Director of Public Prosecutions v Stokes, Paul
[2013] VCC 702
•17 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01840
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL STOKES |
---
JUDGE: | HIS HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 May 2013 | |
DATE OF SENTENCE: | 17 May 2013 | |
CASE MAY BE CITED AS: | DPP v Stokes, Paul | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 702 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S. Balleck | |
| For the Accused | Mr I. Crisp |
HER HONOUR:
1 Paul Travis Stokes, you have pleaded guilty to one charge of aggravated burglary contrary to s. 77(1) of the Crimes Act 1958. The maximum penalty for this offence is 25 years imprisonment. You have also pleaded guilty to one charge of assault contrary to common law, for which the maximum penalty is 5 yrs imprisonment. Finally, you have pleaded guilty to two charges of criminal damage contrary to s 197(1) of the Crimes Act 1958 for which the maximum penalty is 10 years’ imprisonment.
2 Mr Balleck, for the prosecution, has tendered and read out in open court a summary of the case that is brought against you, which was Exhibit 1. You have admitted the truth and accuracy of that summary and I sentence you on the facts set out in that document.
3 The offences relate to a number of incidents which occurred on 25 June 2012. You are the husband of one of the victims, Stephanie Stokes, and at the time of the offences you had been living together for over 10 years and had married in March 2012. You were aged 29 at the time of the offences and are now 31 years old. You have 2 children together, aged 8 and 3, as well as custody of Ms Stoke’s daughter, who is aged 12.
4 In the months before the offences, you had been having marriage problems and you had expressed concern about your wife’s friendship with a work colleague, Jason Cole, aged 22. On the evening of the offences you had planned to discuss your marriage and had arranged for the children to be taken by relatives for the night. At around 8 pm, you were discussing your concerns with your wife. You became emotional. Your wife went to another room. You took her mobile phone and looked at it. Your wife tried to take it from you, both inside the house and outside the house when you walked away, but you held on to it. She returned to the house, locked all the doors and called Vodafone to see if she could have the phone locked. You then returned to the house, entered through the front window, and started reading aloud the text messages on her phone. She told you that the messages were only joking around. You then said you were going to call Jason Cole to ask about the messages.
5 Your wife took her keys, got into her car and drove off. You followed her and blocked her car at an intersection. She started reversing away from you but you went to the driver’s side and then punched the windscreen with your right fist, causing the windscreen to shatter. This is the subject of Charge 3, criminal damage. She managed to get around you and drove to Chelsea police station where she reported the incident. She was uninjured but scared for her safety.
6 At 9.10 pm you used your wife’s mobile phone to ring Jason Cole who was at home at his parent’s house in Montmorency. You then accused him of wrecking your family, and asked whether anything had happened between him and your wife. He said no, but when pressed said that he and Ms Stokes had kissed about a year ago when he thought you and she had split up. You hung up in order to take another call.
7 About 20 minutes later, Mr Cole was preparing to go to bed and was saying goodnight to his mother, Ann Cole, aged 52, when there was a loud knock at the door. Mr Cole saw you through the glass and recognised your voice when you said “open the door”. He said "no". You then kicked in the wooden door breaking the lock and bursting into the house in the company of a taller, unknown man behind you. This is the subject of Charge 1, aggravated burglary. You began yelling at Mr Cole who backed away into the house. Ann Cole was in the vicinity and Mr Cole yelled at her to call the police.
8 As you were bigger than him, and were in a rage, Mr Cole went down on his knees with his arms over his head to protect himself. You kicked and punched him a number of times. This is the subject of Charge 2, common law assault. Ann Cole was screaming at you to stop assaulting her son and told both you and the unknown man to leave or she would call the police. You then moved in a threatening manner towards her and said to her: “your son is having it off with my wife”.
9 Shortly thereafter, you and your companion walked back out the front door. As you left, you smashed the left side mirror and damaged the front left door of Mr Cole’s car which was parked under a carport at the front of the house. This is the subject of Charge 4, criminal damage.
10 As a result of the assault, Mr Cole received bruising, swelling and minor cuts to his arms and an abrasion above his right eye. There was no victim impact statement from him, but one can well imagine how frightening an experience it would have been for him to be kicked and punched while cowering on the ground.
11 At 10.00 pm police attended the Coles’ residence. At 10.02 you called Mr Cole on his mobile phone. Police members took the call and asked whether you had been at the Coles’ house. You denied it and said you were ringing Mr Cole because you were mates.
12 At approximately 10.30 that night you attended at Chelsea Police Station where you were interviewed. You answered no comment to most questions and to the allegations. However, you admitted that you had met Jason Cole on two previous occasions. You also denied ever phoning him or knowing his address, and you claimed that you injured the back of your right hand at work.
