Director of Public Prosecutions v Mifsud

[2015] VCC 391

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01233

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHILLIP BROCK MIFSUD

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	27 March 2015
CASE MAY BE CITED AS:	DPP v Mifsud
MEDIUM NEUTRAL CITATION:	[2015] VCC 391

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Accused	Mr D. McGann
For the Director of Public Prosecutions	Mr Cecil

HIS HONOUR:

1

Phillip Brock Mifsud on 27 March 2015, that is today, you pleaded guilty to one charge of recklessly cause serious injury to Loren (Billy) Farmer on

6 November 2013.  The offence of recklessly cause serious injury has a maximum penalty of 15 years' imprisonment.  I now turn to the circumstances of your offending.

2

The prosecution tendered and read into the record a summary of prosecution opening; this was Exhibit A on the plea.  I previously sentenced your co-accused for the offending by them at the Latrobe Valley County Court on

12 December 2014.

3The background of this offending by you is that on 6 November 2013 the victim, Loren (Billy) Farmer, had been walking his dog in Junier Street, Morwell.  Mr Farmer's dog became involved in a dog attack with Mr Jarod Talarico's dog.

4

Mr Farmer had unsuccessfully tried to get the attacking dog to let go, first by hitting it with a fist and then with a dog lead.  A neighbour has attempted assisting by using a broom, with no effect.  The complainant, that is

Mr Farmer, has then hit the attacking dog with a closed pocket knife he had in his possession.  Mr Farmer resorted to stabbing the attacking dog in the neck with the knife, attempting to make the dog let go.  A neighbour has then thrown two buckets of water on the dogs to separate them, without success.

5After all of that Mr Farmer has then walked with his dog along Junier Street.  Mr Jarod Talarico has followed him.  Meanwhile, Jarod Talarico's then girlfriend, Rebecca Crozier, has come out of the premises called Anthony Talarico and informed him that their dog had been stabbed.  Anthony Talarico was nearby in Well Street, Morwell, with you. Anthony Talarico said he was coming down. You had driven Anthony Talarico to the scene of the offending.

6

At some stage Jarod Talarico had struck Mr Farmer and caused him to fall to the ground.  Jarod Talarico then punched Mr Farmer again to the face with a closed fist whilst he was on the ground.  By this time yourself and Anthony Talarico had pulled up in your vehicle and ran over to the scene.  All three of you then began kicking Mr Farmer to the head, face and body numerous times whilst he was on the ground.  A witness described the assault on

Mr Farmer as like "they were kicking a bag of potatoes."

7After two or three minutes of assaulting Mr Farmer, Anthony Talarico and you then ran back to the car that you had arrived in and left the area.  Mr Jared Talarico just walked off.  Another witness who also observed the assault and had yelled at you and the Talarico's, "Don't kill the man," observed you and Anthony Talarico run back to your car.  The witness wrote down the registration of the car; QZF 813.  It was this car that you were driving when you were later apprehended by the police.

8On 13 November 2013 you were arrested and conveyed to the Morwell Police Station.  A DVD recorded interview was conducted and whilst you admitted being present, you denied having taken part in the assault.

9

On 9 July 2014 you - together with the Talarico brothers - conducted a contested committal hearing.  Mr Farmer was cross-examined in that proceeding.  I find that Jarod Talarico instigated the assault on Mr Farmer.  I accept that Anthony Talarico also hit Mr Farmer prior to you becoming directly involved in the assault.  I find that each of you then engaged in kicking

Mr Farmer to the head, face and body when it was obvious that the 73 year old man was down and defenceless.  The attack that you were part of was cowardly and savage.

10

I now turn to the impact on the victim, Mr Farmer.  Mr Farmer was a 73 year old man at the time of your offence.  The prosecution summary sets out the effect of your offending on Mr Farmer in the following way.  After you had left the area, neighbours and witnesses had provided assistance to

Mr Farmer - who was not able to stand unassisted - until the ambulance arrived.  Mr Farmer was conveyed by ambulance to the Latrobe Regional Hospital and later transferred to the Dandenong Hospital for specialist treatment for his injuries.

11

As a result of the assault Mr Farmer received the following injuries:  Severe multiple facial bone fractures, broken nose, split lip, tooth damage, black eyes, bruising to his hands, back, lower body and rib pain.  The injuries to

Mr Farmer's face required plates and screws to be inserted to repair the facial fractures.  Mr Farmer continues to suffer from loss of feeling in his face and loss of taste, and ongoing symptoms require him undergo further treatment in the future.

