Director of Public Prosecutions v Stapleton
[2019] VCC 66
•4 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00236
Indictment No G12321279.2
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADRIAN STAPLETON |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21, 22 and 26 November 2018 and 21 January 2019 | |
DATE OF SENTENCE: | 4 February 2019 | |
CASE MAY BE CITED AS: | DPP v Stapleton | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 66 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Aggravated burglary, intentionally causing injury and other charges arising from break-up of domestic relationship – Late plea – Limited remorse – Significance of general deterrence
Legislation Cited: Sentencing Act 1991
Cases Cited:The Queen v Monks [2001] VSC 516, Pasinis v The Queen [2014] VSCA 97, Marrah v The Queen [2014] VSCA 119, Barbaro v The Queen; Zirilli v The Queen (2012) A Crim R 354,
Sentence: Total effective sentence three years and seven months’ imprisonment with a minimum non-parole period of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Sharpley on 21 and 22 November 2018 Mr A Moore on 26 November 2018 Ms C Foot on 21 January 2019 | Office of Public Prosecutions |
| For the Accused | Ms S Pratt | Sarah Pratt & Associates |
HER HONOUR:
1 Adrian Stapleton, you are to be sentenced in respect of:
· one charge of aggravated burglary (a rolled up charge encompassing two such acts committed on the same day) - Charge 1;
· one charge of causing injury intentionally (also a rolled up charge involving numerous acts committed against the same victim) - Charge 2;
· one charge of damaging property - Charge 3; and
· one charge of theft - Charge 4 -
contrary to sections 77, 18, 197(1) and 74(1) respectively of the Crimes Act 1958.
2 The maximum applicable penalties are:
· aggravated burglary, 25 years’ imprisonment;
· intentionally causing injury, ten years’ imprisonment;
· damaging property, ten years’ imprisonment; and
· theft, ten years’ imprisonment.
3 You are also to be sentenced on a related summary charge that was transferred to this Court under s.145 of the Criminal Procedure Act 2009. The summary offence is also a rolled up charge encompassing a number of acts of unlawful assault, contrary to s.23 of the Summary Offences Act 1966. The maximum applicable penalty for that offence is three months’ imprisonment.
4 Your matter was listed for trial at the circuit at Geelong County Court, commencing on 4 June 2018. You were arraigned on 22 June 2018 and pleaded guilty to the charges on the indictment and to the related summary charge.
Circumstances of Offending
5 The circumstances of offending are well set out in the summary of prosecution opening for plea, dated 21 June 2018.[1] By way of background, you were married to Narelle Stapleton, a marriage that lasted some 20 years until your separation in September 2015. There are two daughters of that union, who were aged 14 and 17 at the time of your offending. You and your ex‑wife were living in separate accommodation in Ocean Grove.
[1]Tendered as exhibit A
6 On 20 August 2016 your wife invited her boyfriend, Nat Greskie, to her home. He spent the night. At 4 am the next morning the couple awoke to loud banging on the front door. Ms Stapleton got out of bed and looked out of the window. She noticed your car parked on the street outside her house. You continued banging on the door. Ms Stapleton asked you what you were doing. You then forced your way through the locked door, damaging the door hinge as you did so. You entered the house without permission, knowing that there were persons inside the house. Your intention was to commit an assault inside the premises. That is the subject of Charge 1, aggravated burglary, which is a rolled-up charge encompassing two discrete acts of aggravated burglary.
7 You pushed Ms Stapleton against the wall in the hallway and then entered her bedroom, where Mr Greskie was still in bed. You climbed on top of him and punched him. Ms Stapleton attempted to intervene by pulling you from Mr Greskie. You called her a “fucking slut”, picked her up, and threw her against the bedroom wall. Her head penetrated the plaster as she hit the wall. You then returned your attention to Mr Greskie, jumping on top of him, punching him, striking him several times. Again Ms Stapleton attempted to pull you away from Mr Greskie. This time you grabbed her by the hair and threw her across the room. You then went to the bathroom, picked up a floral arrangement, and threw it at the wall. You were yelling, calling Ms Stapleton a slut. You said that she had ruined your relationship, so you were going to ruin hers. You told Mr Greskie that you would “fuck [him] up”. Charge 2, causing injury intentionally, is a rolled-up charge encompassing the violent acts that you committed against Ms Stapleton that I have just described.
8 Summary Charge 5 is a rolled-up charge encompassing all of the violent acts that you committed against Mr Greskie in the events I have just described.
9 Is your client all right? He tilted his head backwards. All right. After these assaults you left the house. On your way to your own car, you yanked the windscreen wiper blades off Mr Greskie’s car, which was parked in the driveway. That is the subject of Charge 3, damaging property.
10 After you left the premises, Ms Stapleton and Mr Greskie tried to calm down. Ms Stapleton applied ice to the hand that you had injured during the assault. Her hand was swollen and bruised. They then returned to the bedroom, but within approximately half an hour you returned to the house. Again you barged through the front door of the house, intending to commit an assault, knowing that a person was present inside the house. This is also part of the rolled-up charge of aggravated burglary, Charge 1.
11 You returned to the bedroom, grabbed Ms Stapleton by the hair, and threw her against the wall. You got on top of Mr Greskie and wrestled with him. Yet again Ms Stapleton tried to pull you away, positioning herself between you and Mr Greskie. You punched Ms Stapleton to the right eye. Ms Stapleton tried unsuccessfully to contact a friend. All the while, you were wrestling with Mr Greskie, screaming at him in anger, as Mr Greskie tried to defend himself. You then told Mr Greskie to, “Get the fuck out of the house”. In an attempt to calm you down, Mr Greskie said that he was leaving. He went outside the premises and sat in his car, although he did not drive away. These further acts of violence against both Ms Stapleton and Mr Greskie form part of the rolled-up charges of intentionally causing injury, Charge 2, and unlawful assault, the related summary charge.
12 Ms Stapleton again attempted to contact a friend using her mobile telephone. As she was doing so, you grabbed her phone. The two of you wrestled over it, but you snatched it out of her hands and left the house with it. Ms Stapleton followed you outside, where she found you sitting in your car. She asked you to return her phone, but you refused. Instead, you reversed your car and drove off, taking the phone with you. That is the subject of Charge 4, theft.
13 Police attended the scene and observed the damage to the front door hinge and wooden door frame. There were two small holes in the plaster in the wall of the hallway, and there was a large hole in the plaster of the wall in the bedroom, next to the bed. Police also found clumps of Ms Stapleton’s hair on the kitchen bench and on the floor. They found a broken windscreen wiper on the ground at the front of the house.
14 As a result of your assault on Ms Stapleton she 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;
· a mild headache and nausea following the incident.
