Director of Public Prosecutions v Palalagi

[2015] VCC 19

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01863
CR 14-01862
CR 14-01762

DIRECTOR OF PUBLIC PROSECUTIONS

V

CEDERIC PALALAGI
JEAN ALEXANDER ROMANO
ZACHARY TURKAYOGLU

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	19 January 2015
DATE OF SENTENCE:	23 January 2015
CASE MAY BE CITED AS:	DPP v Palalagi & Ors
MEDIUM NEUTRAL CITATION:	[2015] VCC 19

REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Plea of guilty to one charge of aggravated burglary and one charge of intentionally causing injury;  home invasion at night; male victim injured and other occupants traumatised;  two offenders influenced by “ice” at the time, the third by alcohol. Remorse, youth, reasonable prospects for rehabilitation.
Sentence: 3 year CCO for each offender

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	MS L. STEVENSON	Office of Public Prosecutions
For Accused PALALAGI	MS Z. BROUGHTON	VLA
For Accused ROMANO	MR D. CARE	James Dowsley & Associates
For Accused TURKAYOGLU	MS S. HARBAN-BEER	Loco Legal Services

HER HONOUR: 

1Jean Alexander Romano, Zachary Turkayoglu and Cederic Palalagi, you have each pleaded guilty to one charge of aggravated burglary and one charge of intentionally causing injury.  You, Mr Palalagi, have also pleaded guilty to a summary charge of failing to answer bail.  I will set out the circumstances of the offences and then turn to the individual background and circumstances of each of the offenders.

2On 12 July 2014, at about 6.30 am, Romano and Turkayoglu went to a house occupied by people they knew.  These were the victims in the matters, Jaqueline Watson, Matthew Nash, Taryn Watson and Daria Savic.  While Turkayoglu remained in the car, Romano knocked on the front door and windows but no one answered.  He then entered the house through the front door, which was not locked.  Jacqueline Watson and Matthew Nash were asleep on the couch.  Taryn Watson, aged 20, and another young woman, Daria Savic, were asleep in a bedroom.

3Romano was friends with the Watsons and was accustomed to visiting the house.  At the time he was under the influence of the drug known as ice and his judgment was clouded.  He had rung Jacqueline Watson's mobile phone to ask if he could come to visit but she had not answered.  He later told police he had gone there to wash his face after suffering a blood nose.  Jacqueline Watson woke up and saw Romano and asked him to leave, as did Nash, who pushed Romano towards the door, verbally abusing him.  Romano told police in his record of interview that Nash punched him as he was leaving.  The altercation prompted Romano to go back to his car and telephone Palalagi, telling him he had been threatened and needed help.  Romano and Turkayoglu drove to Palalagi's house and collected him and returned to the Watson household, arriving there at about 7 am.  Romano knocked on the door with the other two men standing to the side.  Nash answered and Romano pushed the door and entered the house followed by the other two.  This is the charge of aggravated burglary.

4To return to the house in company with others to seek some sort of redress against Mr Nash who ejected Romano and against Ms Watson who asked him to leave was an ill-conceived, reckless decision betraying very poor judgment, perhaps based upon an immature sense of entitlement influenced by drugs.  Once in the house Romano began pushing Nash, with the other two joining in, punching him to the face and body.  Nash fell to the ground and the three men kicked and hit him about 40 times according to Nash's estimate.  He also had his finger bitten and his eyes gouged.  The three women witnessed the fight and screamed for the men to stop, attempting to remove the two victims from danger.  Palalagi attempted to break it up but hit Nash a number of times in the process.  His role was therefore more limited than that of the other two.  The fight stopped when Nash stood up and said to the men, "Have you had enough?  You happy?"  Ms Savic said she was calling the police and the three men left, but not before they trashed the hallway.

