Director of Public Prosecutions v Stapley
[2020] VCC 1919
•2 December 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-19-02167
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KERRY-ANNE STAPLEY |
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JUDGE: | HIS HONOUR JUDGE MASON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 November 2020 |
DATE OF SENTENCE: | 2 December 2020 |
CASE MAY BE CITED AS: | DPP v Stapley |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1919 |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Contravention of an order intending to cause harm or fear - common assault - commit indictable offence whilst on bail - fail to answer bail
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: 8 months’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP at hearing For the DPP at sentence | Mr M. Regan Ms R. Marques | Office of Public Prosecutions |
For the Accused | Ms K. Watson | Stary Norton Halphen |
HIS HONOUR:
1Kerry-Anne Stapley, you have pleaded guilty to one charge of contravention of an order intending to cause harm or fear, one charge of common assault, one transferred summary charge of committing an indictable offence whilst on bail and two transferred summary charges of failing to answer bail.
- The maximum penalty for contravention of an order intending to cause harm or fear is 5 years' imprisonment and/or 600 penalty units.
- The maximum penalty for common assault is 5 years' imprisonment or 600 penalty units.
- The maximum penalty for committing an indictable offence whilst on bail is 3 months' imprisonment or 30 penalty units
- The maximum penalty for failing to answer bail is 2 years' imprisonment.
2This matter concerns a home invasion and ultimate hammer attack on a male victim at his residence in Dandenong North at about 2.15 pm on 25 March 2019. There were two male offenders. In the course of the assault the victim was repeatedly punched with fists and hit with a hammer, choked with an electrical extension cord and also dragged around and stood on.
3At the time of offending the victim had a family violence intervention order against you, Ms Stapley, issued four weeks earlier by the Dandenong Magistrates' Court. Despite that order being in place on Monday 25 March 2019, you acted as a catalyst to the violent events that transpired in the victim’s house.
4The gravamen of the case against you is that on 25 March 2019 you contravened the family violence intervention order by contacting the victim by phone as well as travelling by car to the vicinity of the victim’s home with the two male offenders, Zenon Khalil and Salvatore Moreno[1], during which you provided directions. Whilst doing that you were aware that they were planning on confronting the victim and making demands for money.
[1] A pseudonym
5It is the prosecution case that you waited in the offenders’ car around the corner from the victim’s house. You watched as the male offenders got out of the car to go to the victim’s house. You noticed that Mr Khalil was carrying a backpack.
6The prosecution cannot establish on the available evidence that you were aware that Mr Khalil had a hammer in his backpack, nor can it establish that you had entered an agreement, understanding or arrangement with Mr Khalil that a home invasion and causing injury intentionally would occur.
7As to the other two participants:
· Mr Zenon Khalil, who was 43 years old at the time of the offending, was allegedly the main attacker in the house and has pleaded not guilty to the offending;
· Mr Salvatore Moreno, who was 46 years old at the time of the offending, had known Mr Khalil for a number of years and called him by his nickname 'Bomber', was present during the home invasion with Mr Khalil and has pleaded guilty and been sentenced for his part in the offending.
8By way of background, as at late March 2019 you and the accused Zenon Khalil had been in a relationship for about six to eight weeks and had been living together in a flat in Mitcham for a couple of weeks.
9You had previously been in a domestic relationship with the victim at his residence in Dandenong North, but that relationship had ended towards the end of 2017. In early 2019 the victim obtained a court order against you.
10The court order, made under the Victorian Family Violence Protection Act, had been taken out by the victim against you on 21 February 2019 to last for three years.
11Amongst other things, it operated to prevent you from contacting or communicating with the victim by any means and not to go or remain within 200 metres of his address in Dandenong North, and to prevent you from getting another person to do anything that you were not allowed to do under that order.
12As to the offending, on Monday 25 March 2019 at about 11.24 am Mr Khalil and you, Ms Stapley, arrived at Mr Moreno’s home in a silver BMW sedan. Mr Moreno approached the BMW and got into the back seat while Mr Khalil and you occupied the front seats.
13At the time Mr Moreno owed Mr Khalil $150 and Mr Khalil asked whether
Mr Moreno had the money. Mr Moreno did not.14Mr Khalil then asked Mr Moreno whether he was prepared to clear his debt by helping him retrieve money from your ex-partner at Dandenong.
15Mr Moreno was told by Mr Khalil that he could clear his debt by coming with Mr Khalil to Dandenong to come up to the door of 'a bloke's house', and stay there with Mr Khalil as he collected money that ‘that bloke' owed to you, Ms Stapley.