Arrest and Interview
15 You were arrested later that morning and taken to the Bellarine Police Station for interview. During the record of interview you made a number of admissions. When asked why you were at the police station, you said:
“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 come 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.”[2]
[2]Answer 10, record of interview
16 When asked to explain what happened, you told police that your daughter said:
“ ‘I think Mum’s got …. a guy there,’ and, you know, after a couple of drinks or so it just got to me.”[3]
[3]Answer 11, record of interview
17 You went on to explain that you had been drinking at a friend’s place and there was a slow build-up of emotion. You explained that you were taking Lyrica for a neck injury, and that you should not drink when taking that medication.[4] You added that this combination of alcohol and Lyrica, “Just tipped me over the edge”,[5] but that you were not drunk.[6]
[4]Answers 32 and 33, record of interview
[5]Answer 34, record of interview
[6]Answer 39, record of interview
18 You stated that you drove past your ex‑wife’s place on the way home and noticed Mr Greskie’s car. You said:
“[I] pulled in and knocked on the door and just kept knocking till she opened …. it. She did open it ’cause it wasn’t a break-in so ... I’ve actually just pushed her aside and went to grab him ... grabbed him and just – it was – it was just a bit of a – basically, just a bit of a tussle on the – on the bed really so ... Just a lot of yelling.”[7]
[7]Answers 52–55, record of interview
19 You told police that you went home, where you “stewed” for another 20 minutes or half an hour before returning to your wife’s premises.[8] When asked to explain what happened on the second occasion, you told police:
“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 ... Narelle’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.”[9]
[8]Answer 56, record of interview
[9]Answers 57–59, record of interview
20 You agreed with police that you yanked the windscreen wiper off Mr Greskie’s car[10] as some sort of emotional response.[11] Asked why you did it, you replied:
“Just – I’m not sure now, just emotion. ... It built up and just not thinking. I take full responsibility for it.”[12]
[10]Answers 76–77, record of interview
[11]Answer 84, record of interview
[12]Answers 84–85, record of interview
21 When it was put to you that you had forced the front door open when you first attended the house, you admitted that you had done so. That admission was contrary to your earlier statement that Ms Stapleton simply let you into the house.[13] You then agreed that you barged your way in.[14] When asked why you went to Ms Stapleton’s house, you told police:
“... she barged into my house a month earlier, me and my girlfriend ... it was just my build-up and, like ... I’ve been waiting weeks to try and just go, ‘Well, it’s all right for you but it’s not all right for me,’ so – it’s stupid".[15]
[13]Answers 88–90 and 97, record of interview
[14]Answer 97, record of interview
[15]Answers 99–100, record of interview
22 Asked whether you intended to hurt Mr Greskie, you explained to police:
“No, I was intending to just yell at him so, as I said, I’m being straight up, I’m being honest with you, I haven’t got an angry bone in my body so – and last night was just, I’d say, two years of just emotional build-up. And it’s no excuse but, you know, Narelle has come and trashed my house three times and assaulted my girlfriend so I – for some stupid – I just wanted to get revenge and it’s wrong, I know. I should have been a bigger person.”[16]
[16]Answer 107, record of interview
23 When asked about the injuries Ms Stapleton sustained as a result of your attack upon her, you stated:
“I did throw her but she was more just emotion so – and saying that, I’m – I’m not making any excuses. It should never have been done, but I’d say if there was any drama to it, it just would have been when she hit the wall so ... just, like, slung her.”[17]
[17]Answer 140–141, record of interview
24 When police drew your attention to the injuries that Ms Stapleton received, and asked you to explain how she got them, you said:
“Well, obviously when I was throwing them both around.”[18]
[18]Answer 146, record of interview
25 When asked your reason for going back to the house a second time, you told police:
“Oh, I went home and it just kept building up with me and because the first time I didn’t really do anything, I just – it was a small rah, just yelling and screaming, and the second time I wanted to go back and just – I didn’t want to hurt him but I just wanted to ...”[19]
[19]Answer 189, record of interview
26 During the interview you also admitted that you took Ms Stapleton’s phone.
27 An intervention order was taken out against you as a result of your conduct that morning. You have been subsequently dealt with in the Magistrates’ Court on two separate occasions, namely on 27 January 2017 and on 10 February 2017, for breaching the order. As I understand it, on neither occasion did you commit any acts of violence against Ms Stapleton. Rather, you breached the order by making contact when prohibited from doing so. You were fined on each occasion. Since then no further acts of misconduct are alleged against you. As is obvious, these subsequent matters are not prior convictions.
Gravity of Offending
28 Aggravated burglary is a serious crime. The maximum penalty demonstrates its inherent gravity. This crime, when committed in the context of the breakdown of a domestic relationship, is particularly serious. Similarly, acts of actual violence committed against domestic partners or former domestic partners must be regarded as serious. The courts have repeated on numerous occasions that such conduct will not be tolerated and will be met by stern punishment. In The Queen v Monks,[20] Coldrey J stated:
“Violent responses to the emotional problems arising out of domestic relationships cannot be tolerated by the courts. The courts have a duty to deter those who may be minded to resort to such violence. ... It follows that general deterrence is an important element in any sentence to be imposed.”[21]
[20][2001] VSC 516
[21][2001] VSC 516 at paragraph [30]. See also Doherty v The Queen [2017] VSCA 215 at paragraph [46]; Johns (a pseudonym) v The Queen [2016] VSCA 97; and Whiteford v The Queen [2016] VSCA 26 at paragraph [19]
29 More recently, the Court of Appeal has confirmed that general deterrence is a dominant sentencing factor in cases involving domestic violence. As was observed in Pasinis v The Queen:[22]
“[57] General deterrence is of fundamental importance in cases of domestic violence. The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.”
[22][2014] VSCA 97
30 Although Ms Stapleton had managed to live separately from you, she was unable to escape your violence and your desire for revenge.
31 In Marrah v The Queen[23] the Court of Appeal stated:
“[25] …. Offending of this nature is too often perpetrated by men whose response to difficulties in a relationship is one of possessive, violent rage. It goes without saying that such a response, to what is a common human situation, is utterly unacceptable. The sentences must convey the unmistakeable message that male partners have no right to subject their female partners to threats or violence. The sentences must be of such an order as to strongly denounce violence within a domestic relationship.”
[23][2014] VSCA 119
32 It should be noted that I am not sentencing you for past misdeeds. You are facing sentence in respect of the charges on the indictment and for the summary charge, and for no other offences or misconduct.
