Director of Public Prosecutions v Anzac Talaumi
[2020] VCC 1385
•8 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Suitable for Publication |
Case No. CR-19-01993
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANZAC TALAUMI |
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JUDGE: | HER HONOUR JUDGE LEWITAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 August 2020 | |
DATE OF SENTENCE: | 8 September 2020 | |
CASE MAY BE CITED AS: | DPP v Anzac Talaumi | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1385 | |
REASONS FOR SENTENCE
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Subject:Intentionally Cause Serious Injury (Custodial Officer), Intentionally Cause Injury, Assault Emergency Worker on duty.
Cases Cited: R v Verdins [2007] 16 VR 269.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms B Goding | Abbey Hogan Office of Public Prosecutions |
| For the Accused | Mr D Gibson | Victoria Legal Aid |
HER HONOUR:
1 Anzac Talaumi, you have pleaded guilty before me to one charge of intentionally cause a serious injury (custodial officer) for which the maximum penalty is 20 years' imprisonment, one charge of intentionally cause injury for which the maximum penalty is 10 years' imprisonment, three charges of assault custodial officer on duty and one charge of assault emergency worker on duty. The maximum penalty for each charge of assault custodial officer or emergency worker on duty is 5 years' imprisonment.
2 At the time of the offending you were completing a four-year sentence imposed by the County Court on 2 September 2016. You were housed in the Erskine sub-acute Mental Health Unit at Ravenhall Correctional Centre, where you had been inducted on 31 December 2018 after you were cleared to move from the Aire Unit (an acute unit). You indicated some hesitation about the move before 31 December 2018. The six victims in this matter were all correctional officers.
Circumstances of the offending
3 At 9.10 am on 3 January 2019 you were in the East Wing of the Erskine Unit of the Ravenhall Correctional Centre. You were not residing in that wing. Correctional officers Kylie Thomas (Thomas) and Dean Shipham (Shipham) asked you about a folded up piece of paper which you were holding in your hand. You did not answer them.
4 Supervisor Elise Smith (Smith) then asked you about what you were holding and you again did not answer.
5 Thomas then followed you to your cell in the North Wing where she again asked you to show her the piece of paper. You showed her, saying 'It’s just coffee. What’s the fucking deal?' and told the officers to 'fuck off'. Thomas explained that there was not a problem with the coffee, but that you had been asked to do something and had not complied and that there was no need for you to swear.
6 Shipham was also present at your cell and told you not to speak to officers in this way. He asked you to enter your cell to be locked down due to poor behaviour and so that you could calm down, to prevent further escalation.
7 You then swung at Shipham with a clenched fist, striking him to the right cheek, sending him backwards and causing him to fall to the floor.
8 You swung at Thomas, glancing the right side of her face and causing her to fall backwards and hit her head on the edge of the cell doorway (Charge 3- assaulting a custodial officer on duty).
9 You then advanced towards Shipham, who regained his feet and was retreating with his back to you. You punched him again, causing him to fall to the ground, face forward. Shipham made no attempt to stop himself hitting the floor. Shipham remained lying face down on the floor. He was bleeding from his forehead. Shipham does not remember being struck, and the next thing he recalled was waking up at The Royal Melbourne Hospital (Charge 1 – intentionally cause serious injury).
10 Thomas tried to draw you away from Shipham. You continued to swing your fists at her.
11 Smith entered the North Wing to assist Thomas to disengage you and move to safety. As she approached she instructed you to 'calm down and get back'. You punched her twice to the face. She fell to the floor, hitting her head on a brick wall as she fell backwards. Smith does not remember falling, and next recalls waking up on the floor in the corridor (Charge 2 – intentionally cause injury).
12 You continued towards Thomas who retreated, holdings her hands in front of her and shouting at the offender 'Don't' and 'No, Anzac'. She went into the East Wing and physically held the door closed as it did not have a lock. Thomas called for assistance via the radio and the security team responded. Thomas then set about securing the East Wing and waited for backup to arrive.
13 Robert Lightowler (Lightowler), Arran Foy (Foy) and Tan Le (Le) and other correctional officers responded to Thomas' radio call. They entered the North Wing corridor, where you were still acting aggressively, and swinging a plastic chair at the officers. You yelled at them to 'fuck off' and threatened them to 'fuck off or I'll hit you too'.
