Director of Public Prosecutions v Talley (a pseudonym)

[2023] VCC 1694

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

RUSSEL TALLEY (A PSEUDONYM)

---

JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 July 2023
DATE OF SENTENCE:	18 September 2023
CASE MAY BE CITED AS:	DPP v Talley (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 1694

REASONS FOR SENTENCE

---

Subject:Criminal Law – Sentence – guilty plea

Catchwords:              Sentencing – persistent breach of an intervention order – threat to kill – criminal damage – reckless conduct causing serious injury – being a prohibited person possessing a firearm – reckless conduct endangering persons of serious injury – theft – possess methylamphetamine – breaching an intervention order intending to cause harm or fear – 30 years old at time of offending – repeated over time – high degree of attempts at coercive control – escalating family violence – high moral culpability – significant and relevant criminal history – guarded prospects of rehabilitation – late plea of guilty – reduction of sentence proportionally limited – plea has some utilitarian value

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Sentence:Total effective sentence 7 years imprisonment with a non-parole period of 4 years; 668 days reckoned as already served; 6AAA: 8 years 10 months imprisonment with a non-parole period of 6 years.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Liapis	Office of Public Prosecutions
For Offender	Mr H. Rattray	Balmer & Associates

HIS HONOUR:

1Russel Talley,[1] you have pleaded guilty to 11 charges, namely, persistently breaching an intervention order, making threats to kill (x2), criminal damage (x2), recklessly causing serious injury, being a prohibited person possessing a firearm, reckless conduct endangering persons of serious injury, theft, possessing methylamphetamine and breaching an intervention order intending to cause harm or fear, all relating to your conduct in a relationship between 24 October 2021 and 4 March 2022.

[1] A pseudonym.

Summary of offending

2The agreed basis for your guilty plea is set out in the summary of prosecution opening dated 19 July 2023.

3In summary, you and the complainant in the matter, Barbara Chesser,[2] had been in a relationship of some 11 years, in fact you had married in 2016.  You separated in August 2020, and because of various events, you were served with an intervention order prohibiting you from doing various things with respect to Ms Chesser and your child. It was served on you on 7 October 2021.  It prevented you from approaching or being within five metres of your ex-partner or 200 metres of the home, amongst other things.

[2] A pseudonym.

4Between 24 October 2021 and 18 November that year, you persistently engaged in breaches of those orders and those conditions (Charge 1).

5That persistent breach consisted of a large number of text messages, visits to her workplace and home, saying things to her as she drove in the street as you passed in a car, telling her to pull over, and being abusive and rude on the telephone.

6Charge 2 is a charge of making a threat to kill where you told her in a phone conversation that 'You have 15 minutes to tell me everything, otherwise I'm gonna blow you away.'  That occurred on 1 November 2021.

7On 2 November, the next day, Charge 3, making a threat to kill, you became increasingly erratic on a phone call, screaming at her 'That today is the day' you 'would bury her.'  On that day you drove your utility around the corner and collided with the side of the fence of the house at Mickleham where she lived.

8Your persistent contact of her and belittling and threatening conduct in phone calls and text messages continued.

9On 10 November 2021, you attended at the property having threatened to do something that she would not like, and you reversed your utility into the garage door, causing extensive damage to it (Charge 5).

10You attended her workplace on 16 November 2021 and you threatened that that day you would ram cars in the carpark at that site.

11On 18 November 2021 you were near the Mickleham house and there you saw a Mr Bosio, an acquaintance of your ex-partner's. They were seeing each other.  You were jealous and angry, and you pulled up alongside his vehicle, pulled out a firearm which was described as having two metal cylinders alongside each other, yelled at him, calling him a 'dog', and discharged the firearm from the front driver's seat of your vehicle through your open passenger window, hitting Mr Bosio and his vehicle through the driver's side door below his window (Charge 6, recklessly causing serious injury and Charge 7 being a prohibited person possessing a firearm).  You were a prohibited person because you had been served with an intervention order.  There are, no doubt, other reasons for you being a prohibited person but that is the matter that was alleged.

12Not being satisfied with having shot him and his vehicle, as he attempted to drive away, you drove your vehicle in such a way as to ram his, causing it to roll twice before landing back on its wheels (Charge 8, reckless conduct endangering a person of serious injury).   Having done that, you got out of your vehicle and ran towards his vehicle but thankfully he was able to drive away and you could harm him no further.

