Director of Public Prosecutions v Talisa
[2016] VCC 1564
•19 October 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00219
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OWEN TALISA |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 October 2016 | |
DATE OF SENTENCE: | 19 October 2016 | |
CASE MAY BE CITED AS: | DPP v Talisa | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1564 | |
REASONS FOR SENTENCE
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Subject: 1 charge of recklessly causing serious injury – defendant and one other viciously attacked a fellow prisoner whilst in custody – history of violent offending – guarded prospects of rehabilitation – relatively youthful offender (24 at time of offence) already serving a term of imprisonment for which non-parole period had already passed – application of s16(3) Sentencing Act necessitating cumulation of sentences – Totality – Total effective sentence 3 years and 8 months with a non-parole period of 22 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Cordy | Solicitor for Office Public Prosecutions |
| For the Accused | Mr J Gullaci | Revill & Papa Lawyers |
HER HONOUR:
1 Owen Talisa, you have pleaded guilty to one charge of recklessly causing serious injury, which carries a maximum penalty of 15 years' imprisonment.
2 The circumstances of your offending are summarised in the Amended Summary of Prosecution Opening read by the prosecutor, Mr Cordy, at the plea hearing on 4 October 2016.
3 On 28 July 2014, you, and your co-accused, Steven Thompson, and your victim, Dan Baron, were all prisoners who had different cells in the Matilda East Unit at Port Phillip Prison. At approximately 4.00pm, Mr Baron returned to his cell and lay down on his bunk, which was the top one, and faced the wall and went to sleep. Some time later, his cell mate stepped out of the cell and you and Thompson entered it. You were on the top bunk and repeatedly struck Mr Baron to the head. In his statement to police, Mr Baron said he believed that you used a weapon and he felt stunned and had blurred vision. However, the prosecution conceded that it was unable to prove beyond reasonable doubt that you used a weapon. As you were striking Mr Baron to the head, he could feel his leg being held down. This was apparently done by your co-accused.
4 As Mr Baron attempted to defend himself, he fell from the top bunk. In his statement to police, Mr Baron said that, as one person punched him to the head, the other assailant jumped on his leg. He felt himself being hit, kicked and stomped on. However, the prosecution conceded that it was unable to prove beyond reasonable doubt that Mr Baron was stomped upon. The prosecution conceded that, on the balance of probabilities, when Mr Baron fell from the top bunk, you and your co-accused landed on top of him and this caused Mr Baron to suffer a comminuted fracture of the left patella. In addition, he suffered a fracture to the right little finger, an open laceration to his left temporal region and a comminuted fracture of the left cheek bone, together with multiple abrasions and swelling and bruising to his chest, back and arms. CCTV footage showed that you and Thompson entered and left Mr Baron’s cell within less than a minute.
5 Medical staff came to Mr Baron’s aid and he was taken to Royal Melbourne Hospital. On 29 July 2016, he underwent surgery for his fractured finger, as well as open reduction and internal fixation surgery for his fractured patella. He remained in the Royal Melbourne Hospital for two days following such surgery. Then, on 1 August 2014, he was transferred to St Augustin’s Unit at St Vincent’s Hospital for ongoing treatment. Whilst there, on 11 August 2014, he underwent further surgery by way of open reduction and internal fixation for the fracture of his left cheekbone. He remained in hospital for approximately three weeks before he returned to Port Phillip Prison on 19 August 2014.
6 It was necessary for Mr Baron to wear a leg splint and not bear weight on his left leg for six weeks following the surgery. Thereafter, he underwent further rehabilitation in relation to his leg injury. As at the time of the plea hearing, which was over two years after the assault, Mr Baron was still requiring the aid of a walking stick in order to mobilise.
7 On 5 August 2014, you participated in a record of interview in which you made admissions relating to the assault, claiming that you had “kicked the fuck through one of the guys in Matilda East” and “gave someone a hiding from Matilda East, yeah, and left him in his blood.” You claimed that you “just aim for heads and heads only” and had seen your victim “pissing out blood” as you walked out of his cell. You further stated “I don’t really give a fuck if I hurt him or anything, you know, like. I admit to me kicking his head in, and we’ll keep it at that, like.”
8 You had initially been charged with intentionally causing serious injury and it was alleged that you had attacked Mr Baron with a metal bracket. A contested committal was held but, ultimately, on the date that this matter was listed for trial, 3 October 2016, the prosecution made the concessions to which I have previously referred in relation to being unable to prove beyond reasonable doubt that you had a used a weapon or that you had stomped on your victim and that, on the balance of probabilities, Mr Baron’s leg injury had occurred when you and your co-accused fell to the floor from the top bunk and landed on top of him. Accordingly, the prosecution accepted a plea of guilty from you to the charge of recklessly causing serious injury. You plea was entered on 4 October 2016, promptly after that agreement had been reached with the prosecution.