14 Lightowler and officers directed you to 'stop' and 'put the chair down'. You dropped the chair and headed away from Lightowler and back towards Shipham and Smith who were still on the ground.
15 Lightowler directed you into Lounge Room 3 and attempted to restrain you with Foy and Le. You threw closed-fist punches at the officers. After disengaging they attempted to restrain you again. You continued to direct punches at them. You struck Lightowler to the jaw (Charge 4 – assaulting a custodial officer on duty), Foy to his right temple (Charge 5 – assaulting a custodial officer on duty), and Le to the chin (Charge 6 – assaulting a custodial officer on duty). Each officer suffered pain and minor injuries.
16 With the assistance of additional officers, you were restrained on the ground, mechanical restraints were applied and you were moved to the Erskine Unit observation cells. You were subsequently transferred to Forbes Management Unit and were generally compliant with staff directions during this transfer.
Nature of injuries
Dean Shipham (Charge 1)
17 When officers and medical staff approached Shipham, he was confused and disorientated. Registered Nurse, Kylie Stokdale, was the first medical professional to attend the scene and observed bruising and swelling to his face rendering him unrecognisable, flesh wounds to his forehead that were bleeding profusely and an obvious deformity to his left wrist. She arranged for an ambulance to attend and Shipham was transported to The Royal Melbourne Hospital.
18 Shipham suffered the following injuries:
a. Deep left-sided forehead wound. The wound was surgically repaired under general anaesthetic on 4 January 2019. Non-viable tissue was removed and the wound closed and sutured.
b. Superficial wound to the upper right lip. The wound was sutured during the surgery to his forehead.
c. Swollen right cheek. Soft tissue damage and bruising, without any underlying fractures.
d. Fragmented fractured left distal wrist with impact at the fracture side, and a further fracture through the base of the ulna.
e. A mild traumatic brain injury, namely the period of concussion.
19 Whilst in the emergency department of The Royal Melbourne Hospital, Shipham was given sedation and his wrist manipulated with traction into a better position and placed into a plaster back slab, pending surgery.
20
Shipham underwent a surgical procedure to realign the bones on
4 January 2019. The operation involved an open reduction and internal fixation of the left radial bone. This process involved a surgical incision and the placement of plates and screws to fix the bone into the best position. Small bony fragments that were blocking the successful reduction of the bone were removed. Shipham’s wrist was then placed in the plaster cast. Shipham was discharged from hospital on 5 January 2019, with subsequent outpatient follow up.
21 Shipham was diagnosed with Post Traumatic Stress Disorder (PTSD) as a result of the offending, requiring ongoing counselling and psychological treatment and has not returned to prisoner contact duties.
Elise Smith (Charge 2)
22 Smith suffered significant pain and swelling to her right cheekbone and was also conveyed to The Royal Melbourne Hospital where she remained under observation. She was discharged later the same day. A blood clot formed in one of Smith’s cheekbones, which put pressure on nerves in her face and caused strong pain in this area.
23 Smith has been diagnosed with PTSD as a result of this offending, requiring ongoing counselling and treatment. She has not returned to prisoner contact duties.
Kylie Thomas (Charge 3)
24 Correctional Officer Thomas suffered from headaches and a lump on the back of her head and was treated by her local practitioner. She suffered a perforated right eardrum, a torn tendon in her lower right jaw, bruising and soreness to her right shoulder and back and significant bruising to her right buttock.
25 Thomas has been diagnosed with PTSD as a result of the offending, requiring ongoing counselling and treatment and has since ceased her employment as a custodial worker.
Tan Le (Charge 6)
26 Correctional Supervisor Le had difficulties sleeping as a result of seeing his injured fellow officers on the ground and felt anxious when he entered the Erskine Unit.[1]
[1] Exhibit D, p 4.
27 The facts in this case are very serious and disturbing. The aggravating aspects of Charges 1 and 2 were that the offences were committed while you were in custody against prison officers who were performing their usual duties. In Hope v The Queen; Pua v The Queen[2](Hope) the Court of Appeal (Priest, Beach and Kaye JJA) stated:
[2] [2018] VSCA 230, [73] and [74].
