Director of Public Prosecutions v Talaumi

[2016] VCC 1307

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00849

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANZAC TALAUMI

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JUDGE:	HIS HONOUR JUDGE RYAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	2 September 2016
CASE MAY BE CITED AS:	DPP v Talaumi
MEDIUM NEUTRAL CITATION:	[2016] VCC 1307

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Henderson	Solicitor for Office of Public Prosecutions
For the Accused	Ms Z. Broughton	Victoria Legal Aid

HIS HONOUR:

1Anzac Talaumi, on 22 July 2016 you pleaded guilty to indictment G10066230, containing two charges of robbery (Charges 1 and 2), a charge of causing serious injury intentionally (Charge 3), and a charge of causing serious injury recklessly, (Charge 4).

2In addition, you pleaded guilty to a related summary offence of commit and indictable offence while on bail.

3The maximum penalty for each of these offences is:  robbery, 15 years' imprisonment; causing serious injury intentionally, 20 years' imprisonment; causing serious injury recklessly, 15 years' imprisonment; commit indictable offence while on bail, 30 penalty units or three months' imprisonment.

4You have no prior convictions, however at the time of the instant offending, you had been charged with a number of offences.  You had pleaded guilty to some of those, and were on bail pending sentence in respect of them, and you were on bail in respect of other charges.

5I was informed by Ms Broughton, public defender, who represented you, that the information set out in a report from Youth Junction Inc dated
11 December 2015 in respect to your history of offending was accurate (see Exhibit 1). 

6As at the time of the instant offending, you had been charged with offences arising out of your conduct on 12 September 2015, where you had seriously assaulted a stranger at St Albans railway station who had refused to give you a cigarette.  It is not plain to me whether you were charged on summons or proceeded against by way of arrest and bail in respect of this matter.

7As at the time of your plea, the charges arising out of the incident at the railway station had not been resolved, but were likely to resolve as a plea when they were to come before the Magistrates' Court on 26 August.  However, owing to intervening events, those matters have been adjourned.

8On 17 November 2015, you pleaded guilty in the Magistrates' Court to robbery, attempted robbery, recklessly cause injury, three charges of theft, and a charge of handling stolen goods, and were admitted to bail.  These offences arose in part out of your conduct after alighting from a bus at the Watergardens Railway Station on 11 October 2015, and were also to be finalised in the Magistrates' Court on 26 August, although they too have been adjourned.

9Finally, on 12 September 2015 you were granted bail at the Sunshine police station on charges of possess cannabis, deal in property suspected of being the proceeds of crime, resist protective service officers, theft from a shop, make a threat to kill, assault police, and resist police.  Accordingly, you were on two sets of bail at the time of committing the instant offences, and had pleaded guilty before the Magistrates' Court to like offences.

10The fact that you were on bail at the time of committing the instant offences is an aggravating circumstances of your offending.  It is to be noted for the offences that occurred on 11 October 2015 that you were remanded in custody from 11 October 2015 to 17 November 2015, a period of 38 days, before you were granted bail upon you entering a plea of guilty to the charges that I have referred to above.  I must take these 38 days of presentence detention into account when sentencing you.

11It is apparent that the period of approximately five weeks that you spent on remand in adult custody had no deterrent effect on you, and despite being on two sets of bail, each relating to offences involving violence, that within weeks of entering those undertakings you committed further acts of violence.

12Tendered as Exhibit A on the plea was the summary of prosecution opening.  In summary, on 6 January 2016 at about 11 pm, you approached the victim of Charge 1, a 15 year old adolescent, who was standing outside a fast food store in Swanston Street waiting for friends.  You stood beside him and said "Give me your phone or I'll knock you out".  Your victim replied "What?", and you repeated your threat.  Your victim locked his smartphone and handed it to you.  He told police that he was pretty scared, and that he was in shock as a result of your conduct because he did not expect it to happen.

