitted that the non-parole period, about 56% of the head sentence, was excessive having regard to the applicant’s prospects of rehabilitation.
In his powerful, and effective, oral submissions, counsel who appeared on behalf of the applicant before this Court, but did not appear on the plea, drew attention to the fact that the prosecutor below had expressly conceded that it was open to the judge to impose a combination sentence. It was submitted that if that concession were correct, it could not possibly mean that a total effective sentence of 3 years and 7 months was within range. The disparity between the 12 months that was the maximum available on a combination sentence, and the actual sentence imposed, was far too great to permit the conclusion that each outcome was ‘open’. Counsel accepted, however, that the success of this particular argument depended upon this Court viewing the prosecutor’s concession on the plea as having been correctly made. If that were not the case, counsel acknowledged that, in relation to this particular submission, the ground would have to fail.
Respondent’s submissions
The respondent, in its written response, submitted that the test for manifest excess, namely, whether the sentence imposed was wholly outside of the range of sentencing options available to the judge, was a stringent one, difficult to make good. It was noted that the maximum penalty for aggravated burglary is 25 years’ imprisonment. To make matters worse for the applicant, charge 1 was a ‘rolled-up’ charge, effectively encompassing two quite separate acts of criminality.
The applicant had forced his way into his wife’s home in the early hours of the morning. He had done so intending to assault both her and NG. After departing, he returned to the property and engaged in further acts of violence towards them. Thus, his conduct, and particularly in relation to the second aggravated burglary, should be viewed as premeditated, confrontational, and as having occurred in the context of a relationship breakdown. In these circumstances, general deterrence was a significant factor in sentencing for the aggravated burglary.
The charges of intentionally causing injury and unlawful assault were also ‘rolled-up’. They occurred in a context of family violence. Both victims were vulnerable. Both had been attacked in the early hours of the morning, in the wife’s bedroom, and on two separate occasions. Once again, general deterrence had to be a significant factor in relation to violent offending directed against a former domestic partner.
As regards cumulation, it was submitted that the orders made were modest and appropriate.
Turning to the mitigating factors upon which the applicant had relied, and upon which he continued to rely before this Court, it was submitted that the judge had taken them all into account. She had specifically referred to his plea of guilty, his lack of prior convictions, his consistent work history, his personal circumstances, his efforts at rehabilitation, and his prospects of rehabilitation. The fact that he had significant issues with alcohol and gambling could not be considered to be mitigating factors, but were relevant when regard was had to prospects of rehabilitation. Counsel had conceded on the plea that none of the principles set out in Verdins[17] were applicable.
[17]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
The respondent rejected the applicant’s contention that the judge had erred in according little weight to remorse as a mitigating factor. Her Honour had treated the plea of guilty as evidence of some degree of remorse, which it plainly was. However, she had given careful consideration to all of the material regarding this issue, and had been entitled to conclude that, in the circumstances, it did not merit great weight. Certainly, it could not be suggested that she had treated the absence of substantial remorse as an aggravating factor.
Moreover, the judge was entitled to give only modest weight to second hand accounts of what the applicant had said to various psychologists or to his employer, regarding remorse. She was also entitled to have regard to the applicant’s description of his offending as nothing more than ‘a small error in his life’. She noted that he had not apologised to either victim of his offending, nor even offered to make reparations for the damage that he had caused.
With regard to the applicant’s complaint that the judge had given insufficient weight to his prior good character, merely referring to his lack of prior convictions, the respondent submitted that, while it may have been preferable to have acknowledged explicitly the written references that had been tendered, the judge had plainly given this material appropriate weight. That could be inferred from the findings made as to the applicant’s prospects of rehabilitation.
Finally, it was said that the non-parole period that was fixed was merciful.
Analysis
Aggravated burglary, where the intent of the offender is to assault and injure a former domestic partner, must always be regarded as an offence of a serious nature.[18] As the judge explained, in such cases, general deterrence must loom large in the overall sentencing synthesis.
[18]See, generally, DPP v Meyers (2014) 44 VR 486; [2014] VSCA 314, 489 [6]; Woods v The Queen [2016] VSCA 293, [40] (Whelan JA); Doherty v The Queen [2017] VSCA 215, [46]; and Degney v The Queen [2019] VSCA 183, [53].
Had this been a case where the applicant entered the premises only once, and committed only the assaults described on that occasion, there might have been something to be said for the proposition that the total effective sentence of 3 years on charge 1, and 2 years on charge 2, with 6 months cumulated, was stern. Even then, however, it might be difficult to contend that such a sentence was wholly outside the range.
When one factors in the second act of aggravated burglary, and the serious assaults committed on that second occasion, all of which occurred after the applicant had the opportunity, at least for a time, to reflect upon what he had done, the argument that the sentence imposed upon him was manifestly excessive becomes difficult to maintain.
The fact is that charges 1, 2, and 5 were ‘rolled-up’ counts. It was the total criminality in respect of each of them that had to be considered. In those circumstances, the sentences imposed were all clearly within range.
The submission that the judge erred in her finding in relation to remorse cannot be sustained. Her Honour took great pains to explain why, putting to one side the remorse associated with the plea of guilty, she could give little weight to what the applicant had told various third parties about how he felt. That was a matter entirely within the judge’s purview. It was open to her Honour to find, as she did, that such remorse, as had been demonstrated, should be given relatively little weight.
In her carefully structured, and thorough, sentencing remarks, the judge made it clear that she had taken into account, and given weight, to all of the relevant mitigating factors upon which the applicant relied. Although she did not, in terms, discuss the applicant’s prior good character, apart from her references in her sentencing remarks to his having no prior convictions, it may safely be inferred that she was well aware of this material, and took it into account.
The fact that the prosecutor who appeared on the plea conceded that a combination sentence was ‘open’ did not, in any way, bind her Honour to the conclusion that she had a choice, legitimately open to her, to impose a sentence of less than 12 months’ imprisonment. In our view, any such sentence would have been wholly inadequate. As the judge said, the applicant’s offending was so serious as to require a sentence of imprisonment greatly exceeding any figure that could have been combined with a CCO.
For these reasons, and despite the eloquent submissions advanced before this Court on behalf of the applicant, we would, though granting leave to appeal, order that the appeal be dismissed.
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