It was correct for the sentencing judge to observe that it was an aggravating circumstance of the applicants’ crimes that their offences were committed while they were in custody and against prison officers who were merely performing their usual duties in an entirely appropriate manner. The common law has long recognised that it is an aggravating circumstance to assault a law enforcement or corrections officer while performing his or her duty. Redlich JA (with whom Buchanan and Nettle JJA agreed) explained the reason for this, in respect of police officers, in Director of Public Prosecutions v Arvanitidis.[3] His Honour said:
It is a serious offence to assault police officers in the execution of their duty ordinarily requiring a significant element of deterrence in the sentences to be imposed. The courage of police officers in protecting lives and property is something upon which the community depends. It is incumbent on the court to impose appropriate sentences to demonstrate support for the authority of police officers who undertake a difficult, and dangerous task in the execution of their duties in maintaining law and order. Ambulance officers, and others performing such essential public duties, are to receive a similar measure of support and protection. Where the offender knows or ought to have known that the victim was discharging a public duty of this sort, a more severe sentence will usually be imposed to deter such persons from violent assaults on them when performing their duties…. (citations omitted)
The same reasoning applies with equal force in respect of prison officers performing the essential public duties that they perform.
[3] (2008) 202 A Crim R 300, 314 [50] (Arvanitidis).
28 The impact on the victims has been profound and long lasting. Shipham, Smith, Thomas and Le have filed victim impact statements. I accept that your offending has had long-term physical, psychological and social impacts on them.
Gravity of offending
29 The defence concedes that the offending is clearly serious and acknowledges that the impact on the victims has been profound, particularly the victims of Charges 1, 2, and 3.
30 Overall, I would classify each of the offences the subject of the indictment as a serious example of the offence falling within the mid-range of gravity. The injuries suffered by each of the victims the subject of Charges 1 and 2 were serious examples of the type of legally defined injury. The effects of the assault have been ongoing. The offending continued against successive officers who sought to deescalate the situation. The offending was against custodial officers who were entitled to go about their jobs without being assaulted.
31 As has been pointed out by your counsel, there are however some mitigating factors. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial. Further, I take it into account in your favour that you intimated your intention to plead guilty to these charges at the earliest opportunity. You have expressed your regret over the offending and stated that it should not have occurred.[4] In the circumstances I accept, that in your case your plea indicates some remorse for your actions.
[4] Exhibit 2, [68].
32 I have been told something of your personal history and your circumstances. You were born on 25 April 1997 and are 23 years old. At the time of the offence you were 21 years old.
33 You were born in Boutasi, Samoa. Your mother, Faatasalaala Benina, was Western Samoan. You never met your father, an American Samoan, who left before you were born. You are the oldest of a sibship of six. Your mother currently lives in St Albans.
34 You lived in Samoa with your mother and stepfather until you were seven years old. You were then culturally adopted by your mother’s sister and her husband. In 2006 you moved to New Zealand with your adoptive parents. Things did not go well and you suffered physical abuse.
35 In 2010 your adoptive parents moved to Melbourne, leaving you in New Zealand. You then returned to Samoa where you lived from 2010 to 2013, attending school. You returned to New Zealand in 2013 where you attended school in year 8 which was the end of your schooling.
36 You then returned to live with your adoptive parents in Melbourne in September 2013. There were continuing difficulties at home which led to periods of homelessness. Your mother came to live in Melbourne in 2015 and also lived with your adoptive parents.
37 In 2015 you completed a Certificate 2 in Warehousing through Vostro Institute in Sunshine and then obtained employment through your uncle at SKM Recycling in Campbellfield.
38
On 11 October 2015 you were remanded in custody. You were released on bail on 17 November 2015. You were then remanded in custody again on
6 January 2016 where you have remained ever since.
39 On 18 February 2016 your visa was cancelled by the Department of Immigration and Border Protection as a result of the previous offending.
40
On 27 July 2016 you received a sentence of imprisonment which ended on
s24 February 2020.
41 You are currently the subject of an Interim Supervision Order.
42 You abused cannabis from the age of 10 and alcohol from your early teens. Prior to your incarceration, you were using up to 5 grams of cannabis daily and drinking two boxes of beer a day.
43 Two years ago whilst in Port Phillip prison, you began to have strange thoughts about being controlled by a microchip in your head.