13He told police that the only reason he handed over his phone was because he did not want himself or his mates to get hurt, as you were pretty intimidating (Charge 1).

14Shortly after the robbery (the subject of Charge 1), you committed a second robbery.  The victim of Charge 2 was with friends seated at a table on the footpath outside a restaurant in Swanston Street.  Your victim was using his mobile phone and you approached him from behind and hip and shouldered him, and slapped his phone out of his hands.  The phone fell to the ground and you picked it up and put it in your pocket, and as you walked away laughing, you said to your confederate "He wasn't ready".

15Shortly after the second robbery, the victim of Charge 3 was viciously assaulted by you.  The victim of Charge 3, a chef by occupation, had finished his shift at a restaurant on Swanston Street.  As was his usual practice, he gathered the leftover food from the restaurant to distribute it to homeless people on his way home.  He left the restaurant and walked along Bourke Street with a work colleague who was carrying a skateboard.

16During the course of the plea, a portion of closed circuit television (Exhibit E), was played, which showed you walking along Swanston Street and Bourke Street in company with other youths.  As the victim of Charge 3 walked along Bourke Street, he saw you and two or three of your confederates harassing homeless people on Swanston Street.  He approached you.

17A short Asian male told him "Do you know who the fuck we are?  We are the Sunshine Crew".  The Crown concedes that the altercation between the victim of Charge 3 and you commenced with the victim throwing the first punch.  However, thereafter your victim was surrounded by you and your co-offenders.  One of your co-offenders pulled the victim's backpack and the victim felt a hard object strike the back of his head.  You punched the victim to the chin, causing him to fall to the ground.  You continued to assault your victim by standing over him and punching him to the head with such force that it caused your victim's head to bounce on the pavement.  One of your co-offenders also assaulted the victim by kicking him and punching him. 

18Whilst this was happening, the victim of Charge 4 was walking along Swanston Street by himself, and he saw the assault taking place and decided to assist your victim.  The victim of Charge 4 pushed you away from the victim of Charge 3 and said "Enough, enough, stop it".  You did not desist from your attack on your victim, so the victim of Charge 4 pushed you away again.  You then directed your attention towards him, and you punched him to the face.  He fell to the ground and attempted to cover the victim of Charge 3's head and body.  While doing so, you assaulted him further, and the victim of Charge 4 was kicked in the face and kicked in the body. 

19During the course of these assaults you picked up the skateboard that had been carried by the victim of Charge 3's friend, and struck the victim of Charge 3 to the head on two occasions with that object.  As a result of the assault the victim of Charge 3 suffered the following injuries:  a laceration extending from the top of the nose and over the left eye; a bilateral zygomatic complex fracture; bilateral maxillia oblique pterygoid plate fractures; nasal bone fractures, bilateral orbital floor fractures.

20On 14 January 2016 the victim of Charge 3 underwent open reduction and internal fixation in theatre, wherein all fractures were plated except for the orbital floor fractures.  Tendered as Exhibit C was the victim impact statement of the victim of Charge 3.  It reads in part:

"The events that took place on 6 January 2016 ruined my culinary career forever.  I have permanently lost my sense of smell and taste.  As a career-based professional, qualified chef, pastry chef, baker and qualified butcher, I can no longer work in the industry as my smell and taste are my main tool.  I have been qualified for over 15 years.  Now all this has been taken away, and it is impacting my life financially as I can't work, emotionally as I cannot smell or taste, and mentally as I have worked my whole life to be something I now can't".

21He complains of double vision that now causes him to wear glasses, and when last seen as an outpatient, he was experiencing facial numbness, albeit it was improving.  He suffers flashbacks and fears that the assault will happen all over again, and he fears public places and groups of people.  His partner is expecting their first child, and during the course of the pregnancy, he felt that he was unable to support his partner because of his own injuries and rehabilitation.  Further, his inability to work has placed financial pressure upon him and his partner.  His victim impact statement concludes in the following terms:

"It deeply saddens me that I'll not be able to smell my new baby daughter, or use my senses of my first call of safety mechanism in the instance of a fire."