33 During the course of the plea in mitigation made on your behalf, your counsel, Ms Pratt, did not deny your past history of domestic abuse committed against Ms Stapleton. Moreover, she conceded that general deterrence is an important sentencing consideration in a case such as the present, where domestic violence was committed on two separate occasions the same day. That concession notwithstanding, Ms Pratt submitted that the element of general deterrence should be moderated for a number of reasons articulated during the plea.
Impact of Your Offending
34 In her first victim impact statement, declared 15 March 2017,[24] Ms Stapleton referred to the history of domestic violence in the form of mental abuse that you committed against her over a number of years. In addition, you destroyed your wife financially by gambling away the equity in the family home that she had purchased using funds inherited from her parents.
[24]Exhibit D
35 Ms Stapleton stated:
“I felt I was a real person until the 23rd of August in which I was put through a terrifying and horrific ordeal. I had endured several years of mental abuse from this man, but on this night he made it physical in which I then really feared for my life.
The incident of that night has been extremely damaging to say the least to me and most importantly my children. My 18 year old feels like she has been let down by a man that is supposed to be her father, a role model and her support. She can no longer see him as this.
….
My daughters and I need time to continue to heal from the years of constant mental abuse (and the physical abuse towards me). Not to mention the physical trauma my girls have watched me endure on a daily basis.
….
I would never want to hear or see what has happened to me and my girls ever happen to anyone else. This is why I am standing here today to tell you my story. I want this violence to stop for not only myself but every other victim that is or has experienced what I have and still am today.
It is only through months of counselling that I have the strength to stand here today. Not only for me but more importantly for my daughters. I want them to know it is unacceptable. I want to teach them society does not tolerate domestic violence.
I am a victim of domestic violence. But I am a victim who is now standing up to it. I am no longer silent and I hope my story today will help me and my daughters move on with a happy, fun, loving and most of all safe future.”
36 In her second victim impact statement, declared in 2018,[25] Ms Stapleton stated:
“Since writing my Impact statement over a year ago I need to add some things. I do still take antidepressants for my anxiety and my eldest daughter is on them as well….
As I said in my first impact statement financial[ly] he has ruined me. What was to come I never thought another human could do to a family on whom he said he loved.
The bank took the home of which my daughters and I had turned into a loving home, my phone constantly rings with money he owes to people and the people he has taken money from around my home town leaves me sick to my stomach ...
To me he has never tried to rectify his bad doings put his head down work hard and clear his debts as well as getting a father daughter relationship back with his daughters. It’s hard to put into words the emotional rollercoaster I face on a daily basis. The fear we have still to this day in our own home – every little sound we jump at and we double check the doors are always locked.
Adrian has never had consequences for any of his bad actions.”
[25]Exhibit E
Plea in Mitigation
37 On your behalf, Ms Pratt made a comprehensive plea in mitigation of penalty. She conceded that the gravity of your offending calls for the imposition of a term of imprisonment to be served immediately, but that the term should be of such a duration as would enable it to be combined with a community correction order tailored to enhance your prospects of rehabilitation by addressing the fundamental causes contributing to your offending. I now turn to the factors raised by your counsel.
Personal History
38 You are now aged 44 years, and come from a loving and supportive family. You had a stable upbringing. After completing Year 12 you completed a carpentry apprenticeship, and ever since you have been in full-time employment in the building industry. Your relationship with your ex‑wife commenced in 1995, and you married in 1998. As mentioned, you have two children.
39 Unfortunately, the marriage broke down due to various pressures in the relationship, including your gambling problems and the fact that you had frittered away your family’s assets and financial resources. You and your wife separated in 2014. You told Mr Newton, clinical and forensic psychologist, “I think about 80 per cent of the reason for the break-up was my fault. I’m really sorry for the way things worked out.”[26]
[26]Exhibit 7, page 3
40 According to Mr Newton, you have been involved in five “cohabiting relationships since separating” from your wife.[27] At the time of his assessment in August 2018 you were “residing with Lisa and her two children. [You] and Lisa had been together for approximately six months.”[28] Since then it would appear that this relationship has ended and that you are now in a relationship with Kristie Gilmore.[29]
[27]Exhibit 7, page 3
[28]Exhibit 7, page 3
[29]Exhibit 9
41 You told Mr Newton of a lengthy history of heavy drinking which commenced at age 17. From the outset you were prone to engage in binge drinking. You told Mr Newton that in a typical week you would drink each day, with heavy drinking predominating on Thursdays and Fridays, and binge drinking occurring most weekends. You said that you would often drink more than six standard drinks, and that on special occasions you could drink in excess of twenty standard drinks.
42 You reported to Mr Newton of your extensive difficulties with gambling. Your gambling problem commenced when you started betting on horse races at about age 18. You formed the belief that gambling could solve your financial problems. In the face of continuing losses you increased your level of gambling in an attempt to recoup losses, and this in turn led to an ever-increasing gambling cycle. Ultimately, you had to sell the family home in order to pay your gambling debts. You told Mr Newton that you had not participated in any formal treatment to address your gambling problems, although I note that is inconsistent with Mr Healey’s report in which he states that you were, “persuaded to attend Gamblers Anonymous and another group at Bethany Clinic and [you have not gambled subsequently]”.[30] Mr Newton described your gambling-related issues as being “only intuitive”.[31]
[30]Exhibit 4, page 1
[31]Exhibit 7, page 4
Events Leading to Your Offending
43 On the evening of your offending you had been at a social gathering where you had consumed a large amount of alcohol. You had also taken your medication, Lyrica, which had been prescribed for pain relief. As mentioned earlier, upon learning that your wife was entertaining male company you took matters into your own hands to mete out summary justice for the wrong you perceived she had done to you.
44 Although your conduct was described by Jessica Hargreaves as lacking in premeditation,[32] that description is at odds with your explanation to police that you sought to extract revenge, and that you had been “waiting weeks to try and just go, ‘Well, it’s all right for you but it’s not all right for me’.”[33] Moreover, your decision to return to Ms Stapleton’s house some 20 minutes after your first invasion of her home to repeat the conduct in which you first engaged, demonstrates a level of planning and premeditation.
[32]Exhibit 3
[33]Answers 99–100, record of interview
Prior Good Character
45 You have no prior convictions, a fact that I take into account in your favour, although you have two subsequent appearances for breaching the intervention order taken out against you because of the events, the subject of the charges. There are no pending charges.
Guilty Plea
46 A guilty plea, no matter why or when entered, must almost always attract a sentencing discount. The size of the discount depends on a number of factors including the timing of the plea and whether it was entered in circumstances of remorse and contrition.
47 Although your plea came very late in the piece, you did ultimately plead guilty to the charges. It is a factor that, as a matter of law, must be taken into account in your favour.
48 As to the timing of your plea, a chronology of the history of proceedings, which I shall soon set out, demonstrates your attitude to the charges and the circumstances in which you determined to plead guilty.