Gravity
13 Aggravating factors: The whole of the offending occurred not over a period of mere moments, but over a period of over one and a half hours. The aggravated burglary was a confrontation type home invasion for the purpose of assault, and was committed in company. There was planning involved in arranging, albeit at short notice, to pick up the man you did not name who attended the victim’s home with you, and driving some distance to the victims’ home. Aggravated burglary is a very serious offence, as is indicated by the maximum penalty of 25 years, and by the fact that custodial sentences have been imposed in a high proportion of cases.
14 On the other hand, there was no weapon involved in the aggravated burglary. Fortunately, the physical injuries sustained by Jason Cole in the assault were relatively minor.
Plea in mitigation
15 Your counsel, Mr Crisp, made a plea in mitigation on your behalf in which he relied on a number of documents which were tendered. First, there was a letter from William Buckley dated 1 September 2012 [Exhibit A] which noted that you have been attending an Anger Management Program run by the Salvation Army. You have attended 5 out of 8 appointments and have engaged extremely well. You have expressed genuine remorse for your offending, and have clearly identified where anger has caused you problems in the past, and have requested counselling beyond this program.
16 Carla Lechner, forensic psychologist, provided a report dated 11 February 2013 [Exhibit B] in which she set out your background and personal circumstances.
17 You are the youngest of 4 children. Your father was emotionally distant and used corporal punishment. Your parents separated when you were in primary school. Your father remarried a few times but is now single. He suffered a stroke some years ago and lives in a home. You have no contact with your older brothers but are close to your sister Denise, aged 31. You were an average student but struggled with reading and were bullied at school for your large size. You were selected to represent Victoria in rugby but could not afford the costs. You then gave up, leaving school at the end of Year 10. You smoked marijuana regularly between the ages of 14 and 16 and experimented with amphetamines and other drugs. There was some offending as a juvenile when you mixed with the wrong crowd before you met your wife and became a responsible hardworking parent. You no longer use drugs and rarely drink alcohol.
18 After leaving school you obtained most of your work through an agency. You left home because you did not get on with one of your brothers. You ran your own rendering business for three years from the age of 21, but this business failed after a builder did not pay a large bill owed to you. You then worked as a forklift driver for 3 years. For two years from the age of 27 you ran a concreting business, but ran into financial and partnership problems. You were also having domestic problems and separated from Stephanie for a time. From February 2012 you have been working as a production supervisor. After your wedding in March 2012 you continued to have marital difficulties and you believed your wife was seeing another man, Jason Cole. After the offences, you did not have contact with your wife or children for a month. You were crying every day, could not sleep or eat, and lost about 25 kgs. You knew what you did was wrong. You contacted the Men’s Helpline, reconciled with your family and your mood improved.
19 Ms Lechner felt that when she saw you, you were not suffering from an underlying psychological or psychiatric disorder although you remained mildly depressed. She reported that you have expressed regret and shame for your offending, and understand that you engaged in angry, impulsive and self-defeating behaviour in the heat of the moment when distressed and angry about learning of your wife’s alleged indiscretion. You have engaged appropriately with counselling and developed more adaptive coping skills and strategies as well as improved communication. She recommended that you continue counselling
20 Mr David Entwistle, psychologist, reported on 13 May 2103 [Exhibit D] that you were referred to him for cognitive behaviour therapy by your general practitioner, Dr Croce, in relation to a possible adjustment disorder. You attended 8 sessions between July and December 2012.
21 Dana Emery of East End Slabs confirmed in a letter dated 17 September 2012 [Exhibit C] that you have been employed by that firm full time as a site supervisor since 30 January 2012.
22 Mr Lucas Nicholson, a serving member of the Australian Defence Force, and a friend of yours for the past 17 years, provided a letter dated 8 May 2013 [Exhibit E], in which he noted that you grew up in a dysfunctional family and offended when younger but really settled down when you met your wife. You worked hard to support your family. You have confided in him continuously over the years and shown absolute regret and great remorse for your actions, realising that your actions greatly affected every aspect of your family life, which you regret and have learned from. He felt that it was unlikely that you would offend again.
23 Your wife gave evidence in which she stated that you have been a wonderful family man but were under a great deal of emotional strain at the time of the offences because of what she referred to as her inappropriate friendship with Mr Cole. She said that you have shown remorse and understood the impact of invading Mr Cole’s home on Mr Cole and his mother, that you have had counselling, worked very hard and grown as a result of this incident.