22As a result of the assault, the victim of Charge 4 suffered the following injuries:  a displaced left zygomaticomaxillary complex fracture; paraesthesia in the distribution of the left intra-orbital nerve with altered sensation of his left cheek and lip; facial pain; diplopia, or double vision; subconjunctival haemorrhage; peri-orbital bruising; severe cuts to the pads of his thumbs. 

23On 12 January, the victim of Charge 4 underwent open reduction and internal fixation of his fractures in theatre.  On 3 February 2016 when seen as an outpatient, the victim of Charge 4 was suffering from persistent paraesthesia across his left cheek. 

24In his statement dated 17 February 2016 the victim of Charge 4 wrote that the "pain is constant".  He describes it as "more of a constant throbbing discomfort" in his face.  He said his injuries prevent him from doing many things.  Things as simple as sleeping on his left side, which he used to do.  He complained that his sleep cycle had been severely affected.  He cannot do any form of sport, and had gained weight.  He suffered from lack of confidence.  He complained that the numbness caused by the nerve damage might be permanent, and that it makes eating hard, as food either falls out of his mouth or gets stuck in the numb area. 

25Tendered as Exhibit B was the victim impact statement of the victim of Charge 4.  He says, under the heading of "Emotional trauma suffered as a result of the crime" the following:

To be honest, the fact that the police in this country actually seem like they care completely negated any emotional trauma I might feel.  The facial injuries have made my life a lot less enjoyable, and I cannot engage in any sporting activity, and have missed a huge chunk of the summer."

26Under the heading "Other relevant information", the victim of Charge 4 said:

"The unreserved brutality that the assailants displayed, they were not attempting to chastise the initial victim, but to snuff him out.  It has made me very wary of going out too late anymore."

27Some 40 minutes or so after committing the offence the subject of Charge 1, you were arrested in Federation Square.  The following morning, you were interviewed under caution, and in summary you said:  "All I know is - like I got into a fight".  That the victim of Charge 3 offered you a jug of beer and ask you where you were from, that when you replied you were from Sunshine the victim of Charge 3 said "Fuck Sunshine", and punched you in the face, causing you to fall to the ground, that you retaliated and punched your victim in the head.  "I just kept on going because I was angry".  That you "Just kept punching him", and "smashed his head in", with a skateboard.  That whilst your victim was on the ground you punched him and hit him in the head with a skateboard.  That you hit your victim as much as you wanted to because you were drunk, and that you did not rob anyone, and that the stolen smartphones belong to you.

28You were remanded in custody, and as at the date of your plea, you had spent 202 days by way of presentence detention.  At the time of the instant offending, you were 18 years of age, and are currently 19 years of age, having been born on Anzac Day, 1997.  You were born in Samoa.  Your father deserted your mother before you were born.  When aged seven years, you were culturally adopted by your maternal aunt, and she has been your mother since that time. 

29In 2006, you moved to New Zealand with your adoptive mother and her husband.  While in New Zealand, you were left in the care of other members of your extended family.  The adult male of that family, being described only as "Uncle Taylor", it was put on your behalf that you were subject to violence at the hands of Uncle Taylor, and hospitalised on one occasion as a result of his violence towards you.

30Your adoptive mother, Selayla Talaumi, gave evidence on your behalf.  She and her husband took you to New Zealand, and you resided with them at various locations in New Zealand, except for the time that you spent with
Uncle Taylor and his family.  You lived with your adoptive mother when you came to live in Australia in September 2013. 

31When asked about domestic violence and discipline in the home, your aunt and adoptive mother described the process that existed when you were in her custody as being that you would be spoken to, and if you did not respond, you would get "a smack on the bum".  Whilst I accept that there was a period of time when you lived in New Zealand that you were subject to domestic violence, on the evidence before me it was of limited duration. 