49 The plea hearing commenced before me on 22 November 2018. It continued on 26 November and was completed on 21 January 2019.
50 In assessing the weight to be given to your plea of guilty I also take into account the following matters:
· I accept that your plea evidences some level of remorse, although for the reasons I shall soon explain, I am not satisfied that your remorse is either complete or overwhelming;
· you have avoided the cost of a trial and, more significantly, you have spared Ms Stapleton, Mr Greskie and the other witnesses the inconvenience, embarrassment and ordeal of giving evidence at trial;
· the prosecution case was, in my assessment, strong, although it must be acknowledged the outcome of any jury trial can never be assumed;
· it would appear that you did not contest the theft, wilful damage or the summary charge;
· There is social utility involved in your plea of guilty.
Remorse
51 I now turn to the question of remorse. Initially, your counsel submitted that I should accept that you are genuinely remorseful for what you have done, however she did not press the point.[34] Despite this, a number of documents were tendered on your behalf that are suggestive of remorse. I have therefore considered whether your penalty should be moderated or reduced to take account of any remorse. Although you have expressed a level of remorse to third parties, I note that you have not given any evidence about your remorse before me. Nor have you apologised directly to Ms Stapleton. You have not mentioned any specific remorse about your assault on Mr Greskie.
[34]T 22 November 2018, pages 30 – 31; 37 - 38
52 For remorse to be counted as a powerful factor in mitigation of penalty, an offender must establish to the court’s satisfaction, on the balance of probabilities, that the offender deeply regrets his or her wrongdoing and desires to atone for it.[35]
[35]Barbaro v The Queen; Zirilli v The Queen (2012) A Crim R 354
53 The relevance of remorse to sentencing and how proof of remorse may be established, was explained by the Court of Appeal in Barbaro v The Queen and Zirilli v The Queen:[36]
[36](2012) A Crim R 354 – citations omitted
[32] The place which remorse should take as a sentencing consideration has been the subject of recent judgments in this court…..
[33] In their joint judgment [in Phillips v The Queen[37]], Redlich JA and Curtain AJA (with whom Maxwell P agreed) also emphasised that the sentencing process must be informed by intellectual rigour. That, of course, applies when considering the weight to be given to remorse as an important sentencing consideration.
….
[36] A distinction must be drawn between the anguish of being caught and punished, on the one hand, and — on the other — the determination to change one’s behaviour and, to the extent possible, make amends. The first is not remorse at all. The second is. This is clear when one goes to dictionary definitions of the word “remorse” and words associated with it. “Remorse” is defined in, respectively, the New Shorter Oxford Dictionary and the Macquarie Dictionary as “deep regret and repentance for a wrong committed” and “deep and painful regret for wrongdoing; compunction”. The word “compunction” in turn is defined in those two works, again respectively, as “pricking or stinging of conscience or the heart; uneasiness of mind after wrongdoing; remorse” and “uneasiness of conscience or feelings; regret for wrongdoing or giving pain to another; contrition”.
[37] For its part, “contrition” bears the following respective definitions: “The condition of being distressed in mind for some fault or injury done” and “sincere penitence”; while “contrite” is defined, again respectively, as “crushed or broken in spirit by a sense of wrongdoing; sincerely penitent” and “broken in spirit by a sense of guilt; penitent”. Finally, “penitence” and “penitent” are defined, respectively, as “the fact or state of being penitent” and “that repents, with serious desire and intention to amend the sin or wrongdoing; repentant, contrite” (New Shorter Oxford Dictionary) and “the state of being penitent; repentance; contrition” and “repentant; contrite; sorry for sin and fault and disposed to atonement and amendment” (Macquarie Dictionary).
[38] It follows, in our view, that a person wishing to rely on remorse as a mitigating factor needs to satisfy the court that there is genuine penitence and contrition and a desire to atone. In many instances, the most compelling evidence of this will come from testimony by the offender. A judge is certainly not bound to accept second-hand evidence of what the offender said to a psychiatrist or psychologist or other professional, let alone testimonials from family or friends, or statements from the Bar table.
[39] If there is evidence of remorse, and if that remorse is genuine, it is a very important element in the exercise of the sentencing discretion. Remorse of this kind enhances prospects of rehabilitation and reduces the need for specific deterrence. An offender who pleads guilty because he or she has an accurate appreciation of the wrongfulness of his or her offending, and of its impact upon its victim or victims, and who desires to do what reasonably can be done to repair the damage and to clear his or her conscience, is someone to whom mercy — in the form of a material reduction in what would otherwise be an appropriate sentence — is very likely due.
[40] But sentencing discounts, and especially significant sentencing discounts, should not be given unless remorse is established by proper evidence, or unless on a proper basis the judge is content to relieve the offender of the need to discharge that burden. In adopting the necessary “precision of approach … in complying with the obligation to take the plea of guilty into account”, sentencing judges should approach with caution assertions that the plea itself is a sufficient basis for a conclusion that remorse is present, warranting a discount over and above that which is to be granted on the basis of utility. As Redlich JA and Curtain AJA point out in Phillips, “[t]he conduct and statements of the offender over time provide a more informative and precise guide than the plea alone as to whether genuine and deep contrition exists”.
[41] We respectfully agree with Redlich JA and Curtain AJA that “[i]n every case the genuineness of the contrition and the time and manner in which it is manifested in association with the plea of guilty will require evaluation by the sentencing judge in the light of the overall complexity of the facts before the court. ….”
[37][2012] VSCA 140
54 Turning to the relevant factors that bear upon the question of your remorse I note that in the record of interview you downplayed the gravity of your offending and you blamed Ms Stapleton for your conduct, alleging in essence that you were somehow justified to do to Ms Stapleton what you thought she had done to you some time earlier. I have already referred to what you told police when interviewed:
“And it’s no excuse but, you know, Narelle has come and trashed my house three times and assaulted my girlfriend so I – for some stupid – I just wanted to get revenge and it’s wrong, I know. I should have been a bigger person.”[38]
[38]Answer 107, record of interview
55 You also told police:
“I did throw her but she was more just emotion so – and saying that, I’m – I’m not making any excuses. It should never have been done, but I’d say if there was any drama to it, it just would have been when she hit the wall so ... just, like, slung her.”[39]
[39]Answer 140–141, record of interview
56 You denied punching Mr Greskie.[40]
[40]Answer 135, record of interview
57 The history of proceedings does not sit comfortably with your claim of genuine remorse. Although you indicated your intention to plead guilty to some of the charges at the committal stage, and you entered into negotiations with the prosecution about the form of the indictment, in April 2017 you changed your mind and determined to contest two of the most serious charges at trial, namely the aggravated burglary and the intentionally cause injury charges. Such a stance is inconsistent with a claimed desire to accept responsibility for your wrongdoing and atone for it. The trial was first listed to be heard in January 2018. It was not until the matter was listed for trial for a second time, namely in June 2018, that you decided to plead guilty to the charges. Following your arraignment on 22 June 2018, you were released on bail pending the plea hearing. Thereafter, on a number of occasions you applied to adjourn the plea hearing.