24 Your mother gave evidence that you have always been a most supportive son to her but also to your father since he has been in a home. You changed for the better when you met your wife and took on the responsibility of raising her daughter and your children. You rang her from the police station after the offending and were very upset and withdrawn after being charged. You lost a lot of weight and would frequently call her and cry on the phone.
25 Your sister gave evidence that you were badly affected when your parents separated; later you mixed with the wrong crowd and got into trouble and she noticed your anger management problem. You were distraught after being charged and lived with her. You were up every night crying, and would ring her from work crying. You lost a lot of weight and had to take sleeping pills. She said you knew you had done the wrong thing and would not do it again.
26 A former employer, Greg McNeish, gave evidence that he has known you for 12 years and taught you the rendering trade. He said you were a very hard worker and a family man. He kept in touch with you and you told him about the offences. He said you have taken them very seriously.
27 Finally, Mr Robert Brennan, your wife’s brother-in-law, gave evidence that he has known you for 10 years and that you were a hard worker and devoted family man as well as a good friend prior to the offences. You have discussed the offending with him and have told him, and still tell him, how sorry you are about it. He said that you went about getting treatment all by yourself and have shown insight into the reasons for your offending and that your attitude to violence has changed.
Submissions on your behalf
28 Your counsel submitted that while your prior criminal history indicates some anger management problems which had not been addressed, there had been a significant gap in offending between 2007 and 2012 during which you worked very hard and stayed out of trouble. He submitted that in spite of your offending you have been a very responsible partner, parent and employee. He submitted that the circumstances of these offences were very unusual, that the offending occurred on the spur of the moment, when you were under a lot of emotional strain and lost judgment in the context of a perceived belief that you were going to lose your wife and family; that you have sought treatment, demonstrated insight and remorse, and have very good prospects of rehabilitation. He submitted that specific and general deterrence were of less relevance in this case because of the unusual circumstances of the offences. The community did not need protection because it was very unlikely that you would offend again due to the special reason for the offences occurring. In addition, he submitted that the injuries suffered by the victim Mr Cole were minor (in the form of cuts and abrasions); no weapon was used to break into the property or used against Mr Cole; the incident in the home was of very short duration; and there was no motive of robbery.
29 In the circumstances he submitted that the court should consider imposing a CCO with a lengthy supervision period which would allow you to remain with your family and continue your rehabilitation efforts. Alternatively, it was submitted that a modest term of imprisonment be imposed.
Prosecution submissions
30 The prosecution submitted that an immediate custodial sentence is the only available sentencing option to recognise the seriousness of the offences in the light of the maximum penalties. On this basis, any term of imprisonment likely to be imposed would exceed a term of 3 months and, for this reason, it was submitted, it was not open to the Court to impose a CCO for any of the charges. The prosecution proposed a range in relation to the aggravated burglary charge in terms of a total effective sentence of between 2 and 4 years with a non-parole period of between 18 and 24 months. I was referred to Sentencing Snapshots No. 124 June 2012 for aggravated burglary and particularly to the data that the median length of imprisonment was 2 years; the median length of the non-parole period was 1 year and 6 months. However, I note that reference to statistical information is of limited assistance since the circumstances of each case included in the statistics are not known.
Sentencing considerations
31 In sentencing you I must consider just punishment, deterrence (both specific and general), your prospects of rehabilitation, denunciation, condemnation and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
32 I turn to the matters in your favour which I have accepted.
33 First, your plea of guilty. You pleaded guilty at the committal mention on 9 October 2012. I accept that your plea indicates remorse on your part. I also accept the documentary and viva voce evidence that you have expressed a great deal of remorse for your offending. Your plea warrants a substantial discount not just because it indicates remorse but also because you are entitled to a statutory discount for that plea. I acknowledge that your plea is of social utility and that the community has been spared the cost of a trial. No witnesses were required to give evidence against you.
34 Second, your prospects of rehabilitation. I acknowledge from the expert evidence presented that since these offences you have undertaken appropriate anger management counselling, cognitive behaviour therapy, and have expressed remorse, regret and shame for your conduct. You have matured and learned how to deal with your emotions in appropriate ways. You have a very good work record, are a devoted family man, and have the continuing support of your wife and family. Given the steps that you have taken since then to address the anger management issues which have contributed to your offending, I consider that you have good prospects of rehabilitation.
35 Third, I accept that your offending conduct occurred in the context of your emotional response to the inappropriate relationship which you suspected that your wife was having with Jason Cole. Your counsel also submitted that the circumstances of your offending are unusual. I reject this submission as the courts have recognised that too many cases like this are sparked by domestic disputes or issues and for this reason general deterrence remains an important sentencing consideration.