32Between 2010 and 2013, you returned to live in Samoa.  While there, you attended school, and on return to Christchurch, New Zealand, you attained Year 8 level education.  In September 2013, you travelled to Australia and once again resided with your adoptive mother and her husband.  Your adoptive mother swore that when you attained the age of 14 years you changed.  Effectively, you became a discipline problem within the home.  This problem developed to the extent that your adoptive mother put an ultimatum to you.  That you were to obey her, or to leave her home.  You chose to leave and lived on the streets, but returned after a period of three or four months.  However, upon your return, you would not listen to your adoptive mother when she attempted to talk sense to you. 

33For a period of approximately three months or so when you were aged 16 years, your adoptive father found work for you at the recycling centre where he worked.  Your adoptive father got you up each morning and ensured that you attended work.  Your adoptive mother swore that receiving a pay packet changed you, and you once again became a problem in the home. 

34In June or July 2015, your natural mother came to live in Australia and lived with your adoptive mother for a period of time until she could find alternate accommodation for herself and her three children.  Tendered as part of Exhibit 1 was a client enrolment report from Vostro Institute in Sunshine, where you obtained a Certificate II in Warehousing between March 2015 and
October 2015.  As part of Exhibit 1, a letter from the Department of Immigration and Border Protection dated 18 February 2016 was tendered.  By this document, you were notified that your visa had been cancelled because of criminal charges against your name in Australia.  Whilst I was not told on the plea that you had made an application for a merits review, it was implicit in the plea that such was the case, and that any time that you spent in custody would be more burdensome for you, because you would be subject to the pressure of the prospect of deportation.  I take this matter into account in coming to an appropriate sentence in your case.  See Schneider v The Queen [2016] VSCA 76.

35I further note the contents of Exhibit 2 being references from your natural mother, and one of your siblings.

36Ms Brougton, on your behalf, properly placed great emphasis on your youth and relied upon the three statements of principle contained within the judgment of Batt JA in The Queen v Mills (1998) 4 VR 235 at p.241 as they were reviewed and explained in Azzopardi & Ors v The Queen (2011) 35 VR 43 in support of the submission that the appropriate sentencing disposition in your case was a term of detention in a Youth Justice centre. 

37In my view, the seriousness of your offending means that the sentencing considerations of youth and rehabilitation do not dominate all other sentencing considerations in your case.  You had spent 38 days on remand in an adult custodial setting prior to your release on 17 November 2015.  You were on bail for two sets of offences involving violence, and had entered pleas of guilty to those acts of dishonesty and violence that you committed on 11 October 2015.  You robbed two young men of their mobile phones when they were simply enjoying a night out in the central business district.  It is plain from your comments made immediately after the second robbery that you were enjoying yourself. 

38Accepting, as I must, that the victim of Charge 3 punched you first, your unbridled violent punishment of him while in company and with a weapon is a serious example of causing serious injury intentionally.  The consequences to your victim have been devastating to him.  When a good Samaritan intruded to stop the assault, you turned on him and brutally assaulted him, causing him serious injury. 

39While I must be cognisant of the principles set out in Mills case, the sentencing principles of general and specific deterrence, just punishment and protection of the community must be reflected in any sentence that I impose on you.

40It was submitted on your behalf that you have demonstrated an ability to comply with rehabilitative programs within the community.  At one level this is so, however it was while you were receiving support provided by Youth Junction Inc that you committed the instant offences.  Against a history of substance and alcohol abuse, it appeared to the author of the report from Youth Junction Inc that you had reduced your abuse of drugs, and particularly, alcohol.  However, on the occasion of the instant offending, you were adversely affected by alcohol and you demonstrated a capacity for extreme violence. 

41In your record of interview, you appeared to justify, and to be satisfied in your own mind, that you were justified in your assault on the victim of Charge 3 because he had punched you first.  To my mind, you learnt little from the period that you spent on remand prior to November 2015, and from your involvement with Youth Junction Inc.