58 On 21 November 2018 you appeared before me, again seeking an adjournment. You claimed that you had insufficient funds to secure legal representation, despite previous assurances to other judges that you would have funding in place for your plea hearing. You told me that you were working six days a week but still had not managed to pay for your legal representation. You said:
“I work six days a week. I stay out of trouble. I’m trying to pay my bills and make amends for, you know, that small error in my life and I wanna move forward, I want it over and done with like you do and like my ex-partner.”
59 Your description of your crimes as “that small error in [your] life” only a day before the plea hearing commenced does not demonstrate any appreciation of the gravity of your offending.
60 Although you have sought psychological assistance to deal with your problems you have not fully addressed your gambling and alcohol problems or the causes underlying your offending. As recently as 13 August 2018, after you had pleaded guilty, you told Mr Newton that despite your guilty plea you took issue with some aspects of the Summary of Prosecution Opening. Mr Newton reported:
“In particular, he denied that he had broken into his ex-wife’s residence and was adamant that he 'never threw a punch at anyone'. Mr Stapleton was clear about his rights and responsibilities within the legal system.
By way of background, Mr Stapleton told me that the offending had occurred in the context of a 'build-up of tension' between him and his ex-wife about their respective choices of new partners. He said:
I split from my ex-wife due to financial stress caused by me. This led to gambling and drinking. Prior to the night of the offence my ex-wife had trashed my house, car and assaulted my girlfriend at the time [whom I had been with] for six months. I reached breaking point and regretted my reaction for retaliation. I will never forgive myself. I caused my ex-wife pain and I feel so bad for splitting up the family.
Mr Stapleton added:
I was sorry straightaway. I am extremely remorseful, very sorry. It’s not who I am and never has been. It was my lowest point in my life: I lost everything. I’m sorry.”[41]
[41]Exhibit 7, page 5
61 Despite claiming to Mr Newton that some of the significant facts alleged in the prosecution opening were not accurate, through your counsel you accepted them as accurate before me.[42] You did not tell Mr Newton that you had elected to contest the most serious of the charges at trial, only determining to plead guilty to them in June 2018 when the trial was due to commence. Yet, you had changed your course only a month before seeing Mr Newton.
[42]Transcript of plea hearing (T) 22 November 2018, page 17
62 Ordinarily, the fact of a guilty plea does not of itself establish remorse; however, in your case, as mentioned earlier, I have found that your guilty plea does evidence a level of remorse, although I do not find that level to be great in all the circumstances.
63 What undermines the assertion that you are truly remorseful for your conduct is that your words do not match your actions; on the one hand you say that you are sorry and that it should not have happened, but on the other, you deny the most serious of the charges, you contest the facts, and you apportion some of the blame onto your victim. You have not directly apologised to your ex-wife, you have never apologised directly or indirectly to Mr Greskie and you have not attempted to make reparation for the damage you caused. In these circumstances I am not persuaded to give much more than little weight to your remorse.
64 Examination of the chronology of your claimed remorse, when matched to your attitude to the proceedings is telling:
21 August 2016
Date of Offending, Arrest and Charge -
During the record of interview you made some admissions, said you were sorry, but you blamed Ms Stapleton and contested some of the facts, such as whether you “broke into the premises” and whether you punched Mr Greskie.
22 August 2016
You consulted Dr Samantha Buchholz regarding your depression. A mental health care plan was established and antidepressants were prescribed for you.[43]
24 August 2016
Filing Hearing.
10 October 2016
“Letter of Support” from Jessica Hargreaves, registered psychologist, from Mind Health Care.[44] The letter states:
“Adrian was referred to Mind Health Care on the 24/08/16 with a GP mental Health Care Plan for opinion and management….
Adrian presented with low mood, excessive worry, loss of appetite, sleep disturbance and feelings of guilt and remorse in the context of an altercation concerning his ex-wife and a male friend of hers occurring in the early hours of 21 August 2016….
….While it is my opinion that Adrian would benefit from ongoing therapy to further develop strategies for managing anger, it is my opinion that the incident which occurred on the 21/08/16 is an isolated one. Adrian’s actions were likely due to a combination of stress related to the breakdown of his 20 year marriage and the subsequent tumultuous relationship he has had with his ex-wife since then. Adrian did not premeditate his actions that morning and instead acted impulsively while under the influence of alcohol and medication which affected his judgment. He is remorseful of his actions and has taken steps to better moderate his drinking (Adrian stated that he was still keeping his drinking to the weekends and had five standard drinks in the weekend before our last appointment – this is a reduction from 10 – 20 standard drinks on a given night) and has learned to be more aware of his cognitive and physical triggers for anger and his strategies in place for what he can do to better manage his outbursts.”
2 November 2016
Report from Bernard Healey, clinical psychologist.[45] You reported to Mr Healey that you developed a gambling problem at the age of 25, which you funded through your income. You estimated that overall you had turned over $2 million and that this led to conflict between yourself and your wife. You told Mr Healey that you had been persuaded to attend Gamblers Anonymous and another group at Bethany Clinic and that you had not gambled since then. You claimed to be “shocked, embarrassed and ashamed over [your] conduct.” Mr Healey reported:
“He didn’t believe he was consciously seeking revenge, and in the absence of alcohol and medication he would never have behaved in such a way.”
Your statement to Mr Healey is at odds with what you told the police, namely that you were waiting for the opportunity to seek revenge.
11 November 2016
First Committal mention – Adjourned for negotiations.
23 December 2016
Second Committal mention – Defence adjournment application.
27 January 2017
You were dealt with in the Magistrates’ Court for breaching the intervention order taken out against you as a result of the offences you committed that are now the subject of the charges before me.
10 February 2017
Third Committal mention – pleas of guilty indicated to aggravated burglary, recklessly cause injury, criminal damage and theft. Plea of not guilty indicated to the intentionally cause injury charge. You were committed to the County Court by way of straight hand-up brief.
For the second time you were dealt with in the Magistrates’ Court for breaching the intervention order taken out against you as a result of the offences you committed that are now the subject of the charges before me.
7 March 2017
First Directions Hearing – Adjourned for negotiations.
