A Koonawarra man appealing a jail sentence over his use of a Taser on three children as punishment for ‘‘naughty’’ behaviour could end up being released on an intensive correction order instead.
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Acting Judge Norman Delaney ordered Probation and Parole staff to assess Gavin Cole’s suitability for the community-based order before his next court date in November.
If found suitable, Cole would avoid full-time jail but be required to submit to close monitoring by probation officers, including attending counselling sessions, adhering to drug and alcohol testing and doing 32 hours of community service work a month.
The decision came despite opposition from prosecutor Paul Stanley, who submitted that Cole deserved the six-month jail term handed to him by Magistrate Mark Douglass in the local court at the start of the year.
‘‘This was nothing other than gratuitous cruelty on the part of the appellant,’’ Mr Stanley told the NSW District Court on Wednesday in calling for the jail sentence to stand.
The court heard the assaults, which occurred at Cole’s house, left the siblings with red marks on their bodies.
On one occasion, Cole Tasered one of the children because he climbed on the back fence, while in a separate incident, another child was zapped in the lounge room while watching television.
Magistrate Mark Douglass at the time described the case as one of the most serious examples of common assault he’d ever seen.
Cole initially pleaded not guilty to the crimes, claiming he’d never owned a Taser, let alone used one on the children, but was ultimately found guilty, with Magistrate Douglass saying the case against him had been ‘‘overwhelming’’.
Still, Cole maintained his innocence during much of the time his case was before the District Court, only accepting his guilt and changing from a conviction appeal to a severity appeal in court on Wednesday.
Cole’s lawyer, Andrew Norrie, rejected suggestions that his client’s behaviour was ‘‘gratuitous cruelty’’, saying his actions had been carried out in the context of ‘‘discipline’’.
‘‘I’m not saying it’s correct to do this but there was ... cause and effect, it wasn’t purely for the pleasure of submitting [the children] to cruelty,’’ Mr Norrie said.
The court heard Cole had a health condition that would make his time behind bars more onerous than the average prisoner if he was sent to jail.
Mr Norrie sought to have Cole released on a suspended jail sentence, however Judge Delaney refused, instead ordering the ICO assessment.
The case will return to court on November 27 for the outcome of the assessment and a final sentencing decision to be made.