42You have pleaded guilty at the earliest opportunity, and are therefore entitled to the benefits that flow from such a plea, and that it represents evidence of your remorse, and it has utilitarian benefits.  As at the date of your plea, you had spent 202 days by way of presentence detention on adult remand.  While you have been in custody, your mothers, both adoptive and natural, have visited you.  You have a home to return to at the completion of your sentence should you abide by your adoptive mother's rules.

43As a matter of principle, a youthful offender is not to be sent to an adult prison if such a disposition can be avoided (see Mills).  In part, this principle is recognition of the fact that young persons are likely to be vulnerable in an adult custodial setting, and that a sentence of imprisonment may adversely affect a young offender's ability to understand and to come to grips with the effects of his past criminality.

44I cannot discern that you have any appreciation, even of an embryonic kind, of the effects of your conduct.  You were due to be sentenced on 5 August, but on the previous day you were involved in an assault, during which you were stabbed a number of times to the abdomen, as well as being stabbed to the eyebrow and the area below your left ear, as well as having a portion of your left ear bitten off.  You were initially treated at Port Phillip Prison, and then casualty evacuated to the Royal Melbourne Hospital, where your stab wounds were treated, and the injuries to your eyebrow and ear were treated under general anaesthetic.  Thereafter you were treated with antibiotics and transferred to St Augustine's ward at St Vincent's Hospital on 6 August, where you remained under 8 August, when you were sent to the Charlotte Management Unit at Port Phillip Prison.

45On 29 August, you came before me for further plea and sentence.  Your medical records were present at court, pursuant to subpoena.  Acting on instructions, Ms Broughton gave a version of the assault that was at odds with the investigations made by the informant in the matters before me. 

46Ms Broughton informed me that you had been held as a mainstream prisoner in the Gorgon section of Port Phillip Prison, and that you had intervened in an assault on an elderly prisoner to protect him.  It was asserted by those who assaulted the elderly prisoner that he was suspected of being an informant. 

47The next day you were lured into a cell where you were set upon by a number of prisoners, who stabbed you.  The melee moved out of the cell into the communal area of where you were held, and there you were stabbed again and a portion of your left ear was bitten off.

48Detective Senior Constable Minney was called to give evidence about her enquiries in respect to the incident.  She was informed by Detectives from the Wyndham CIU, who had the charge of the matter, that there was no CCTV footage of the incident, nor were there any witnesses, either prisoners or prison officers.  The assault was believed to be between you and another prisoner, and that you were alleged to be the aggressor, and neither you nor the other prisoner were prepared to make statements about the incident.  Indeed, you and the other prisoner signed statements of no complaint.

49Ms Broughton informed me that since your return to Port Phillip Prison, you have endured 23-hour-a-day lockdown.  You are permitted one hour out of your cell by yourself.  Additionally, very occasionally, if the other prisoners in the Charlotte area do not wish to come out of their cells, then you are allowed more time out of your cell, but always by yourself.  Ms Broughton was unable to say how long this regime would apply to you, and your plea was further adjourned to 2 September so enquiries with the prison authorities could be made.

50On the return date, Detective Senior Constable Minney was cross-examined.  She had made further enquiries of the prison intelligence section at Port Phillip Prison and was able to inform me that insofar as the incident of 4 August 2016 was observed, it was observed by prison officers, and said to have taken place in the kitchen area.  And contrary to earlier intelligence provided to her, there appeared to be three prisoners involved in the melee.  I note at this stage that your instructions to Ms Broughton were not supported by evidence. 

51Tendered as Exhibit 3 was a letter dated 1 September 2016 from Brendan Money, Assistant Commissioner, Sentencing Management Division.  The letter sets out your history within the prison system, and in particular, incidents that, according to the prison authorities, that you have been involved in.  Until 4 August 2016, you enjoyed normal mainstream prisoner conditions, with the standard 11 and a half hours of time out of your cell. 