13Mr Bosio was hospitalised.  He had two puncture wounds to his right flank. His right arm had two large injuries, including an eight-centimetre wound into his triceps. Metallic bodies were under his skin in the wounds that had to be surgically removed and repaired, including jagged pieces of metal.  There was a substantial injury to his arm, as found by an expert, that will likely result in a permanent scar, as well as permanent psychological scars.

Procedural history

14You were arrested on 19 November 2021, the next day, having avoided numerous police contacts by not telling them where you were, or arranging to attend police to be arrested.  When they arrested you they found you had a small bag of methamphetamine in your wallet (Charge 10).

15When police investigated and looked at the property where your car was sitting, they found that the car you had been driving around was in fact stolen (Charge 9, theft).

16Charge 11 arose on 4 March 2022, while you were on remand at the Melbourne Remand Centre.  You arranged, by subterfuge, to have contact with the victim, Ms Chesser, via a phone call made from somebody else whose number she would not have recognised, or from prison but through somebody else who arranged a conference call including her.  During that call you said, 'Don't worry, I'll see you and your boyfriend when I get out.  I'll see you and your boyfriend when I get out, see ya.'  This was a further breach of the intervention order and a serious breach, attracting a higher maximum penalty because it was with an intent to cause harm or fear for safety, which is apparent from what you said.

17The victim in this matter, your ex-partner Barbara Chesser, in her victim impact statement dated 21 July 2023 (Exhibit A) had the following things to say.

18Since your conduct was brought to a halt by police arresting you, she has constantly lived in fear, worry and doubt.  She has distanced herself from a majority of her family and friends because she is fearful that any information about her will be relayed to you and that someday you will then find her.  She has needed the help of a therapist, she has had to mislead people about what was going on, thinking she could even trick herself and start to believe that she was actually living a normal life while you were doing these things.

19Your daughter has had to engage in counselling because of what happened at five years old.  She is still disturbed whenever she hears a loud car in the street, and she will run to her mother until she can be reassured that it is not you.

20You were arrested on 19 November 2021, and you have remained in custody since that time.  Police interviewed you but you elected not to answer questions, as is your right. 

21On remand waiting for trial in the matter, you served a one-month sentence imposed in the Magistrates Court on 1 February 2022 for breaching a CCO.

22Your trial was due to commence in late July 2023, however, immediately before that you sought a sentence indication which was granted, and you accepted.  So, the stage of the matter at which you accepted your guilt was very late.  The reduction of your sentence on that basis is therefore proportionately limited.

23Covid-related restrictions on day-to-day life in custody had significantly reduced by the time you were remanded; however, I accept that you had a harder time than usual, at least early on.  I also accept that you have lived in custody with the prospect of restrictions since then, even if not imposed.

24For other reasons, I have been told that you have spent your time so far in protection due to threats made against you and prison concerns for your safety.  This was not disputed, and I have taken that into account in that it causes greater hardship for you in custody than for others.

25Your plea indicates, I find, an acceptance of the prosecution case against you and a willingness to facilitate the course of justice.  A guilty plea in a case like yours means that the complainant is not required to give evidence in court or go through a trial, and that is of some value.

26I make no findings about remorse.

Personal circumstances

27As to your personal history, you grew up in a loving and happy home in Broadmeadows.  You were the youngest of seven siblings in a blended family.

28You struggled at school and left during Year 9 to find work, which you did in both retail and then the construction industry.  You met friends in that time who were older than you and introduced you to drugs, particularly methamphetamine.  By your late teens, you were using it regularly.

29You are now 32 and methamphetamine has been a constant problem for you but for a few years of the last five years or so.

30Tragically, in 2014, at only 22 years old, you were sentenced to two years' imprisonment for trafficking a commercial quantity of drugs.  Your partner, the victim Ms Chesser, stood by you and on your release, you returned to the relationship.

31In fact, you married in 2016, and while you were off the drugs it was a happy time and that culminated in the birth of your daughter together in 2018.  But soon after that you relapsed into drug use, and it had a toll both on your life and the lives of those around you.

32In 2019 you were sentenced for 60 days' prison for stalking and family violence involving Ms Chesser.

33In Feb 2021 you were imprisoned for a further 48 days and placed on a CCO for family violence involving her.

34In May 2021, for breaching that CCO, you were placed on another involving targeted programs to deal with the drug and violence problems you had.