16Mr Moreno was told by Mr Khalil that he was not going to do anything else and Mr Moreno agreed on the basis that he was just to stand there while the debt was collected.
17During the journey you called the victim several times from your phone and from Mr Khalil's phone. You were also giving directions to Mr Khalil, including eventually pointing out the victim’s house.
18When the car reached the vicinity of the victim’s house, Mr Khalil parked the BMW around the corner. Mr Khalil and Mr Moreno walked towards the victim’s house. Mr Khalil had also taken a blue backpack from the front passenger seat.
19You got into the driver's seat and waited in the car whilst the eventual attack on the victim took place inside the house.
20When Mr Khalil and Mr Moreno returned to the vehicle you drove away a short distance. You and Mr Khalil swapped front seat positions so that Mr Khalil was driving and then you three proceeded to drive towards the city, eventually dropping Mr Moreno at his home in Werribee.
21You were interviewed by police on 10 April 2019. You denied any involvement in the home invasion and said that you never went to the victim’s house on 25 March, and you gave another account of where you had been.
22You were later placed into a holding cell with another female. Unbeknownst to you, that female was a Victoria Police undercover operative. You began a conversation with her, which was secretly recorded. During that conversation you said that on the day you rang your ex and you went to get heroin from him.
23You were re-interviewed by police and said you had rung the victim and were planning to meet near a chemist shop in Dandenong. You again denied having anything to do with giving directions and going to the victim’s house.
24The victim made a statement on Monday 25 March 2019 stating that he had received a series of calls from you starting from about 9 am. The victim says that you were wanting him to meet you in Dandenong and that you were saying you wanted to give him $300 or $400 you said you owed him. He regarded that as 'weird' because in his experience you usually wanted money from him.
25It is not the prosecution case that there was any real debt owed by you to the victim and I accept that proposition on the evidence beyond reasonable doubt. Whilst you may have said the words the victim recalls, he was surprised at the suggestion, thinking it ‘weird’, the evidence remains consistent with the prosecution evidence as to what Mr Moreno said Mr Khalil told him about the purpose of going to the victim’s place, that is, to get money from the victim that he owed to you, and your own evidence in the police cell interview that you had rung your ex for the purposes of getting heroin from him. Your words of you owing money to the victim remains consistent as a likely ruse at the earlier time to get the victim to Dandenong probably for the purpose of getting money from him so you could score some heroin. When it was clear that the victim was not going to meet you at Dandenong you had to make other plans.
26As to your complicity, the announced plan - when you were present with the others in the BMW - was a clear breach of the intervention order conditions by you. The order expressly prohibited you from getting another person to do anything you must not do in the terms of the order.
27The surrounding circumstances associated with the plan demonstrate that in your contravention of the intervention order you intended that harm would be caused to the victim or alternatively that he would at least fear for his safety.
28The common law assault charge is preferred against you on the basis that it can be readily inferred that you would have known or anticipated that the victim himself would, at the very least, experience fear when being confronted by the two males, even in the limited circumstances of the arrangement that Mr Moreno thought he was agreeing to while in the back of the BMW.
29The prosecution cannot establish on the existing evidence that you were anticipating that an invasion of the premises would take place or that the victim would be physically injured. The danger in agreeing with a plan involving a confrontation is that it creates an opportunity for things to get out of hand.
30As to the summary offences, you were on two sets of bail at the time of the indictment charges: you failed to appear at Dandenong Magistrates' Court on 28 March 2019 in accordance with bail entered into on 19 March 2019 at the Dandenong Police Station, as well as bail entered into on 27 February 2019 at the Dandenong Magistrates' Court.
31I now turn to your personal circumstances.
32You were born in July 1982 and are now 38 years of age. You were aged 36 at the time of the offending in March last year and you do have an extensive prior criminal history.
33Your criminal history commenced in February 2007 at the Dandenong Magistrates' Court when, at the age of 24, you were put on an adjourned undertaking for possessing cannabis, assaulting police and resisting arrest. That program seemed to work in that you did not reappear in a court for another six years, after which your career in crime could be said to have bloomed.
34From February 2013 until November 2018, a period of just over five and a half years, you have had some ten court appearances for various summary offending, sometimes appearing twice in a year, and three times in 2018. I note that the current offending occurred in March 2019.
35Your offending covers a range of dishonesty, driving, weapons and some drug offences, and you have been given numerous opportunities to avoid prison, including four community correction orders (each of which you have breached) and a wholly suspended sentence (which you also breached).
36Relevantly for the current sentencing, you have previous convictions for breach of an intervention order.