4 April 2017
Second Directions Hearing – Change of defence practitioner. Defence advised that the aggravated burglary and intentionally cause injury charges are now both in dispute.
4 May 2017
Third Directions hearing – Adjourned for negotiations.
6 June 2017
Fourth Directions hearing – the matter remains unresolved. The case was listed for trial in the circuit commencing
29 January 2018. A funding mention and final directions hearing was listed for 31 October 2017.31 October 2017
Final Directions hearing/funding mention – you failed to appear. Your solicitor had advised the prosecutor that you were not funded for the trial. It was adjourned to 23 November 2017.
23 November 2017
A Directions hearing that was meant to be held did not occur as the hearing was not booked in due to Court error. You were not notified of the hearing. You were not at fault for this delay.
23 January 2018
Final Directions hearing/Funding mention – the court was advised that the defence was not funded. The trial listed for 29 January 2018 was vacated and the trial was relisted to be heard in the circuit commencing 4 June 2018. The matter was adjourned to 24 April 2018 for Final Directions hearing.
24 April 2018
Final Directions hearing – again the defence was not funded. The matter was further adjourned to 8 May 2018 for final directions hearing. Defence application to vacate the trial date refused.
8 May 2018
Final Directions hearing – defence not funded for trial but some funding was said to be available. The matter was listed for a sentence indication hearing on 1 June 2018. A further application by the defence to vacate the trial date was refused.
1 June 2018
Sentence indication hearing held. A further application to vacate the trial date made on your behalf was refused. The submissions made at the sentence indication hearing were tendered at the plea hearing before me as Exhibit 1. Those submissions state that you have been in full-time employment since completing your carpentry apprenticeship, which you undertook immediately after completing high school.[46]
The submissions also claim that you are remorseful, relying on a letter from Penelope Wood.[47] That letter states:
“I understand that Adrian Stapleton has to attend court with regard to an aggravated burglary charge. I spoke to him the morning after the alleged incident and can testify that he was very upset about the events that occurred that evening/morning.”[48]
The letter does not state that you apologised for your actions or that you appreciated the wrongfulness of your conduct and wanted to make amends for it. Indeed, the letter does not state whether you were upset because of what you had done or because you were in trouble.
4 June 2018
The trial was listed for hearing in the circuit commencing 4 June 2018.
8 June 2018
The matter was listed for mention. The case was adjourned for plea negotiations.
14 June 2018
The matter resolved in accordance with a pre-committal Crown plea offer.
22 June 2018
You were arraigned and pleaded guilty to the charges on the indictment.
13 August 2018
You were assessed by Mr Patrick Newton, clinical psychologist, for the purposes of a report to the court. The report was tendered as Exhibit 7 before me. Mr Newton stated:
“Mr Stapleton reported that he had experienced noteworthy reactive depression since being charged with these matters.….
Mr Stapleton said that he is pleading guilty to the charges. Nevertheless, he indicated that he took issues with some aspects of the Summary of Prosecution Opening.
I have already referred to this part of Mr Newton’s report.
Mr Newton also observed:
“As would be expected, Mr Stapleton’s symptoms were focused on his then impending Court hearing. Beyond that, he continued to harbour some grief and sorrow about the loss of his marriage.
… [W]hile he had reportedly been experiencing some protracted frustrations and difficulties in connection with the breakdown of his marriage (which were no doubt upsetting), there was no indication to suggest that at the time of his offending he was experiencing such distress that the diagnosis of a mental disorder would have been relevant.”[49]
Mr Newton concluded:
“1) Mr Stapleton presented for his assessment experiencing moderate levels of reactive anxiety. These were focused upon his then pending plea hearing, although some residual grief regarding his marital breakdown was also evident. He was ruminating of his concerns and was tense.….
…
8) ….He expressed shame for having offended against his ex-wife.”[50]
As is evident from this report, your main focus was on yourself, not on the harm you had caused.
19 October 2018
Letter from Anthony Papa of Hy-Form Pty Ltd, your employer, addressed to “The Presiding Magistrate.”[51] In the letter Mr Papa states:
“Adrian has addressed his situation with me and explained how the charges have led him to face court, throughout this conversation he was undeniably remorseful and regrets what has happened.”
21 November 2018
The matter was listed for plea hearing. You applied for another adjournment claiming that despite working six days per week, and in the face of a history of solid full time employment since completing your apprenticeship, and despite assurances previously given about being able to raise funds, you claimed that you still had not gathered sufficient funds to pay your legal representatives for the plea hearing. You stated:
“I work six days a week. I stay out of trouble. I’m trying to pay my bills and make amends for you know, that small error in my life and I wanna move forward, I want it over and done with like you do and like my ex-partner.”
I stood the matter over to the next day and extended your bail so that you could bring cash with you to court the next day to pay for your legal representation.
22 November 2018
The plea hearing commenced. You were represented. You pleaded guilty to the summary charge. The plea was adjourned part-heard so that a psychological report could be obtained (you were assessed by Mr Newton in August, but the report was not provided to your legal representatives because you had not yet paid for it).
I raised with your counsel whether you were genuinely remorseful in light of your comments to me the previous day. She did not press the assertion of remorse.[52]
You were remanded in custody pending the adjourned plea hearing date of 26 November 2018.
26 November 2018
The plea hearing was listed to resume, however Mr Newton’s report was still not to hand as you had failed to provide funds to pay for it. On the assurance that your mother would pay for the report, I adjourned the further hearing of the plea until 21 January 2019 to enable you to present all the material that your counsel wished to tender on your behalf.
14 January 2019
Letter written by your partner, Kristie Gilmore.[53] Ms Gilmore states:
“…. When I first met Adrian in February 2018 he acknowledged the breakdown of his marriage and family life and the negative effect it took on his emotional well-being as well as his accountability towards his offending charges. Throughout our relationship Adrian and I would often share conversations on the devastating consequences and damage it has done to his relationship with Narelle, his two daughters, [names deleted] and as a result the negative impact that has occurred to his work life and his reputation within the community which he prides himself on.
During our conversations Adrian always displayed embarrassment and deep regret for his actions and behaviour of the night and is aware of the seriousness of the situation and I have witnessed this cause Adrian distress to his daily life, sleeping habits, emotional well-being and physical health.”
21 January 2019
The plea hearing concluded. A letter you wrote dated
25 December 2018 addressed to me was tendered as
Exhibit 8. In your letter you informed me of your response to remand. You claimed to be remorseful and expressed the hope that your ex-wife and daughter could forgive you.