5Nash suffered swelling and bruising and scratches to his face and body.  His finger was lacerated and bleeding from the bite.  He provided a victim impact statement in which he said he continues to suffer from anxiety because of the attack and has needed medication for depression.  It seems he has also had to give up the business he was running.  Taryn Watson said in her statement that she suffered from severe anxiety, preventing her from working for some time.  She said she was scared for her life and that of her mother at the time and thought Mr Nash was dead.  She said she suffered tissue damage to her wrists from trying to pull her mother out from under the males who were on top of her.

6Jacqueline Watson made an extensive statement describing the psychological and physical harm she has suffered from the struggle and from her efforts to protect Mr Nash, as well as damage to some irreplaceable possessions in her house.  She was clearly terrified by what occurred.

7Afterwards the men sent text messages to Taryn Watson and Daria Savic, admitting they hit Nash but justifying why and apologising.  Romano said Nash needed to be warned for his own safety and that he should apologise or it would end badly.  All three were interviewed and gave explanations for their behaviour, but Romano denied that Palalagi was involved at all.  Each pleaded guilty at the earliest possible time and so they are entitled to a discount on their sentences for saving the expense and inconvenience of a trial and for avoiding the need for witnesses to have to give evidence and be cross-examined.  The process of the criminal justice system has been expedited and that deserves recognition in this way.

8I turn now to the offenders individually.  You, Mr Romano, were the instigator in the sense that you felt the need to deal with Nash for his rudeness as you perceived it and his attempts to eject you from the house at 6.30 am when the household was asleep.  You said you punched Nash in self-defence, ignoring the fact that you returned to the house after you were ejected, with the other two men.  You denied to the police that you were affected by any substance other than alcohol at the time, but in fact you were under the influence of ice, which is consistent with your claim that you became very angry with Nash.  You said your temper boiled and you unleashed your fury on him when he hit you as he ejected you from the house.  You told the police you felt terrible about what had happened, but nevertheless you blamed Nash for fighting you given that he was a much bigger and older man than you.  You also expressed concern about the injuries you inflicted and wanted to apologise to the victims.  That is perhaps a qualified expression of remorse suggesting a degree of immaturity and reluctance to accept responsibility for your actions.

9You were aged 19 at the time and you are now aged only 20 and you are therefore classified as a youthful offender.  That means your prospects for rehabilitation are to be given considerable importance even though the crimes you committed are very serious.  You come from a good family but your parents separated when you were small and you grew up without a father figure.  You completed secondary school without excelling and obtained factory work, but you are now about to start an apprenticeship in cabinet making.

10At school you used cannabis and from early 2014 you used the drug known as ice, which you ceased using after your arrest for these matters.  Evidence was given by your family friend, Mr Dominic Vigilante, who is a forensic psychologist.  He said he has known you since you were born and renewed contact with you about ten years ago.  You engaged with him for a number of informal sessions over several months and he has now referred you elsewhere for relapse prevention strategies to be addressed which he feels constrained from offering because of his friendship with your father.  He said he has noticed your physical improvements since you ceased drug use and that the urine screens you organised yourself have all been negative.

11Your mother has provided an insightful letter to the court setting out the background to your descent into substance abuse and undesirable company.  She pointed out that it was not until you committed these serious offences that you were able to address your dependence and change your behaviour.

12Your employer has confirmed that you are a valuable employee and that he is keen to have you as his apprentice.  The support he offers, as well as that of your family, increases your chances of rehabilitation, together with the treatment that you are willing to pursue. 

13The prior conviction for driving without P plates and possessing a prohibited weapon last July relates to an occasion when police found a lunchbox containing steak knives in your car placed there by your friend which you had forgotten to return to him, and I place no weight on those matters.

14Your offending deserves a sentence that reflects firm denunciation by the court and the need for general deterrence so that others will know that this sort of offending will result in a severe sentence, but your youth and the steps you have already taken towards your rehabilitation mean that prison is not necessary.  A community-based disposition is appropriate in order for you to continue with your rehabilitation and to begin your apprenticeship.  Taking up adult responsibilities and being committed to your work and family provide your best chance of gaining insight and maturity and avoiding further offending.  The same disposition was sought on behalf of the co-accused as well and the prosecution did not oppose that course.