Reasons for imposing custodial disposition
36 In all the circumstances, even though I accept the matters put on your behalf by your counsel, I consider for the following reasons that I have no alternative but to impose a custodial disposition on the charge of aggravated burglary.
37 Firstly, aggravated burglary is a very serious offence. Ordinarily in such cases the appropriate penalty is a term of imprisonment to be served immediately. The principles of general deterrence loom large in cases such as this. In the company of a man larger than yourself, you broke into a man’s home where he lived with his mother, late at night, and attacked him in his own home in front of his mother while he was cowering on the floor. This is a serious example of a person taking the law into his own hands in a misguided attempt to punish a man he thought was stealing his wife.
38 Secondly, you have a number of prior relevant convictions. On 2 August 2001 you were convicted of intentionally causing injury in circumstances where you were present when the victim was shouldered to the ground and kicked in the head. The incident occurred when you and another person at an 18th birthday party challenged two men who were allegedly breaking into a nearby house and got involved in a fight with them. You were convicted and placed on a Community Based Order for 12 months to perform 100 hours of unpaid community work.
39 On 12 February 2007 you were involved in a road rage incident. You were tailgating a driver and flashing your lights at the driver. When the car before you reached an intersection you got out of your car, punched the driver’s side window and side mirror and drove away. You were convicted and fined $250 for unlawful assault and criminal damage
40 On 24 April 2007, you were convicted and fined $250 for wilfully damaging property. On that occasion you were engaged in a verbal altercation with a man you knew and, while the victim tried to leave in his car, you smashed your fist into his windscreen, splintering it.
41 You have been put on Community Based Orders on two occasions in the past, once in 2001 (as mentioned above) and again in 2003, on a 6 month order, for handling stolen goods. You completed both Community Based Orders.
42 However, your prior conduct demonstrates a number of instances of loss of control and violent behaviour.
43 I therefore have no alternative but to sentence you to a term of imprisonment for the aggravated burglary and the assault.
Sentence
44 On Charge 1, aggravated burglary, I convict and sentence you to a term of imprisonment of 12 months. This is the base sentence. In view of the length of the term of imprisonment, the imposition of a Community Corrections Order is not an option.
45 On Charge 2, common law assault, I convict and sentence you to a term of 6 months’ imprisonment. In view of the length of the term of imprisonment, the imposition of a Community Corrections Order is not an option.
46 On Charges 3 and 4, criminal damage, you are sentenced to 14 days’ imprisonment on each charge.
47 On the question of whether there should be any cumulation I note that charges 1 and 2 were committed in the same place and at the same time and there is some degree of overlap. However, the charges are discreet and total concurrency would fail to do justice.
48 Accordingly, I direct that three months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1. The total effective sentence is therefore 15 months’ imprisonment.
49 I turn to the question of the minimum term to be served before you become eligible for parole. I understand your counsel to have urged me to release you on a longer than usual period of parole. Whilst there is no two-thirds rule, I intend to fix a shorter minimum non-parole period than usual. I am doing so for the following reasons: while I recognise that there is a punitive element to the non-parole period, I intend to credit you for the dedicated efforts you have made to address your emotional issues and to pursue your rehabilitation in the context of solid employment and a supportive family. I consider that an early release will give you the chance to re-integrate quickly into the community while still being subject to supervision.
50 I therefore fix a minimum term of 6 months before you become eligible for parole.
51 Pursuant to s.6AAA of the Sentencing Act I declare that but for your plea of guilty I would have sentenced you to a total effective sentence of 22 months with a with a non-parole period of 14 months.
52 The prosecution also seeks a compensation order, which you do not oppose. I therefore order that you pay Jason Cole compensation in the sum of $431.20.
53 Finally, the prosecution seeks a retention order pursuant to s.464ZFB(1) of the Crimes Act 1958, which you do not oppose. Having considered the seriousness of the offences, 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 prior convictions of the respondent are such as to warrant the making of the order;
· The order is not opposed
· And the granting of the order is in the public interest.
54 I order pursuant to s.464ZFB(1) Crimes Act 1958 that the forensic sample and any related material and information obtained pursuant to the informed consent given by the respondent on 25 June 2012 be retained for placement on the database.
55 Do you seek a stay for the compensation order? Is any stay sought in relation to the payment of the compensation order?
56 MR CRISP: Yes, Your Honour.
57 HER HONOUR: Very well, how long a stay?
58 MR CRISP: Nine months.
59 HER HONOUR: Nine months. Do you want to say anything about that?
60 MR BALLECK: No, Your Honour.
61 HER HONOUR: Very well. We might just adjourn briefly while the order is prepared. Very well, thank you.
- - -
0
0
0