12A copy of Mr Farmer's victim impact statement was tendered on the plea; that was Exhibit B.  In his victim impact statement Mr Farmer sets out the injuries referred to earlier.  He also states that there was bruising to his upper body, he was unable to eat solid foods for some six months, he still has trouble sleeping, he has ongoing discomfort in his face due to the plates still in there, and he has fear and anxiety about the attack.

13You came to the scene in Junier Street, Morwell, on information received by Anthony Talarico.  The dog was not your dog and had absolutely nothing to do with you.  You just joined in on the beating of Mr Farmer; an old man, with your co-accused for no reason.

14I turn to your personal circumstances.  At the time of the offence you were 23 years old.  You are now 24.  You have amassed a significant criminal history prior to the offence for which you are now to be sentenced.  On 4 November 2013, just two days prior to this offence, you were convicted in the Latrobe Valley Magistrates' Court for firearm offences and an assault charge and fined an aggregate sum of $1000.

15In 2008 you had two appearances in the Children's Court for dishonesty matters.

16On 22 April 2009 you were convicted and placed on a community-based order for recklessly cause serious injury and other charges.  The conditions of the community-based order were that you did some unpaid work, that you were supervised, that you received psychiatric treatment, and, as I say, that you were under supervision.

17On 9 November 2009 you appeared in court for possessing controlled weapons and again you were placed on a community-based order.

18On 12 April 2010 you were dealt with in a Magistrates' Court for breach of community-based order for recklessly cause injury and a community-based order for the controlled weapon.  You were also dealt with for unlawful assault and damage to property charges and you were then sentenced to four months' imprisonment, which was wholly suspended for 12 months.

19On 7 July 2011 you were dealt with for theft and other dishonesty charges and given a three months wholly suspended sentence for a period of 12 months.

20In terms of the supervision dispositions in the past you have had two suspended sentences.  You have also had two community-based orders on two occasions and you have breached both of them by other offending.  Although you are young you have had a number of judicial chances to rehabilitate and you have breached those opportunities by further offending.

21As I have said, you were young.  You have not previously spent time in custody.  You have lived with your mother for most of your life.  You have a partner, Amy Hopkinson, and two daughters, aged three and one, with her.  You do not reside with them but regularly see your daughters.  You also have a five year old son from a previous relationship.

22Both of your parents live in the Moe area.  Your parents separated when you were five years old.  You had trouble maintaining concentration at school and were expelled from several schools for misbehaviour.  Your last school was Blackwood High School, from which you were expelled due to drug use.

23After leaving school you did a bricklaying apprenticeship, and have done that type of work in the past.

24According to Dr Kennedy's report dated 3 March 2015, which is Exhibit 1, you last worked some four years ago.  It was put on your behalf that the facial tattoo and the distinctive piercings with accompanying metal work are a barrier to your ability to obtain employment.

25

Dr Kennedy prepared a report to evaluate your psychological status.  In

Dr Kennedy's opinion you have a personality disorder with anti-social features.  Dr Kennedy does not think that you suffer from anxiety disorder, which has been diagnosed by your general practitioner, Dr Daryl Ham.  That is Exhibit 4.  Dr Ham has been prescribing you with four milligrams per day of Diazepam as treatment for your anxiety disorder, as he has diagnosed it.

26It was not submitted on your behalf that the principles set out in Verdins case have any application in this sentencing process, and that is a proper approach by your counsel.  On the history of the medical material and your admitted criminal history, you have been drifting through your short life to date taking or using drugs, unemployed on Centrelink payments, conducting relationships which have resulted in the birth of three children; aged five, three and one year old.  On occasions that you have been in contact with the criminal justice system to the extent of sentencing dispositions of every nature short of actual incarceration.

27I take into account the letters of support from your partner, Amy Hopkinson, your sister, Rebecca Brock, and your aunty, Heather Brock.  They were Exhibit 2 on the plea.  It is hard to reconcile their description of a soft, loving and caring person with the behaviour outlined and accepted by you as the basis for your offence in this case.

28I now turn to sentencing considerations.  As I say, the first consideration I take into account is that you have pleaded guilty on the charge on the indictment.  The plea of guilty was made after some negotiations with the prosecution and after the committal.  Your plea of guilty has utilitarian value of allowing orderly and effective administration of justice.  It gives certainty of outcome in your case and a resolution of the substantive issues raised by your offending.

29Your plea allows for the preservation of court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.  A plea of guilty to this charge indicates and demonstrates some remorse on your behalf for this offending.  Your counsel put that your plea is also designed so that Mr Farmer does not have to give evidence again.  I accept that.  Your plea is clear acknowledgement that you accept your responsibility for your criminal behaviour in this case.  Your plea also recognises you are willing to facilitate the course of justice in the community yourself.