44
In a forensic psychiatric report dated 12 August 2020[5] Dr Prashant Pandurangi summarises your mental health treatment in the prison system at paragraphs 24 and 25. At the end of March 2019 you were transferred to the Thomas Embling Hospital under a secure treatment order. You were subsequently hospitalised three times through 2019 and 2020 for mental health issues. You were transferred to Barwon Prison on 8 January 2019. You were transferred to the Melbourne Assessment Prison (MAP) on
11 February 2019 and were initially placed in a Muirhead cell (wet cell). You were diagnosed with epilepsy after suffering seizures in mid-late 2019.
[5] Exhibit 2.
45 You are currently being prescribed:
(i) clozapine (an anti-psychotic medication)
(ii) paliperidone depot (a long-acting injectable antipsychotic medication)
(iii) sodium valproate (a mood stabiliser)
(iv) clonazepam (a benzodiazepine).
46 You have admitted before me to prior convictions. There are 22 such convictions, involving 2 court appearances in 2016. The nature of some of those prior convictions, in particular the convictions for intentionally cause a serious injury, assault police officer, resist police officer and resist protective services officer are such that they are highly relevant to my task of sentencing you today.
47 As well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I must also consider the question of the protection of members of the community from you and bear in mind - - -
48 OFFENDER: Your Honour - - -
49 HER HONOUR: Yes.
50 OFFENDER: I've already, I've already, um, served - served the sentence of - of, ah, assaulting police.
51 HER HONOUR: Mr Gibson.
52 MR GIBSON: Thank you, Your Honour. I think Mr Talaumi is confused about the previous incident, if I could just explain to Mr Talaumi.
53 HER HONOUR: Yes. Do you want me to disengage from the video?
54 MR GIBSON: It is a matter for Your Honour. I think I can solve it within 30 seconds, if that assists the court.
55 HER HONOUR: Yes, thank you, thank you.
56 MR GIBSON: Mr Talaumi, Her Honour is not sentencing you for other matters for which you have received a sentence in the past.
57 OFFENDER: Yep.
58 MR GIBSON: This is about the most recent matters involving the corrections officers, all right. You are not being sentenced for anything else.
59 OFFENDER: Okay.
60 MR GIBSON: All right, thank you. Thank you, Your Honour.
61 HER HONOUR: Yes, thank you, Mr Talaumi.
62 OFFENDER: Thank you. Thank you, Your Honour.
63 HER HONOUR: I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I am called upon by the Sentencing Act 1991 (Sentencing Act) to manifest the community's denunciation of your conduct and generally to impose a just punishment.
Youthful offender
64 On the other hand I do not apply those considerations with as much force as I might if you were older. You were 21 years old at the time of the offending and therefore a young offender. Although you are no longer a young offender, at the age of 23 you are still a youthful offender and must and will be sentenced as such. Your rehabilitation is a primary concern in fixing an appropriate sentence.
65 Your mother Faatasalaala Benina and aunt Aliitasi Falua dialled into the hearing of the plea to support you. Your mother currently lives in St Albans but has had limited contact with you in custody because of COVID restrictions. At this stage your prospects for rehabilitation remain guarded. In fixing an appropriate sentence I must seek to maximise such chances of your rehabilitation as there may be.
The application of the principles in R v Verdins[6] (Verdins)
[6] [2007] 16 VR 269.
66 In Verdins the Court of Appeal stated that impaired mental functioning is relevant to sentencing in at least six ways.
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor intending to mitigate punishment.
67 The prosecution concedes that Verdins principles 1 and 3-6 are engaged.
Verdins Principle 1 – Was your moral culpability reduced?
68 In Dr Pandurangi’s opinion you have developed a paranoid psychotic illness, namely paranoid schizophrenia.
His illness is characterised by a bizarre delusional belief system, grandiose delusions of identity, passivity experiences, auditory hallucinations and disorganised behaviour.[7]
[7] Exhibit 2, [46] – [47].
69 Dr Pandurangi stated:
So, on balance, it is likely that the psychotic illness he was developing or experiencing at the time, would have impaired his ability to exercise appropriate judgement, affected his ability to make calm rational decisions and would have contributed to the offending.[8]
[8] Exhibit 2, [60]
70 You continue to experience psychotic symptoms and are being treated with medication.[9] Your underlying mental illness is not causally associated with the use of illicit drugs.[10]
[9] Exhibit 2, [48].
[10] Exhibit 2, [49].