15Taking all matters into account, I shall impose a Community Corrections Order for you and you have been assessed as suitable for that.

16I will ask you to stand now please, Mr Romano, while I just explain these details to you.  The order will begin today and it will carry a conviction for the two offences in view of the seriousness of those offences.  It will last for three years.  You will be subject to supervision and you must perform 100 hours of unpaid community work over 12 months.  In determining that condition I have taken into account that you will have no doubt fulltime work commitments and your apprenticeship studies, and I have allowed twice as long as would normally be allowed for you to complete that work.  You must also submit for drug and alcohol assessment and treatment.  I have not made it a condition that you undergo psychological counselling as you have already started on that path voluntarily, and to some extent this will be dealt with also through the treatment for drug offenders.  You must attend the Frankston Community Correctional Services office at 431 Nepean Highway today at 2 pm.  Take a seat now, Mr Romano.  You will be asked to sign that order a little later.

17Mr Turkayoglu, you have also been assessed as suitable for a Community Corrections Order and I will explain those details shortly.  You are 21 years old, aged 20 at the time of the offending, and you completed Year 12 at school and are now a second-year apprentice in cabinet making.  You work six days a week and it is said you are doing well.  You come from a good family who continue to support you.  Their explanation for what you did is that you fell in with the wrong crowd.  You were drug-affected at the time and your involvement was limited to assisting Mr Romano.

18After leaving school having completed Year 12 and started a pre-apprenticeship course, your family noticed your withdrawal from family life and other social interactions.  It became apparent that you had a serious dependence on the drug known as ice and your family went to great lengths to help you deal with it.  Your mother's description of this period indicates the very great support your family gave you and the extent to which it contributed to your recovery.  They arranged for you to have extensive periods away from the pernicious influence of the drug users with whom you had been associating, and this fortunately had the desired effect.

19You were first assessed by a psychologist in 2013, some nine months before the offending, and you attended a number of counselling sessions during that time.  After the offending this continued, addressing your anxiety and dependence on drugs, resulting in achieving total abstinence, although not from alcohol. Relapse prevention then became the goal, with a need for continuing treatment, partly because of your peer group of friends, some of whom use drugs and drink heavily.  Your psychologist considers you also remain at risk because of your immaturity, reflected in poor judgment and a poor sense of self-responsibility.

20Your counsel described the offending as a significant moment of relapse which you say was the worst time of your life.  You have gained insight from it and you are remorseful, particularly after having read the victim impact statements.  Your memory of the event is hazy, but the victims' description left you aghast that you could have been involved in such a thing.

21You have no prior convictions but you have been to court for three further episodes of offending which occurred in October 2013 and May 2014.  These involve burglary of a clinic where nothing was taken, and theft of items from cars.  Last September the magistrate placed you on a deferred sentence order and you are due to return to court  soon.  Those matters occurred while you were still using drugs and you have no memory of them.  Indeed, you have only been completely abstinent from drugs for the past four months.

22Serving time in prison would do nothing to address your problems.  Your commitment to your apprenticeship and the ongoing support of your family are strong factors towards your rehabilitation, and as a young offender that is of great importance both for the future protection of the community and your own progress to a positive life.

23Would you stand please, Mr Turkayoglu, and I will explain the order that I am going to make.  I will place you on a Community Corrections Order that will commence today and it will last for three years.  There will be convictions recorded because of the seriousness of the offending and you will be required to perform 80 hours of unpaid community work over 12 months. As with Mr Romano, because of your apprenticeship commitments you are being allowed twice as long as would normally be the case to complete this work.  You will be under supervision and you must submit for assessment and any necessary treatment for drug and alcohol abuse.  You must attend the Moorabbin Community Correction Services office at 1140 Nepean Highway, Highett, and an appointment has been made for you today at 2 pm.  Thank you, you can sit down now, Mr Turkayoglu.

