R v Tripoli

[2000] VSC 298

SUPREME COURT OF VICTORIA
CRIMINAL DIVISION	Not Restricted

No. 1494 of 1999

THE QUEEN

v.

ANTONIO TRIPOLI

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JUDGE:	VINCENT, J.
WHERE HELD:	MELBOURNE
DATE OF SENTENCE:	27 JULY 2000
MEDIUM NEUTRAL CITATION:	[2000] VSC 298

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CATCHWORDS:      Guilty plea to reckless conduct endangering life, aggravated burglary and causing serious injury intentionally – Violent behaviour – Domestic dispute.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J. McArdle Q.C.	Office of Public Prosecutions
For the Accused	Mr. J. Kaufman	David Tonkin & Associates

HIS HONOUR:

1. Antonio Tripoli, you have pleaded guilty to one count of reckless conduct endangering life, one count of aggravated burglary and one count of causing serious injury intentionally.

1. You have also admitted the commission of a number of criminal offences, arising out of four court appearances between January 1984 and January 1999.  They relate, inter alia, to convictions for malicious wounding, unlawful assault, discharging a firearm in a populous place and breaching an intervention order.  It is to be noted that most of the offences committed by you involved some form of violent behaviour and that one of them, an offence of malicious wounding committed in 1984, resulted in the imposition of a sentence of imprisonment for a period of two years with a non parole period of 15 months.  Also relevant, is the fact that you were convicted in the Magistrates' Court at Shepparton on 15 January 1999, that is, only two months before you committed the offences which brought you before this Court, on three counts of breaching an intervention order.  On that occasion, a sentence of three months imprisonment, suspended for two years, was imposed.

1. The background to and circumstances surrounding the commission of the crimes for which I must now impose sentence upon you have been outlined by the prosecutor, Mr McArdle, in the course of the plea and I need only set them out in a relatively brief form at this stage.

1. Your two victims were your wife, Maria, and your son, Charles.  It appears that the relationship between these two persons and yourself had been strained for quite some time prior to the morning on which these offences were committed.  You were separated from your wife and an intervention order had been granted on 27 November 1998 preventing you from contacting either of them, or attending at 72 Olympic Avenue where they resided, and it further stipulated that you were not to possess, carry or use any firearm.

1. At approximately 6.30 a.m. On 15 March 1999 your son Charles arrived at the house in Olympic Avenue.  Having parked his car he went to the back door where he was confronted by you.  You had in your possession a sawn-off .22 calibre Stirling rifle.  You threatened him with this weapon in order to force his mother to speak to you or to gain entry to the premises.  You pointed the weapon directly at the centre of his body, adopted, what he described as, a kneeling or squatting position and called out, "Open the door and get your mother out here or I'll shoot you".   To reinforce this demand, you repeated this expression once or twice more.

1. Maria Tripoli was then heard opening the back door.  You called to her, "Open up or I'll shoot him".  This expression was also repeated.

1. As soon as the door was opened, your son quickly jumped inside the house closing and locking the door behind him, leaving you alone outside with the rifle.  Your wife immediately called the police to obtain assistance and Charles went to his bedroom to obtain a baton to defend himself and his mother.  You then fired one or more shots at the back of the house, presumably in frustration.  Whilst your wife and son were in the loungeroom of the house, you fired two further shots in the vicinity of the front door, effectively shooting out the window beside the door which enabled you to gain entry to the home.  A struggle ensued between your son and yourself.  As this was taking place, Maria Tripoli fled the home through the broken window and sought assistance from a neighbour.  In the course of the struggle with your son, you fired another two shots, one of which damaged his clothing and the other penetrated his thigh causing him a serious injury.  In a statement made to the police, he described the situation as follows:  

"I told mum to call the police which she did.  There was a shot maybe two shots.  I heard them, but I don't know where they went, but it sounded like somewhere near the back door.  I went into the lounge and saw mum was ringing the police.  When I was in the lounge two shots were fired through the front skylight window beside the front door.  Just before this I had gone into my bedroom and got a wooden baton to protect myself and my mother.  It was when I was in the lounge with mum that's when the shots went through the skylight window at the front.  My father forced his way into the house, and I struggled with my father at the door of the lounge just inside the front window where he entered forcibly.  I struggled with him towards the kitchen and was very fearful for myself and mum.  We didn't want to get shot.  My father then pulled away from me and broke free.  He was about two metres away and pointed the gun and shot at me.  The bullet missed and he shot again and the bullet hit me in the upper left leg". 

1. Despite being wounded, Charles was able to strike you about the head a number of times with the baton, before you retreated from the premises.  You then went to the home of a neighbour to whom you falsely protested that you had been roughly handled.  Eventually, you were taken to a doctor where you received treatment for injuries to your scalp.  A psychiatric examination was undertaken shortly afterwards by a nurse who noticed nothing unusual in your manner.

1. The offences in which you engaged seem to have been, in part at least, the product of a sense of hurt and rejection that you felt towards your wife after the breakdown of your relationship with her.  In the course of the plea, your counsel, Mr Kaufman, asserted, and I   accept, that you found it almost impossible to acknowledge that your marriage was over.  It is evident that you were  frustrated and very angry on this morning and that you were prepared to employ violence and the threat of violence to achieve your objectives.  With respect to your son, Charles, it appears that you felt a degree of underlying hostility towards him for at least two reasons, first, he had supported his mother in the matrimonial dispute and, second, as a consequence of your reasonably held belief that he was using drugs which you saw as bringing shame upon the family.  These two factors may provide a partial explanation for your treatment of him and, in particular, how it came about that you were prepared to threaten him in such a terrifying fashion and then deliberately fire your weapon at him.