30As I say, Mr Farmer has not had to give evidence for a second time.  The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence; both specific and general, rehabilitation, denunciation of your actions and the protection of the community.

31In sentencing you I must have regard to a range of factors such as the seriousness of your offence, your culpability for it and your personal circumstances.  I am required to balance the interest of the community denouncing your criminal conduct, and secondly, to ensure that as far as possible an offender such as yourself is rehabilitated and reintegrated into society.  I am mindful of the provisions of the Sentencing Act, and in particular s.5(4C), which directs a sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is imposed.  I have reviewed the case of Boulton in considering if a community corrections order would be appropriate in your case.

32Your counsel did not submit a community corrections order was appropriate in this case.  That was a proper approach by your counsel to take in the context of this case and the offending around it.  The objective seriousness of this instance of recklessly cause serious injury to Mr Farmer dictates that the only appropriate penalty is imprisonment.  I have to consider the degree of probability that the serious injury will result.

33You were in a position to see the state that Mr Farmer was in before you became actively involved by kicking him.  After you assessed that you then set about kicking an old man whilst he was incapacitated and defenceless on the ground.  There were three fit young men involved in the attack on an elderly man.  The seriousness of the probable injuries to Mr Farmer would have easily been foreseen by anyone, including you.

34The principles of general and specific deterrence require that a sentence of imprisonment is appropriate in this case.  Denunciation of your behaviour and just punishment also require a term of imprisonment.

35The prospects for rehabilitation are guarded in your case.  You have been diagnosed with a personality disorder with anti-social features by Dr Kennedy.  Dr Kennedy's opinion is that you require professional assistance to enhance your prospects of rehabilitation.  You can access these services in custody but it requires motivation from you to achieve rehabilitation.

36The principle of parity in sentencing is enlivened in this case.  The parity principle is based on the notion of equal justice and the need for consistency in sentencing.

37In this case Anthony Talarico is the most parallel of the co-accused to yourself.  He was sentenced to two years imprisonment with 15 months minimum term before being eligible for parole.  Anthony Talarico had a more extensive criminal history relating to violent offending at the time of his sentence than you have at this time.

38Anthony Talarico, on his own admission, was more actively involved in the assault of Mr Farmer; in particular punching him twice to the head prior to joining in with the kicking by all of you.  Whilst these two distinctive features, on their own, may not amount to an appropriate basis for differential sentence between yourself and Mr Anthony Talarico, in combination - and taking into account that you are a year younger than he was and that this is your first of term imprisonment - a small difference of leniency in sentencing you is appropriate.

39It was submitted on your behalf that a term of imprisonment will affect your relationship with your two daughters.  It was not submitted that this was an issue of hardship requiring mercy in your sentence.  The principles set out in Markovich's case are not enlivened in your particular sentence.

40On Charge 1; you are convicted and sentenced to 18 months' imprisonment.  I fix a non-parole period of 12 months' imprisonment before you are eligible for release.

41Under s.6AAA of the Sentencing Act but for your plea of guilty - that is if you had of been found guilty at the end of a trial - I would have sentenced you to three years' imprisonment with a two year non-parole period.  In short, your plea has saved you 18 months head sentence and a year minimum sentence.  Was there anything else, Mr Cecil?

42MR CECIL:  No, sir.  No other orders required.

43HIS HONOUR:  I wasn't addressed about disposal or ‑ ‑ ‑ 

44MR CECIL:  No, sir.  We've checked all those, there's none required.

45HIS HONOUR:  It's all done?  Thank you.  Officer, just before you take him away can I just say this.  It's this man's first time in custody, can I ask - there must be some system you have to make sure that that's noted on his file, or whatever, and that he has previously been receiving Diazepam as medication for anxiety.  If you could just note those two things please?  First time in custody and Diazepam for anxiety.

46MR McGANN:  Yes, I did have a prison management issue to raise ‑ ‑ ‑ 

47HIS HONOUR:  Thank you.

48MR McGANN:  ‑ ‑ ‑ but I think Your Honour's covered that perhaps.

49HIS HONOUR:  Right.

50MR McGANN:  And it's just having at least until recently been under a GP and medicated with Diazepam it may be that the services of a doctor at some point soon would be appropriate in custody, and I've received those instructions.

51HIS HONOUR:  Yes, the prison officer knows that and they'll look after that, so thank you very much, you can take the prisoner away.  Thank you.  Good luck, Mr Mifsud.  Mr McGann, thank you very much for your assistance.

52MR McGANN:  Thank you, Your Honour.

53HIS HONOUR:  And I'm sorry to have messed up your afternoon, Mr Cecil.

54MR CECIL:  Not at all, sir.

55HIS HONOUR:  Thank you.

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