35In July 2021 you were remanded for further stalking and family violence against her.  You served 93 days in prison before being sentenced on 1 October 2021 to time-served and a CCO involving yet further treatment conditions.

36Your mother provided a reference dated 19 July 2023 (Exhibit 1).  In it she stated the whole family have felt the impact of your offending, in particular they have suffered with the loss of contact with your ex-wife and daughter.  She affirms, however, your family’s unwavering support of you, while not condoning in any way your serious offending.

Sentencing issues

37The maximum penalties of the charges you face are as follows

Charge 1: Persistent breach of an intervention order	5y
Charge 2: Threats to kill	10y
Charge 3: Threats to kill	10y
Charge 4: Criminal Damage	10y
Charge 5: Criminal Damage	10y
Charge 6: Recklessly causing serious injury	15y
Charge 7: Being a prohibited person in possession of a firearm	10y
Charge 8: Reckless conduct endangering a person of serious injury	5y
Charge 9: Theft	10y
Charge 10: Possess methylamphetamine not for the purposes of trafficking	1y
Charge 11: Breaching an intervention order intending to cause harm or fear	5y

38The seriousness of your offending against your ex-partner is demonstrated by a number of factors.  First, it was repeated over time.  Its continuation, even though it was breaching a court order, it involved a high degree of attempts at coercive control, your violence was escalating as time passed and you had only recently been released from custody for similar conduct against her and you were on a CCO at the time.

39The incident involving your discharge of a firearm at Mr Bosio is extremely serious.  It represents the height to which you allowed your jealousy and violence to extend in pursuit of your partner.  It was appalling behaviour and you should be ashamed.

40Your moral culpability in all the circumstances was high.  It is not reduced due to your drug use, in fact, you had been on notice that your behaviour when using was bad, but you did not do what you needed to do to manage it or change it.

41The only explanation for your offending is that you held terrible attitudes about your own entitlement to control your wife and to justify violence to that end.  Your methamphetamine use offers some explanation of how you came to act out on those attitudes, but it does not excuse it in any way.

42As the courts have said repeatedly, particularly over recent years, a strong message must be sent to the community, that is, to entitled and violent men in particular, that the consequences of family violence will be harsh.  I will impose imprisonment terms to achieve this end and to make clear the community’s denunciation of your conduct and to exact just punishment on you.

43You have a significant and relevant criminal history.  Your sentence is aimed at deterring you specifically from any repeat performance and I find that you are past the point where a community-based sentence is able to provide adequate protection from you.

44Your counsel, Mr Rattray, submitted that I should order a degree of concurrency between individual sentences to make sure that the total sentence you serve remains proportional to what you have actually done, and I have attempted to do so.

45I find that your prospects for rehabilitation are guarded at best.  Your history suggests that you will not easily change your attitudes and habits and it will be for the Parole Board to assess your progress before you can be released.

46There was no dispute between the parties about the type of sentence you should receive for this spree of violence, and I sentence you and order partial cumulation as between sentences as follows.

Sent	Cum
Charge 1: Persistent breach of an intervention order	18m	6m
Charge 2: Threats to kill	10m	1m
Charge 3: Threats to kill	12m	1m
Charge 4: Criminal Damage	8m	2m
Charge 5: Criminal Damage	9m	2m
Charge 6: Recklessly causing serious injury	5y	5y
Charge 7: Being a prohibited person in possession of a firearm	18m	2m
Charge 8: Reckless conduct endangering a person of serious injury	2y	5m
Charge 9: Theft	8m
Charge 10: Possess methylamphetamine not for the purposes of trafficking	1m
Charge 11: Breaching an intervention order intending to cause harm or fear	14m	5m

47The total effective sentence is 7 years.

48I fix a non-parole period of 4 years.  I note, however, that it will be entirely up to the Parole Board to determine if and when you are released after the 4 years have elapsed.

49I declare that you have served 668 days pre-sentence detention and direct that this be reckoned as a period already served under this sentence.

50In accordance with section 6AAA of the Sentencing Act 1991, but for your guilty plea I would have imposed 8 years and 10 months and fixed a non-parole period of 6 years.

Ancillary orders

51I grant the application for forfeiture of two mobile phones, which you do not oppose, and I also grant the application for disposal of various evidentiary items seized, which you did not oppose.

- - -