9 You are presently aged twenty-six years, having been born on 14 January 1990. You had been remanded in custody only two weeks prior to this offending on one charge of armed robbery, one charge of attempted armed robbery and one charge of attempted robbery. Subsequently, you pleaded guilty to those charges. In the County Court on 20 February 2015, His Honour Judge Tinney sentenced you to a total effective sentence of 4 years and 9 months' imprisonment, with a non-parole period of 2 years and 3 months. His Honour reckoned a period of 231 days pre-sentence detention to be time reckoned as already served under the sentence imposed by him. Had it not been for the offending upon which I must pass sentence, you would have become eligible for parole in accordance with Judge Tinney’s sentence on 30 September this year.
10 For a person of only twenty-six years of age, you have a serious criminal history, particularly for offences of violence. Between 2007 and 2009 you appeared in the Children’s Court on multiple occasions for various assaults. You were given dispositions by way of probation and a Youth Supervision Order, both of which you breached. In 2010 and 2011, you appeared in the Magistrates’ Court on three occasions on various charges. These included robbery and false imprisonment, failing to comply with a Community-Based Order, assault in company, burglary, theft, possessing and using a drug of dependence and failing to answer bail. On each occasion, you were given a Community-based Order.
11 It would appear that you were mistakenly believed to be suffering an intellectual disability. In this regard, a report from Mr Warren Simmons, psychologist, dated 3 September 2014, had been tendered at the plea hearing before his Honour Judge Tinney. Mr Simmons had taken a history of you having suffered a head injury and other serious injuries when you were struck by a car whilst riding your bike in 2009. He administered “the Kaufman Brief Intelligence Test” which indicated that you had an overall IQ of 61, which put you in the disabled range of intellectual functioning. He also noted a history of anger and drug abuse on your part.
12 However, His Honour Judge Tinney ordered that another psychological assessment be conducted by Forensicare. A report from Professor Michael Daffen, psychologist, dated 10 February 2015, concluded that, although results of intellectual assessments suggested that your overall intellectual ability is in the low-average range, you do not suffer an intellectual disability. He noted that you tend to cease tasks once you encounter difficulty and suggested that this may explain why the results of the Wechsler Adult Intelligence Scale tests are a slight under-estimation of your actual intellectual functioning, particularly in relation to your verbal abilities. He noted that your verbal comprehension is in the extremely low range, and working memory in the borderline range, but perceptual reasoning and processing speed are within the average range. Professor Daffen found no evidence that you suffer any mental illness.
13 According to the history recorded in Mr Simmons’ report, you were the oldest of nine siblings and your parents are of Tongan birth, although your father is also part Samoan. Your childhood was good, but because your parents’ relationship was on-and-off over a number of years, this led to you changing schools and residences on a number of occasions. You described anger being part of your life from an early age, using cannabis from your teen years, struggling at school academically, being regularly in trouble for your bad behaviour, which included both verbal and physical aggression, and finally leaving school as a result of your substance use. By your mid to late teens you were smoking cannabis daily and, also, using up to a gram of methylamphetamine daily.
14 The content of the report of Professor Daffen is deeply concerning. Once you left school, you became involved with street gangs in which physical aggression was highly regarded. You came to be regarded as a fighter or enforcer, who was lauded for perpetrating acts of significant violence against other people. Often you committed acts of violence to recoup money from drug users but, sometimes, it was simply to get money for material gain or enjoyment. You enjoyed your reputation for ruthlessness and your fighting ability and admitted to feeling excitement when fighting, which included, at times, choosing a random individual to rob.
15 As I have already stated, it was only two weeks after being remanded in custody for the matters upon which Judge Tinney ultimately sentenced you, that you participated in the unprovoked and vicious attack upon Mr Baron. In your record of interview, you claimed that it was pay-back relating to something to do with drugs which had happened outside the prison. You seem to have an entrenched propensity for acts of random cruelty and little empathy for those upon whom you inflict it. Mr Baron was forty-seven years old and sleeping in his darkened cell with his back to the cell door when he was set upon by you, then aged twenty-five, and your co-offender, then aged twenty-seven. It was most cowardly behaviour, with you two, young and fit, attacking a man two decades older and taking him by surprise as he lay sleeping and defenceless in his cell, where he should have been entitled to feel safe. It appears to have been a vicious, frenzied attack by you and your co‑accused, judging by the photographs of the injuries inflicted upon your victim (Exhibit “B”) and the CCTV evidence that you were only in your victim’s cell for less than one minute.