1. You claim to have gone to the house not intending to hurt anybody.  I find some difficulty in accepting this assertion given that you took with you an unregistered sawn-off rifle, along with a quantity of ammunition, and that it was you who initiated the attack.  However, for sentencing purposes, and bearing in mind the standard of proof applicable to the establishment of such a significant fact, I consider I should proceed on that basis.  Nevertheless, you have offered no explanation as to where you obtained the rifle, nor why you perceived it was necessary to carry a quantity of ammunition with you.  Accepting that you may have armed yourself as a display of force or to prevent or respond to the potential resistance of your wife and son, it must be remembered that your presence at the home on the morning of 15 March 1999 constituted the fourth occasion on which you had breached an intervention order which was in place to protect your family from the very type of behaviour in which you engaged.  You acted in blatant disregard of that order and, more importantly, exposed your victims to extreme fear and at the risk of a tragedy.  I have had regard to the victim impact statements which were presented to the Court and I note that, unsurprisingly, both of your victims are suffering from post traumatic stress disorder.  Your son was left with a permanent scar on his thigh and an injury which often causes him discomfort.

1. During the course of your plea your counsel indicated that alcohol played a part in all of your prior convictions.  No such excuse could be proffered on this occasion as these are offences which were committed at approximately 6.30 a.m. And there is nothing to suggest, nor was it contended, that you were affected by alcohol at that time.  I am satisfied beyond reasonable doubt that your actions were planned and deliberate, as well as being unlawful and extremely dangerous.  As I intimated, it is very fortunate that the confrontation which took place did not end tragically.  The dangers involved in taking a loaded firearm and ammunition into an emotionally charged situation as you did hardly need to be emphasized.

1. The courts must make clear beyond any doubt that the use of violence, particularly when weapons are involved, in the course of domestic disputes, simply cannot and will not be tolerated.  A sentencing judge must, when dealing with a situation such as this, reflect the repudiation of the community of the resort to violence to resolve personal issues.  This is of particular significance in situations where a relationship breakdown is involved.  There has been, after all, a whole system of law and an entire court structure put in place in our society for the precise purpose of dealing with such problems.  Regrettably, judges in the criminal division of this court are regularly confronted with perpetrators, almost always male, who, unable to come to terms with relationship breakdown or rejection, give vent to their anger and frustration.  Those who engage in behaviour of this kind must anticipate that the law will take a firm stand and appreciate that substantial penalties may well be imposed.  The level of your personal culpability is increased by the reason of the fact that you acted against the background of an order which you knew was specifically intended to afford a measure of protection to your wife and son and to act as a barrier to any physical and psychological harassment on your part.

1. The courts must, when imposing a sentence, and to the extent that it is consistent with the application of other relevant sentencing principles, endeavour to deter those who attempt to resolve personal disputes in the fashion which you adopted or who give way to feelings of frustration and anger because of the breakdown of personal relationships.  For that reason I am of the view that the element of general deterrence must assume significance as a sentencing consideration in your situation.  Specific deterrence is also relevant in your case.  You acted against a background of violent behaviour and in disregard of a Court order.

1. With regard to your personal circumstances you are now aged 60 years.  You arrived in Australia when you were about 14 years old.  You married and had four children.  You were employed, mainly with Telstra and its forerunner, for most of your working life, and I understand that you have been, until you went into custody, operating a coffee shop business in Shepparton.  You have been an active member of the Shepparton Runners Club and the Goulburn Valley Football Umpires Association.  A number of witnesses gave evidence at your plea, which I accept, that you are a hard working man who is well regarded in your local community, although you sometimes get into trouble after consuming alcohol.  However, as I have earlier indicated, you are also no stranger to the employment of violence.

1. In your favour, you have pleaded guilty to these charges and, your counsel submitted, you have shown remorse for your actions by voluntarily making a payment of $15,000 to your son as compensation for the injury which he sustained.

1. With respect to your prospects of rehabilitation, the situation appears to be relatively favourable.  You have a number of persons who are prepared to assist you, including a friend who has indicated that he would offer you employment and housing upon your release from prison.

1. In all of the circumstances, I have decided that the appropriate sentences are:  On Count 1, that is the count relating to reckless conduct endangering life, a sentence of imprisonment for a period of two years.  On Count 2, a count of aggravated burglary, imprisonment for one year to be served concurrently with the sentence imposed upon Count 1.  On Count 3, that is the count of causing serious injury intentionally, I sentence you to a term of imprisonment for three years.  One year of the sentence imposed on Count 1 is to be made cumulative with the sentence imposed on Count 3.  That creates an effective sentence of four years.  I fix a non parole period of two years and six months.  I declare that the period of pre-sentence detention of 501 days that you have already undergone be reckoned as having been served under the sentence hereby imposed.  I direct that this declaration and its details be entered in the records of the Court.

1. Anything else?  There are some other orders I think which I have already signed.  Yes, thank you.

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