24Mr Palalagi, you too have been assessed as being suitable for a Community Corrections Order and I will explain those details to you also in due course.  Your involvement in the incident was supportive of Mr Romano, although you also tried to break up the fight.  You had been drinking alcohol and were affected by it.  You were depressed at the time, having lost your job.

25You are aged 24, the same age as you were at the time of the offending.  Your childhood was disrupted by your parents' separation and the division of the family, with you living with your father from the age of ten and your three siblings staying with their mother.  You were estranged from her and did not see her again until you were 20.  You have only sporadic phone contact now.  Your father drank and gambled heavily and was aggressive, and you lived with him in a garage for some time.  He gave you little support throughout your early years but you became a successful sportsman, although unfortunately binge drinking brought to an end your football career by the age of 20.  Several years ago you were the victim of a serious stabbing attack and some time later you were placed on a good behaviour bond for assault, which is your only court appearance. 

26You left school early with only rudimentary literacy, but you have been able to support yourself with various jobs, living independently from the age of 15.  In recent years you worked as an installer and have been living in privately rented accommodation, and by these means you have demonstrated that you are able to make a positive contribution to society.  Unfortunately, you expect to be evicted from your home this week I understand, and at the moment you will have nowhere to go.

27Your counsel submitted on your behalf that the principles in the High Court case of Bugmy v The Queen apply as to the relevance of social disadvantage.  It was said in that case:

"Because the effects of profound childhood deprivation do not diminish with       time and repeated offending, it is right to speak of giving full weight to an      offender's deprived background in every sentencing decision."

28Consistent with that case, I take into account your abandonment as a child by your mother and the serious problems you endured while living with your father as a boy.  Fortunately, despite your psychological fragility, you have been otherwise favoured with some resilience which has enabled you to do well despite your disadvantage, but not to the extent that you could overcome all the obstacles placed in your path. One such obstacle would appear to be a considerably low self-esteem. 

29Dr Cunningham, the forensic psychologist who assessed you recently, diagnosed a major depressive disorder to which you were predisposed by your unstable childhood.  He considers that your offending occurred in the context of alcohol abuse and negative peer associations.

30You pleaded guilty early and have demonstrated both insight and genuine remorse concerning your role in the offending.  Dr Cunningham considers you need ongoing treatment for depression, incorporating both psychological and psychiatric treatment, not all of which would be available in prison.  Incarceration would also aggravate your condition and deprive you of the chance to work and improve your situation, particularly regarding drug and alcohol counselling.

31Another reason is that prison would impose greater hardship upon you than upon others who do not suffer from a depressive disorder.  That is according to the principles in the case of Verdins v The Queen which applies in this case.  That factor serves to reduce the need for general deterrence in your case.

32You are still a young man with no criminal convictions and indications that your chances for rehabilitation are reasonable.  The principle of parity requires the imposition of a sentence that is similar to that imposed upon the other co-accused and for a combination of reasons that I have discussed the community-based disposition is appropriate. 

33Would you stand please, Mr Palalagi, and I will explain to you that I am going to impose a Community Corrections Order in similar terms to the others imposed today.  It will start today and will last for three years and there will be a conviction for all three offences.  You will be required to perform 100 hours of unpaid community work within six months and you must be under supervision and submit for drug and alcohol testing and any necessary treatment.  Your imminent eviction from your unit was noted by the Corrections officer who performed your assessment, and for that reason, although you have been directed to the Corrections office at Moorabbin, that might change according to your new accommodation.  In any event, you must report there by 4 pm next Wednesday 28 January.

34In each of these cases the prosecution seeks an order for forensic samples of saliva to be obtained and you have each consented to that order through your counsel. I must advise you that the police have the power to use reasonable force to obtain the samples, but I trust that will not be necessary. My declaration in relation to s.6AAA of the Sentencing Act  applies to each of you.  If you had pleaded not guilty to the charges I would have sentenced you in each case to three months' imprisonment with a Community Corrections Order for two years.

35The Community Corrections Orders will be ready for signature now.  Thank you.

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