16 The Victim Impact Statement from Mr Baron, tendered as Exhibit “C”, leaves no doubt about the devastating impact that your senseless violence has had upon his life, both physically and emotionally. He suffers fear, anxiety and frustration and is unemployable as he feels overwhelmed, is unable to sleep properly and suffers exhaustion. He requires ongoing counselling, as well as having to rely upon a walking stick to get about. These are understandable and foreseeable consequences of your brutal cowardly attack.
17 In sentencing you, there is no issue of parity to be considered in relation to your co-offender, as he was transferred from Port Phillip Prison to serve a sentence in Western Australia and then deported to New Zealand. The Court was told that a request for him to be extradited in order to be charged for the offending which he perpetrated in your company has been refused.
18 Mr Talisa, you must be in no doubt as to the seriousness of your situation. A person like your victim should be able to serve his sentence of imprisonment without fear of a vicious attack like that which you have perpetrated. Our legislature has made it plain that the seriousness of offences committed whilst in prison should be reflected by sentences having to be served cumulatively upon the sentence which a perpetrator is already serving, unless there are exceptional circumstances. Mr Gullaci conceded that in your case, there were not any exceptional circumstances. Courts must make it plain that someone who attacks a fellow prisoner will not be dealt with more leniently than if the attack had happened outside a prison and any culture of gang thuggery must be strongly discouraged. For this reason, there must be denunciation of your conduct and emphasis upon general deterrence, so that anyone else who is minded to participate in senseless violence in prison by way of some claimed pay-back will know that they will be appropriately punished. Also, in sentencing you there needs to be emphasis upon specific deterrence because of your history of repeated violent offending, albeit that I make it plain that it is no part of my role to punish you again for any offending in the past.
19 You were convicted of the offending for which Judge Tinney sentenced you subsequent to the offending for which I must sentence you. As I have already stated, it is deeply troubling that only two weeks after being remanded in custody for offences of violence, you committed this offence. It is also an aggravating factor that your offending was clearly premeditated. This is indicated by you and your co-offender entering your victim’s cell together within a very short time of his cellmate leaving the cell, and co-ordinating your nasty surprise attack, which you began by stunning your victim as you repeatedly struck him to the head, while your co-accused grabbed his legs. The consequences of your deplorable behaviour are that your victim has suffered debilitating physical and psychological injuries, which are enduring. Your counsel has acknowledged that the only appropriate sentence is a term of imprisonment.
20 In sentencing you, I take into account the following factors:
(1)You have pleaded guilty to the offence. On its face, your plea of guilty is a late one in that it was only entered on the day after your matter had been listed for trial. However, I take into account that you had been presented for trial on the more serious charge of intentionally causing serious injury. Apparently, there had been very little attempt by your former legal representatives to resolve the matter and, after Mr Gullaci was retained as your counsel, the prosecution made the concessions to which I have previously referred and agreed to accept a plea to the lesser, albeit it still serious, charge of recklessly causing serious injury. You pleaded guilty promptly after the prosecution indicated that it was prepared to accept such a plea. I also note that when interviewed, you had made admissions to your offending consistent with the charge to which you pleaded guilty. In the circumstances, Mr Cordy, for the prosecution, submitted that your plea of guilty carried a high utilitarian value as the State had been spared the cost of a trial of some seven days. In addition, your victim had apparently expressed relief at not having to relive this terrifying event, so you have spared him further trauma. Thus, you are entitled to a significant, tangible discount for your plea of guilty. It was not submitted by your counsel that your plea of guilty is a remorseful one and, indeed, your record of interview is a chillingly callous account of what you did and how little you cared about it.
(2)There has been delay in this matter in that almost one year elapsed from the date of offending until you were charged on 18 July 2015. Your counsel stated that, at committal, the informant had indicated that this delay was simply attributable to his workload. In the meantime, you were in custody with this matter hanging over your head and, indeed, serving the sentence imposed by His Honour Judge Tinney beyond the non-parole period set by him. Thus, you are in ineligible for the imposition of a single non-parole period in relation to the sentence imposed by Judge Tinney and the sentence to be imposed by myself. Indeed, as previously mentioned, the sentence which I impose must be cumulative upon your current sentence. In the circumstances, I consider that some allowance should be made for delay. Further, I am mindful of the principle of totality, bearing in mind that you are still only twenty-six years old and, already, you have been in custody since 12 July 2014. You still have 2 years and 9 months of the sentence imposed by Judge Tinney left to serve, albeit that pursuant to s16(3) Sentencing Act, after the non-parole period set by Judge Tinney, you will next serve the non-parole period set by me.