71 The court in Verdins identified a variety of ways in which the courts had held that impaired mental functioning might reduce moral culpability, as follows:
Impaired mental functioning of the offending may reduce the offender's moral culpability if it had the effect of:
(a) impairing the offender's ability to exercise appropriate judgment;
(b) impairing the offender's ability to make calm and rational choices, or to think clearly;
(c) making the offender disinhibited;
(d) impairing the offender's ability to appreciate the wrongfulness of the conduct;
(e) obscuring the intent to commit the offence; or
(f) contributing (causally) to the commission of the offence.[11]
[11] (2007) 16 VR 269, [26].
72 Both the prosecution and defence agree that your moral culpability is reduced because you were suffering from schizophrenia and your judgement was impaired at the time you committed these offences.
73 OFFENDER: Your Honour - - -
74 HER HONOUR: Yes.
75 OFFENDER: I suffer - I suffer from schizophrenia from - from when I was - I was 17.
76 HER HONOUR: Yes, I understand that, yes, thank you. I will just continue on.
Verdins principle 3 – should general deterrence be moderated?
77 Both the prosecution and defence agree that general deterrence should be moderated having regard to the psychiatric conditions suffered by you at the time of offending and now.
78 In my view general deterrence should be sensibly moderated.
Verdins principle 4 – should specific deterrence be moderated?
79 The defence concedes that your previous offending renders the protection of the public a significant factor. In the circumstances of your case, specific deterrence will only be moderated to a limited extent.
Verdins principles 5 and 6
80 I accept the evidence of Dr Pandurangi that:
His mental health condition has clearly rendered incarceration more onerous compared to others, who don't suffer from a similar condition. His mental health has developed and deteriorated in prison, which required repeated hospitalisations. Given the ongoing risk of violence, he is going to be managed in a highly restrictive regime, in a prison, which is eventually going to affect his prospects of psychosocial rehabilitation, within a custodial environment. He is likely to require ongoing close monitoring of his mental health by a prison mental health staff, to monitor his compliance with medications and any deterioration in his mental health.[12]
[12] Exhibit 2, [62].
81 I am satisfied that the existence of your mental illness at the date of sentencing means that the imposition of a term of imprisonment would weigh more heavily on you than it would on a person in normal health. I am also satisfied that there is a serious risk that imprisonment would have a significant adverse effect on your mental health. I take these matters into account in your favour in mitigation of sentence.
COVID-19
82 The defence further submits that your remand in a period of COVID-19 confinement has placed a further burden on you because of your limited contact with the outside world, reductions in personal liberty within the confines of the prison and the cancellation of educational and rehabilitative courses. No personal contact visits are allowed because of the COVID-19 restrictions. Any contact with the outside world is restricted to telephone calls. In Glen Brown (aka James Davis) v The Queen[13] the Court of Appeal (Priest and Weinberg JJA) accepted that the COVID-19 pandemic is 'causing additional stress and concern for prisoners and their families'.
[13] [2020] VSCA 60, [48].
83 I also accept the submission made by your counsel that the impact of the pandemic increases the burden of imprisonment because of the prospect of catching the virus within the prison community.[14] The impact of the COVID-19 pandemic is a matter I take into account in your favour in mitigation of sentence.
[14]Re Broes [2020]VSC 128, [39].
Bugmy v The Queen [15]
[15] (2013) 249 CLR 571.
84 The defence submits that your background indicates a significant instability and deprivation. In Dr Pandurangi’s opinion:
His formative years were characterised by an absent father, a serious physical illness during infancy, intellectual and attentional deficits and behavioural disturbances. He had a traumatic late childhood and early teens, where he lived away from his mother, in Wellington and experienced physical abuse. He had an early exit from education, without any formal qualifications.[16]
[16] Exhibit 2, [44].
85 In Hope v The Queen; Pua v The Queen[17] the Court of Appeal (Priest, Beach and Kaye JJA) stated:
While the plurality in Bugmy said that the effects of profound childhood deprivation do not diminish with the passage of time and should be given full weight notwithstanding any long history of offending, the Court went on to say:
However, this is not to suggest as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[18]
[17] [2018] VSCA 230.
[18] (2013) 249 CLR 571, 595.
86 I accept Dr Pandurangi's opinion that your personality is mostly shaped by the experiences in your early life, which included the ostracism you faced at school, the attentional problems, intellectual deficits and physical abuse.[19] I take these matters into account when imposing the sentence.