52All this changed after 4 August.  It is unclear to me what role you played in the events of 4 August, however since that time you have been classified as a maximum security prisoner.  You were initially housed at Charlotte unit, but are presently held at Grevillia unit on a 23-hour lockdown regime.

53In Exhibit 3, Mr Money writes:

On 30 August 2016, Mr Talaumi was transferred to Grevillia unit, Barwon Prison.  Until his associates and risks are assessed, he is on a single time out of cell of one hour per day.  If he is assessed as being able to mix with other prisoners, he will then be increased to two hours out of cell per day.  When Mr Talaumi is sentenced, he will be assessed again, but he will continue to be regularly reviewed by sentence management panels until he is released from the intermediate regime."

54Your position in prison is not a static one.  You will be regularly reviewed, and there is every chance that the conditions in which you will be held will improve over time.  Owing to the conditions under which you are presently held, the sentence that I otherwise would have imposed upon you needs to be tempered.

55Would you please stand?

56Taking into account the circumstances of your offending, with the effects of your offences, with your personal circumstances and antecedence, and endeavouring to produce a sentence that reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:

57On Charge 1, one months' imprisonment;

58On Charge 2, one months' imprisonment;

59On Charge 3, three years' imprisonment;

60On Charge 4, two years' imprisonment;

61On the related summary offence, one months' imprisonment.

62I order that one year of the sentence imposed on Charge 4 be served cumulatively upon the sentence imposed on Charge 3.  This results in a total effective sentence of four years' imprisonment, and I fix a period of two years' imprisonment as being the period of imprisonment that you must serve before you will become eligible for parole.

63I declare that you have spent 237 days, not including today, by way of presentence detention.  I note in passing, that during discussion with
Ms Broughton, that she submitted that the time that you had spent in custody by way of presentence detention would operate to reduce any term of youth detention that I should order if that disposition was in my view, appropriate. Section 35 of the Sentencing Act 1991 treats presentence detention for the purposes of a Youth Justice Centre order in the same way as s.18 of the Act does in respect to sentences of imprisonment.

64Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to six years' imprisonment with a non-parole period of four years' imprisonment.

65MS BROUGHTON:  As Your Honour pleases.

66HIS HONOUR:  Now, I understand there are some ancillary orders?

67MR HENDERSON:  Did Your Honour say 239 days of PSD?  I thought it would be 237.

68HIS HONOUR:  Well if I said 239, I was in error, 237 is the figure.

69MR HENDERSON:  239.

70HIS HONOUR:  239?

71MR HENDERSON:  Yes, thank you Your Honour.

72HIS HONOUR:  Well, I cannot read my own writing.  Now there is ‑ ‑ ‑

73MS BROUGHTON:  I may have missed this, did the one month orders in respect of Counts 1 and 2, I was wondering whether they were concurrent or cumulative?

74HIS HONOUR:  Per force of ‑ ‑ ‑

75MS BROUGHTON:  Of course - I sit down, I sit down.  Yes, thank you Your Honour.

76HIS HONOUR:  There is an application for a forensic sample, what is your attitude in respect to that?

77MS BROUGHTON:  If I could very briefly obtain instructions, Your Honour?

78HIS HONOUR:  Yes.

79MS BROUGHTON:  That is not opposed, Your Honour.

80HIS HONOUR:  Thank you very much.  I have signed the disposal orders.  
Mr Talaumi, would you please stand?  The Crown have made application for a forensic procedure order.  That is a scraping of your mouth, a buccal swab.  I have made the order because of the seriousness of the circumstances of your offending warrant the order.  The order was not opposed, and the granting of the order is in the public interest.  I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample, and police may use reasonable force to enable that forensic procedure to be conducted.  Please be seated.  I hand down those orders.  Are there any other matters?

81COUNSEL:  No, Your Honour.

82HIS HONOUR:  Remove the prisoner, please.  Sine die.

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