[43]Exhibit 3
[44]Exhibit 3
[45]Exhibit 4
[46]Exhibit 1, paragraphs 4.13 – 4.15
[47]Exhibit 1, paragraph 4.17; Exhibit 2, Letter from Penelope Wood dated 16 May 2018
[48]Exhibit 2
[49]Exhibit 7, pages 5 - 6
[50]Exhibit 7, page 8
[51]Exhibit 5
[52]T 22 November 2018, pages 30 – 31; 37 - 38
[53]Exhibit 9
Prospects for Rehabilitation
65 Your counsel conceded that no mental disturbance or behavioural disorder contributed to your offending. At the time of your assessment Mr Newton did not consider you would have met DSM‑V criteria for any mental disorder.[54] Mr Newton considered that your symptoms were focused on your impending court hearing, although you continued to harbour grief and sorrow about the loss of your marriage.[55]
[54]Exhibit 7, pages 5 and 6
[55]Exhibit 7, page 5
66 Mr Newton noted that despite your having made good initial progress in an anger-management training program that you had undertaken, “it was clear that [your] progress was incomplete”.[56] Mr Newton recommended that you continue participation in a Men’s Behaviour Change Program and that you would benefit from oversight and support in such a program to both ensure your continued attendance and to monitor your progress toward treatment goals.
[56]Exhibit 7, page 7
67 Mr Newton assessed you as experiencing moderate levels of reactive anxiety, but that your symptoms were not sufficiently severe to have met criteria for any anxiety-related disorder, mood disorder, or adjustment disorder.
68 Mr Newton considered that your drinking has been of sufficient intensity to satisfy the DSM‑V criteria for a Moderate Alcohol-Use Disorder. He also considered that your gambling behaviour has been sufficiently severe to meet DSM‑V diagnostic criteria for a Gambling Disorder. He thought there was a strong need for you to participate in gambling-related treatment.
69 While noting the progress you have made in anger management, Mr Newton considered it unlikely that you would back down from conflict, and that you endorsed traditional views of masculinity which can seed conflict with your partners. Mr Newton observed that when you are intoxicated with alcohol you would be expected to be disinhibited and to have difficulty thinking with sufficient clarity to utilise the conflict-management strategies that you have learnt or to monitor your own feelings. He considered that these factors increase the risk of further dysfunctional anger on your part.
70 In terms of rehabilitation, Mr Newton discussed three interrelated issues as requiring attention:
(i) Continued anger-management training involving participation in a behaviourally-focused anger-management group supplemented by appropriate personal counselling;
(ii) Alcohol-related treatment. Ultimately the most appropriate goal, in your case, should be total abstinence; and
(iii) Problem gambling counselling.
71 Mr Newton recommended a lengthy period of supervision in the community, “whether by parole or some other order”.[57]
[57]Exhibit 7, page 9
72 Since being on remand you have attended courses to deal with the issues identified by Mr Newton, such as programs addressing alcohol issues, anger management, and life rebuilding skills. In your letter to me you state that these courses have helped you to put your life back on the right path. I consider there is still a long way to go, based on Mr Newton’s report.
73 I am satisfied that if you pursue the recommendations made by Mr Newton your prospects for rehabilitation will be vastly improved.
74 You have no prior convictions and it would appear that your time in custody whilst on remand has served as a catalyst to make you reflect on your past actions and what you need to do to lead a law-abiding life.
Submissions as to Sentence
75 Your counsel submitted that I should combine a term of imprisonment with a community correction order, such order to contain conditions addressing the rehabilitative factors referred to by Mr Newton. She submitted that “specific deterrence has been achieved in this matter by a combination of the legal process which has caused, according to Mr Newton, reactive anxiety and that [you have] been incarcerated for the first time.”[58] She further submitted that, “The combination of [your] period of confinement and a lengthy community correction order would achieve both the punitive aspects of the sentencing process and the rehabilitative”.[59]
[58]Exhibit 6, page 3
[59]Exhibit 6, page 4. See also Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342
76 On the other hand, the learned prosecutor, Ms Foot, submitted that jail is warranted in all the circumstances. She noted correctly the significance of general deterrence in such a case involving domestic violence. Ms Foot conceded that you require supervision to maximise your chances of rehabilitation. She submitted that could be achieved by either combining a term of imprisonment with a community correction order or by ordering you to serve a term of imprisonment with a period on parole. Having made the concession regarding the availability of a combined sentence, she stressed that your offending was very serious, particularly when you determined to return to Mrs Stapleton’s home some 20 minutes after committing the first part of the incident.
Sentences to be Imposed
77 Would you please stand, Mr Stapleton.
78 I take into account all of the matters personal to you to which I have referred, including your prospects of rehabilitation. I repeat that I must take into account general deterrence, which is of importance in a case such as this. I am required to take into account the question of the protection of members of the community from you and bear in mind the likelihood of your re‑offending.
79 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
80 I am unable to accede to your counsel’s request to combine a term of imprisonment with a community correction order. Your offending is too serious, and to achieve the sentencing result that your counsel seeks I would have to contrive to impose a term of imprisonment that falls well short of what is required to do justice. As the Court of Appeal has pointed out,[60] sentencing courts should not structure sentences in such a way to avoid the need to impose appropriate total effective sentences together with non-parole periods. As they said:
“A sentencing judge is required to impose proportionate sentences on each charge, and orders for cumulation that – consistently with the principle of totality – reflect the overall criminality of the offender.”[61]
[60]See for example Dordevic v The Queen [2016] VSCA 166
[61]Ibid at [31]
81 In all the circumstances, I have no option but to impose terms of imprisonment.
82 On Charge 1, aggravated burglary, you are convicted and sentenced to three years’ imprisonment.
83 On Charge 2, causing injury intentionally, you are convicted and sentenced to eighteen months’ imprisonment.
84 On Charge 3, damaging property, you are convicted and sentenced to one month’s imprisonment.
85 On Charge 4, theft, you are convicted and sentenced to one month’s imprisonment.
86 In relation to the summary charge, unlawful assault, you are convicted and sentenced to two months’ imprisonment.
87 On the question of cumulation, the charges represent discrete offending, and in my judgment total concurrency would fail to do justice. Accordingly, I direct that six months of the sentence imposed on Charge 2, and one month of the sentence imposed on the summary charge, be served cumulatively upon the sentence imposed in respect of Charge 1 on the indictment, the base sentence, and with each other. That results in a total effective sentence of three years and seven months’ imprisonment in respect of all charges for which you are before the court today.
88 In determining the non-parole period in your case I am required to take into account the purpose of fixing a non-parole period which is “to provide for mitigation of punishment in favour of [your] rehabilitation through conditional freedom”.[62] The fixing of a non-parole period requires discrete consideration of the factors bearing upon the question of when you should be eligible for release. The relevant factors I am required to take into account are:
(i) that a non-parole period has a penal element;
(ii) that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and
(iii) that the prisoner’s prospects of rehabilitation are almost always a significant consideration.[63]
[62]See DPP v Josefski (2005) 13 VR 85 paragraph 43
[63]Josefski, paragraph 43
89 Taking all these matters into account, including your prospects of rehabilitation, I direct that you serve a minimum period of two years’ imprisonment before becoming eligible for parole.