(3)I also take into account that, following this offending, you were transferred to the Charlotte Management Unit, where you remained serving your sentence in isolation until you were ultimately transferred back into the mainstream prison population on 4 August 2016. In passing sentence on 20 February 2015, His Honour Judge Tinney did take into account the onerous conditions in such management unit, namely long hours of lockdown with only a couple of hours each day away from your single cell, only one contact visit per month and one box visit per week. His Honour found that those conditions of incarceration were likely to endure for, at least, “quite some time”.[1] However, His Honour would not necessarily have anticipated another 18 months of such conditions after he passed sentence on 20 February 2015. Thus, I find that it is fair to make some further allowance for such onerous conditions endured prior to you being transferred into the mainstream prison population in August 2016.
(4)I have already referred to your lack of remorse, your concerning callousness demonstrated in your record of interview and the deeply worrying factors in Professor Daffen’s report, particularly your enjoyment of your status as a violent gang member and enforcer. These reasons do not inspire optimism for your prospects of rehabilitation. However, it may be that the lengthy period that you have spent in isolation in the management unit has had some positive effect. Professor Daffen noted that you appeared “to be enjoying enforced segregation” because you were incapable of being drawn into gang-related activities in which you feel compelled to act violently because of peer affiliation, particularly with other incarcerated Islanders.
Further, at the plea hearing you told me that, during your time in the management unit, you have realised how much trouble you get into. You stated that you could have made a better decision, not just for yourself, but for Dan, your victim, who has suffered as well. You stated, further, that you had been a violent offender for a long time and it is hard to break that chain. You have made inquiries and been told that, now that you are in mainstream prison, you can access a course to address your anger once you have been sentenced. Thus, although the material put before the Court causes me to be very cautious, indeed, about your prospects of rehabilitation, it may be that the time you have had for reflection on your misspent youth is resulting in you slowly maturing. Certainly, you have expressed the wish to be a father to your two children, who are aged only three and four years old respectively. They have been abandoned by their mother and are currently being cared for by your parents. It seems that your parents now have a more stable relationship than when you were growing up as a teenager and they are prepared to support you and, indeed, have been visiting you in custody and taking your two children to see you. This ongoing support and family bond is a positive factor when considering rehabilitation.
I also take into account that, whilst in the management unit, you undertook three courses, namely, a substance use program, a relapse prevention program and a “Talking Change” program. Since being transferred from the management unit to mainstream prison, you have also enrolled in a course at Kangan Institute, namely, Certificate II in Construction Pathways. Your counsel stated that, in the past, you had done some work driving forklifts and you hope to build on that to obtain some skills for when you are released into the community. I also note that you had taken up the opportunity to work as a billet doing cleaning work whilst you were housed in the management unit. Given these factors, and your relatively young age, it would be wrong of this Court to simply write you off as having no prospects of rehabilitation.
(5)Although you have an appalling history of violent offending, I do take into account that you have had a disadvantaged background in that your parents’ unstable relationship resulted in frequent changes of residence and schools. According to Professor Daffen, this compromised your psychosocial development. You found it difficult to make friends at schools and were bullied and became angry and resentful and violent. Ultimately, you turned towards anti-social street gangs, seeking the intimacy and support that was absent from your family home. Although you were treated very leniently in the past by the Magistrates’ Court, perhaps because of the misapprehension that you were suffering an intellectual disability, you are still a young person and have two young children, who have no contact with their mother. These factors, together with the application of the principal of totality, have been acknowledged by Mr Cordy, for the prosecution, as warranting some mercy with respect to the head sentence and perhaps a shorter than usual non-parole period. Indeed, it is my concern that, if some mercy is not extended, you may become so hardened by years and years of imprisonment, that there may be no prospect of you ever being reclaimed to live a useful life in the community. Ultimately, you are the only person who can decide what you will make of your life, Mr Talisa. If you go on behaving like a violent thug, you will continue to be a menace to society, your life will be a miserable and wasted one and your two children will grow up without properly knowing their father.
[1]Paragraph 23 of Judge Tinney’s sentencing remarks dated 20 February 2015
21 Would you stand up, please. On one charge of recklessly causing serious injury, you are convicted and sentenced to be imprisoned for a period of 3 years and 8 months. I declare that you serve a period of 22 months before becoming eligible for parole.
22 Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your plea of guilty, the total effective sentence imposed would have been 6 years with a non-parole period of 4 years.
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