[19] Exhibit 2, [50].
Deportation
87 Your visa has already been cancelled as a consequence of previous offending.
88 The defence submits that the added burden of imprisonment caused by the prospect of deportation will continue while you serve the sentence for this offending. Your counsel referred to Guden v The Queen[20].
As the Crown properly conceded on this appeal, the fact that an offender will serve his/her term of imprisonment in expectation of being deported following release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk.
[20](2010) VSCA 196, [27].
89 In Nguyen v The Queen[21] Redlich J stated:
As to ground 2, I entertain serious reservations as to whether, by analogy, one can invoke the reasoning from Guden v The Queen,[22] Konamala v The Queen,[23] Da Costa Jnr v The Queen[24] and Schneider v The Queen,[25] as to the mitigatory relevance of the appellant's prospect of deportation. In each of those cases the offender at the time of sentencing had an existing visa to reside in Australia. The circumstances of those offenders appears qualitatively different from the appellant who is not lawfully resident in Australia, because his or her visa has expired. It is, however, unnecessary to finally resolve that question. I would grant leave to appeal on the second ground, but I am neither persuaded that His Honour made an error in dealing with the appellant's risk of deportation or that it should have resulted in a different sentence.
[21][2016] VSCA 198, [49iii].
[22](2010) 28 VR 288 (‘Guden’).
[23][2016] VSCA 48 (‘Konamala’).
[24](2016) 74 MVR 489 (‘Da Costa’).
[25][2016] VSCA 76 (‘Schneider’).
90 In this case you told Dr Pandurangi that in terms of the future one of your longer term goals was to go to Samoa to start a business (Oil and Coconut) with cousins. In this case I am not satisfied on a balance of probabilities that the burden of imprisonment will be greater for you because of the risk of deportation.
Statutory Sentencing Scheme in relation to intentionally cause serious injury (Charge 1) and intentionally cause injury (Charge 2)
91 Section 10AA (1) of the Sentencing Act requires that a term of imprisonment be imposed for an offence against a custodial officer under s.16 of the Crimes Act 1958 and that a non-parole period of not less than 3 years be fixed under s.11 of the Sentencing Act unless the court finds under s10A of that Act that a “special reason” exists.
92 I am satisfied beyond reasonable doubt that Shipham was a custodial worker on duty and that at the time of carrying out the offence you knew that Shipham was a custodial officer.[26]
[26] Section 10AA(5) of the Sentencing Act.
93 The offence of intentionally causing injury (Charge 2) against a custodial worker on duty is subject to a statutory minimum custodial sentence of 6 months in accordance with s10AA of the Sentencing Act, unless a special reason exists under s.10A.
94 I am satisfied beyond reasonable doubt that Smith was a custodial worker on duty and that at the time of carrying out the offence you knew that Smith was a custodial officer.[27]
[27] Section 10AA(5) of the Sentencing Act.
95 A special reason exists if the offender proves on a balance of probabilities that at the time of the commission of the offence he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially reduces the offender’s culpability.[28]
[28] Section 10A(2)(c)(i) of the Sentencing Act.
96 Your counsel did not submit that a special reason exists pursuant to s10A of the Sentencing Act.
Serious Violent Offender
97 In relation to Charge 1, intentionally cause serious injury, this offence is a serious violent offence for the purposes of part 2A the Sentencing Act. As you have been previously convicted of intentionally cause serious injury on 2 September 2016 for which you were sentenced to a term of imprisonment, you would then, within the meaning of the Sentencing Act, be a serious violent offender for sentencing purposes in respect of charge one. Your counsel, quite properly, did not resist that such was the case.
98 For sentencing purposes that means that if I consider that a sentence of imprisonment is justified for the sentence imposed for Charge 1, I must regard the protection of the community from you as the principal purpose for which the sentence is imposed. I may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in light of the objective circumstances.
99
The prosecution does not urge that a disproportionate sentence is
warranted.
100 However, every term of imprisonment imposed on a serious offender for a relevant offence must, unless otherwise ordered, be served cumulatively on any sentence of imprisonment imposed on that offender. The serious offender status must be entered in the records of the Court (Sentencing Act s6F).
101 Your counsel submitted that looking at the offending in totality, some concurrency is called for. You have been in custody on unrelated matters since you were remanded on 9 January 2016, effectively almost all your adult life. Your counsel submitted that the sentence imposed should be moderated to avoid the consequences of a crushing sentence for someone who is 23 years old.