37As a result of the breaches you have had several periods in gaol and yet you still continue to offend. In particular, the current offending took place virtually four months to the day after you were last released from prison.
38You were raised in Victoria in the Dandenong area and attended school in Drouin. You were overweight at school and suffered bullying.
39After school you attended a hairdressing course through TAFE, and although you did not complete the formal course you developed skills and have worked intermittently as a hairdresser over the years. You have also worked in aged care.
40At age 19 you were severely assaulted whilst on a train. You suffered injuries to your face, which required plastic surgery, and the emotional effects of post-traumatic stress disorder. This has affected your sense of self-worth.
41You seem to have managed your life reasonably well as reflected in the record of past offences until you were aged about 31. Apparently through that period you endured a number of abusive relationships with men.
42Through those difficult years you developed a poly-substance drug use problem including heroin and alcohol. You have medicated on methadone. Your past offending does reflect an unfortunate association with illicit drugs and the lifestyle that is associated with that drug use.
43Your offending is serious notwithstanding that you did not physically attend the victim’s house and you did not confront him. You played the part of a conduit that facilitated the confrontation. You also have a persistent pattern of reoffending and whilst you cannot be punished again for your prior offending, your very poor criminal antecedents remain relevant to your prospects of rehabilitation, and specific as well as general deterrence is also important.
44In mitigation I have considered the submissions of your counsel and those of the prosecution and I accept:
· your plea of guilty for its utilitarian value in assisting the administration of justice and I also accept that the timing of the plea was determined by appropriate negotiation which resulted in more serious charges being withdrawn;
· your unfortunate history of descent into drug addiction and associated domestic violence;
· your vulnerability to ‘learnt reliance’ as described by your counsel in her written submissions; and
· the rehabilitation courses that you have completed whilst in custody, on remand and in other sentences.
45Ms Stapley, I will now deliver your sentence.
46On Charge 1 of contravention of an order intending to cause harm or fear, you are convicted and sentenced to a term of imprisonment of four months.
47On Charge 2 of common assault, you are convicted and sentenced to a term of imprisonment of six months.
48On Summary Charge 10 of commit an indictable offence whilst on bail, you are convicted and sentenced to a term of imprisonment of one month.
49On each of Summary Charges 11 and 12 of fail to answer bail, you are convicted and sentenced to a term of imprisonment of four months.
50Charge 2 is the base sentence.
51I direct that one month of each of the sentences imposed on Summary Charges 11 and 12 is to be served cumulatively on the sentence imposed on Charge 2. The sentences are otherwise concurrent.
52The total effective sentence is eight months' imprisonment and that sentence starts today.
53I note that you were remanded for this offending on 10 April 2019 and released on bail on 15 August 2019, in which time you also served 60 days’ imprisonment on other charges. You were remanded again on the plea date of 20 November 2020. So pursuant to s.18(4) of the Sentencing Act 1991 I declare that the period of 80 days, not including today, be reckoned as time already served on this matter and I direct that the fact of this declaration and its details be noted in the records of the court.
54I have allowed a sensible moderation of the 106 days you spent in custody on other matters in the determination of the sentences that I have imposed.
55Pursuant to s.6AAA of the Sentencing Act 1991 but for your plea of guilty the sentence that would have been imposed is two years' imprisonment with a non-parole period of 15 months.
56That concludes my sentencing remarks. Are there any other matters from either counsel?
57MS WATSON: Yes, Your Honour, just to confirm when Ms Stapley was remanded into custody on 20 November was it noted in her custody management issues that she was previously on methadone?
58HIS HONOUR: The actual drug is not noted. The custody management issues were medical assessment attention required and withdrawal from drug of addiction.
59MS WATSON: It would be preferable that the methadone is noted. It is just that the prison policy is that they do not administer it unless they have previously been taking it and she will not be able to have methadone until she has obviously received her sentence.
60HIS HONOUR: So what is the actual description that is required?
61MS WATSON: Previously taking methadone.
62HIS HONOUR: Thank you, I will do that. Sometimes there is complexity about the method on which the computer that records the orders actually spells things out. Can I just ask my associate, is the CLMS program capable of actually specifying that as ‘taking methadone’ or does it simply do the withdrawal from drug addiction?
63ASSOCIATE: I have now added 'Previously taking methadone’ in text to the custody management issues.
64HIS HONOUR: Yes, that should suit you, Ms Watson?
65MS WATSON: Yes, Your Honour.
66HIS HONOUR: Thank you for that. That order will be made. Ms Marques, anything from the prosecution's perspective?
67MS MARQUES: No, Your Honour.
68HIS HONOUR: Thank you.
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