Statement Under s.6AAA Sentencing Act
90 I am required to state the sentence and non-parole period, if any, that would have been imposed in respect of - - -
91 ACCUSED: Liar.
92 HER HONOUR: - - - the offence the subject of the indictment but for your plea of guilty. Pursuant to s.6AAA, and taking into account the matters I have previously referred to as relevant to the weight to be given to your guilty plea - - -
93 ACCUSED: Oh, fuck it. It's a joke. You liar.
94 HER HONOUR: - - - I direct that the words of the prisoner be recorded in the event of an appeal. I previously referred to, as to the - I will start again. Pursuant to s.6AAA and taking into account the matters I have previously referred to as relevant to the weight to be given to your guilty plea, I state that but for your guilty plea the total effective sentence that I would have imposed is four years’ imprisonment in respect of all charges before the court. I would have directed that you serve a minimum of 32 months before becoming eligible for parole.
95 I direct, pursuant to s.6AAA, that the sentence that would have been imposed but for your guilty plea be noted in the court records.
Pre-sentence Detention Declaration
96 Under s.18(4) of the Sentencing Act 1991, I declare that the period of 74 days is to be reckoned as a period of imprisonment already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
Ancillary Orders
97 Are any ancillary orders sought?
98 MR WEIGL: Yes, Your Honour. A forensic sample order is sought, Your Honour, and does Your Honour propose to address the issue of the alcohol excluding order?
99 HER HONOUR: I will hear your submissions again if you do not mind.
100 MR WEIGL: Under s.89D - - -
101 HER HONOUR: Yes. Well, let us deal with the forensic sample order.
102 MR WEIGL: Yes.
103 MS PRATT: It is not opposed, Your Honour.
104 HER HONOUR: Thank you. Please forgive me for standing but I have a bad back. Pursuant to s.464ZF(2) of the Crimes Act 1958 I order that you, Adrian Stapleton, undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with Subdivision 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. The charges to which this order relates is all the charges on Indictment No.G12321279.2. Mr Day, can you just double check the indictment number? Have you got the original indictment there?
105 ASSOCIATE: (Indistinct words).
106 HER HONOUR: I will read it again if you can just follow it.
107 ACCUSED: (Indistinct)
108 HER HONOUR: G12321279.2.
109 ASSOCIATE: Yes.
110 HER HONOUR: Thank you.
111 ACCUSED: (Indistinct) told the truth.
112 VOICE (from the body of the court): Stop talking. Stop talking.
113 HER HONOUR: Having considered the seriousness of the circumstances of the forensic sample offences listed above, I am satisfied that in all the circumstances the making of the order is justified for the following reasons: the seriousness of the circumstances of the offending warrant the order; the order is not opposed; and the granting of the order is in the public interest.
114 Mr Stapleton, I must inform you that if at the time of request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand?
115 ACCUSED: (No audible response.)
116 HER HONOUR: No response. Thank you.
117 ACCUSED: Oh yes.
118 HER HONOUR: Yes? Thank you. Now, we deal with the alcohol exclusion order.
119 MR WEIGL: Yes, Your Honour. Under s.89DD, if Your Honour finds that alcohol contributed to the offending and was a factor in the offending then Your Honour is obliged to make an order under that section.
120 HER HONOUR: Do you have the draft order for me?
121 MR WEIGL: It is just a declaration that Your Honour makes.
122 HER HONOUR: Thank you. Do you have any position regarding the declaration?
123 MS PRATT: No, Your Honour, given the submissions.
124 HER HONOUR: Thank you. Would you mind giving me a copy of the section again, please, Mr Weigl? I know it was given to me.
125 MR WEIGL: It's s.89DD.
126 HER HONOUR: Thank you.
127 MR WEIGL: Double capital D of the Sentencing Act.
128 HER HONOUR: Can you print out another copy of this section for me, please, Mr Day?
129 ASSOCIATE: Yes.
130 HER HONOUR: You already have it. Thank you. I have a copy.
131 MR WEIGL: Thank you, Your Honour.
132 HER HONOUR: Application has been made for an alcohol exclusion order under s.89DD of the Sentencing Act 1991. The order should be made following conviction of a crime under s.18 of the Crimes Act, causing injury intentionally or recklessly. I am obliged under s.89DE to make an alcohol exclusion order in respect of an offender if the court records a conviction against the offender for a relevant offence, and I have referred to the relevant offence, and the court is satisfied on the balance of probabilities that at the time of the relevant offence the offender was intoxicated and the offender's intoxication significantly contributed to the commission of the relevant offence, and the offender is not or has not been, the subject of a previous alcohol exclusion order in relation to the circumstances that gave rise to the relevant offence. The court is not required to call further evidence for the purposes of satisfying itself of the matters to which I just referred.
133 I have mentioned the evidence. You told police that you had been drinking but that you were not drunk. I have invited your counsel to make a submission in relation to the order but she does not speak against it. I propose in all the circumstances to make the order. Such an order prohibits you from entering or remaining in any licensed premises characterised as a nightclub, bar, restaurant, café, reception centre or function centre; and (b) entering or remaining in the location of any major event; and (c) entering or remaining in a bar area of any licensed premises to which paragraph (a) or (b) does not apply; and (d) consuming or attempting to consume any liquor in any licensed premises to which paragraph (a) or (b) does not apply.
134 The order takes effect upon your release from prison.
135 The provisions, I might just address counsel now, of sub-s.(7), I believe I have stated the name of the offender as Adrian Stapleton. I have expressed the grounds on which the order is made. I have explained the conduct that is prohibited by the order, and the duration of the order is two years. Is there anything else required?
136 COUNSEL: No, Your Honour.
137 HER HONOUR: In his outburst from the dock Mr Stapleton called someone a liar. I do not think he was referring to me but I could not see who he was speaking to. So, as I have indicated, I direct the transcribers to transcribe everything that the prisoner has said during the course of this sentencing process.
138 MR WEIGL: As Your Honour pleases.
139 HER HONOUR: Thank you. You can remove the prisoner.
140 ACCUSED: You tell the truth for the girls (indistinct).
141 MR WEIGL: Your Honour - - -
142 ACCUSED: You tell the truth. (Indistinct) They know what happened.
143 MR WEIGL: I believe it was directed to the informant.
144 HER HONOUR: Thank you. Well, that can be transcribed as well. Thank you.
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