102 In R v Taylor[29] the Court of Appeal stated that the provisions of s6D and s6E of the Sentencing Act do not mean that I am required to ignore principles of totality and proportionality in imposing a sentence. For practical reasons in this case it would not be possible to make the sentence imposed on the individual counts cumulative without breaching the well-entrenched principles of totality. Consequently, where some measure of cumulation is appropriate, there will be a measure of concurrency to avoid producing a sentence that would offend against the totality principle. In other words, I propose to tailor the sentence to avoid the imposition of what may otherwise be described as a crushing sentence.
[29](2004) 8 VR 213, 226-227 (per Winneke P).
Sentencing submissions
103 Your counsel conceded that the offending is clearly serious. Your counsel acknowledged that the impact on the victims has been profound. Your counsel conceded that the offending has a high objective seriousness and that a significant sentence of imprisonment is the only outcome open to the Court.
104 As I have stated, these are without doubt serious offences.In Hope[30] the Court of Appeal stated:
An inmate of a prison who intentionally inflicts serious injury on a prison officer can ordinarily expect to receive a substantial term of imprisonment in addition to any term then being served. Moreover, denunciation and general deterrence will usually be paramount considerations in the sentencing of offenders who commit such crimes against prison officers.
[30][2018] VSCA 230, [74].
105 The prosecution submits that you come before the court with relevant prior convictions. The offending was unprovoked and you committed serious offences against multiple victims in quick succession as they were trying to control the situation. The impact on the victims has been significant and long lasting. The prosecution submits that in all the circumstances the imposition of a term of imprisonment with head sentence is the only disposition available to the court.
106 In all the circumstances I have no alternative to the imposition of a custodial sentence. I propose to record convictions on all charges and sentence you to be imprisoned as follows:
Charge 1 – intentionally cause serious injury – to a term of imprisonment of four years and six months.
Charge 2 - intentionally cause injury – to a term of imprisonment of 18 months.
Charge 3 - assault custodial officer on duty – to a term of imprisonment of 6 months.
Charge 4 - assault custodial officer on duty – to a term of imprisonment of 6 months.
Charge 5 – assault emergency worker on duty – to a term of imprisonment of 6 months.
Charge 6 – assault custodial officer on duty – to a term of imprisonment of 6 months.
107 The base sentence is the sentence imposed on Charge 1. I direct that nine months of the sentence imposed on Charge 2, three months of the sentence imposed on Charge 3, and two months of each of the sentences imposed on Charges 4, 5 and 6 be served cumulatively on each other and on the sentence imposed on Charge 1. That results in an effective sentence of six years. I direct that you serve a minimum term of four years before being eligible for parole.
108 I direct that the fact that you were sentenced as a serious violent offender for the offence of intentionally cause serious injury (Charge 1) be entered in the records of the Court.
109 As prescribed by s18(4) of the Sentencing Act I declare that the period of time you have already spent in custody is 196 days. Ms Goding, is that correct?
110 MS GODING: Your Honour, we have had discussions today and we agree that the number is 197 days not including today.
111 HER HONOUR: Yes. Very well.
112 I declare that the period of time you have spent in custody is 197 days. I direct that such be noted in the records of the court.
113
Section 6AAA of the Sentencing Act requires me to state the sentence and non-parole period that I would have imposed but for the plea of guilty. Your plea has saved time, expense, and the need for witnesses to give evidence, and is reflective of remorse. But for your plea of guilty, I would have sentenced you to a term of imprisonment of six years and eight months on Charge 1, two years on Charge 2 and nine months on each of Charges 3,4,5 and 6. I would have directed that fourteen months of the sentence imposed on Charge 2, five months of the sentence imposed on Charge 3, and three months of each of the sentences imposed on each of Charges 4, 5, and 6 be served cumulatively on each other and on the sentence imposed on
Charge 1, making a total effective sentence of nine years. I would have directed that you serve a minimum term of six years before being eligible for parole.
114 Are there any further matters?
115 MS GODING: No, those are the matters, Your Honour.
116 HER HONOUR: Yes, Mr Gibson.
117 MR GIBSON: Nothing further, Your Honour.
118 HER HONOUR: Yes. Thank you. Adjourn the court.
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