Director of Public Prosecutions v Taulapapatalosaga

[2019] VCC 1160

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00225

DIRECTOR OF PUBLIC PROSECUTIONS

v

LANCE TAULAPAPATALOSAGA

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	6 June (Plea) and 17 July 2019 (Further Plea)
DATE OF SENTENCE:	29 July 2019
CASE MAY BE CITED AS:	DPP v Taulapapatalosaga
MEDIUM NEUTRAL CITATION:	[2019] VCC 1160

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Plea of guilty – Cause injury intentionally – Summary offences – Commit indictable offence whilst on bail – Contravene condition of bail – Factual dispute on plea – Provocation an issue in mitigation – No Victim Impact Statement -  Relevant criminal history – Youthful offender - Alcohol abuse history – Depression with mild paranoid trend

Sentence:Convicted and sentenced to Community Corrections Order of 2 years’ duration – Conditions include supervision, unpaid community work, alcohol assessment and treatment, mental health assessment and treatment, programs to address re-offending and judicial monitoring – s.6AAA Sentencing Act 1991

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr p. Raimondo (Plea/Further Plea) Ms A. Aplin (Sentence)	Solicitor for Public Prosecutions
For the Accused	Mr B. Newton	Chris McLennan & Co

HER HONOUR: 

1Lance TAULAPAPATALOSAGA, you have pleaded guilty to one charge of Causing Injury Intentionally, which has a maximum penalty of 10 years' imprisonment.  You have also pleaded guilty to the summary charges of committing an indictable offence whilst on bail and contravening a condition of bail. Each of these offences have a maximum penalty of 3 months' imprisonment or 30 penalty units.

2You were 20 years old at the time of the offending and you are now 21.

CIRCUMSTANCES OF THE OFFENDING

3Your plea hearing involved a factual dispute in some respects, which went to the issue raised by you that you were provoked, prior to the assault that you perpetrated against the victim in this matter, Mr Zaw.

4I sentence you on the following factual basis:

5At about 1.45am on 30 June 2018, the victim Pih Sung Zaw, also known as ‘Chin Lee’ left the Werribee Hotel at Watton Street Werribee and walked towards the Werribee Railway Station. He saw an associate, Shane Coyle and a couple of other people who were with him. Coyle was with Chris Barrie, Ali Yasiri and Ethan Somerville.  Zaw joined them and they all walked together down towards the bottom concourse of Werribee Railway Station.

6Paragraphs 4 and 5 of the Crown opening were the subject of dispute, and most of the matters alleged against you came from the police statement of the victim, who, despite attempts to have him attend Court to give evidence, declined to do so. You were prepared to give evidence but, ultimately, there was no need to. Therefore, the matter proceeded on the basis of the filed materials and evidence from CCTV footage at the railway station, as well as evidence given by the police informant in respect of this matter.

7The Crown asserted that as Zaw got to the concourse, he observed you walking towards him from the other direction. Coyle recognised ‘the Kiwi guy’, which was apparently a reference to you. The prosecution alleged that you were yelling at Zaw asking him if he was ‘BH’, that is, a member of a gang known as the Brother Hood. According to the opening, Zaw was yelling back at you, saying that he was not BH, and that you then started yelling at Zaw saying things like 'Fuck you Asians, you're always jumping people".

8Having viewed the CCTV footage carefully, and having considered the evidence in the materials, I do not accept that you were the original aggressor at all. It is apparent from the CCTV footage that you were on your own and minding your own business when the victim and his associates approached you.

9I was told that thereafter there was arguing and a bit of pushing and shoving. The footage revealed that you were effectively surrounded by Zaw and his group and that Zaw then swung a bottle in your direction. Having viewed some photographs which were taken shortly after the incident, I am satisfied that the bottle hit you on the face, above one of your eyes, causing a laceration.

10Therefore, I accept that shortly before you assaulted Zaw, he assaulted you with a bottle.

11Zaw stated to police that he swung the bottle in your direction as you made racist remarks and he was angry - I take it that this was a reference to what he alleged you had said at an earlier stage, but I do not accept that you said these things. Rather, it would appear that Zaw, who was affected by alcohol, was trying to justify his action in swinging a bottle at you.

12According to the Crown opening, Zaw didn't think that the bottle hit you, that he then walked away for a little bit before returning and apologising to you because he wasn't sure if the bottle had hit you or not. He said that you were saying, things like "I'll remember your face, I'll remember your face". It is unclear as to whether you said this or not, but in circumstances where you were outnumbered at this stage, I consider it to be unlikely.

13It is accepted that Zaw did apologise to you, but it was asserted by your Counsel that you were dazed at this time.

14The remainder of the Crown opening was not disputed.

15While Zaw was apologising, Coyle noticed approximately 5 Islander males come down the ramp from the platforms. He noticed that in this group was a male he knew as Kenny Liu, your co-accused. Liu came up to Coyle and his friends and was being aggressive.

16You then punched Zaw in the face and he dropped to the ground. Zaw has no memory of this.

17He lay unconscious on the ground. Liu stomped on Zaw’s face once. Coyle then chased Liu to get him away from Zaw. Coyle then observed you go up to Zaw and stomp on his head twice. You then hit Zaw to the face with a glass bottle. After this happened Coyle ran over to Zaw and lay over him to protect him from getting further assaulted.

18A number of Protective Service Officers attended at the bottom of the concourse. They observed a number of males of Maori and Asian descent fighting and smashing glass bottles. There was an injured Asian male on the ground.

19Coyle was over Zaw trying to revive him. One of the Protective Service Officers told him to get off the victim but he refused. The Protective Service Officer then used OC spray towards Coyle and other males standing nearby.

20The Police and ambulance were requested. Subsequently, both police and an ambulance arrived. Paramedics assessed Zaw and wanted to transport him to Hospital. Zaw had a lot of blood on his face. He was bleeding from the eyes, nose and mouth and could not open his eyes. His face was really swollen. Zaw declined any medical treatment and said he didn't want to go in the ambulance.

21Zaw was assisted away from the Railway Station towards the bus bay area. He called his mother and got her to pick him up from a side street close to the station. She picked him up shortly after and drove him home. When he got home his sister cleaned his face up which was bleeding from a cut above his right eye. He passed out shortly afterwards and slept through the night.

22The following day Zaw’s mother took him to the Werribee Hospital. He was examined and as a result of the assault he sustained a fractured eye socket, displaced fracture fragment impinging on and displacing the right lacrimal gland and right lateral rectus, a deep cut around his eye requiring stitches, swelling and bruising around his eye.

23The CCTV footage clearly depicts you and the co-accused, Liu, hitting and stomping on the victim. Specifically, you punched the victim to the head, knocking him unconscious. You then stomped on his face twice, and hit the victim in the face with a glass bottle.

24Police were able to identify you from the CCTV footage. By this time, you were in detention, undergoing a sentence imposed by me on 12 July 2018.

25On 23 August 2018 the police attended Malmsbury Youth Justice Centre to interview you. You declined to be interviewed which is your right. On 3 September 2018 you were charged on summons.

26At the time of the offending on 30 June 2018, you were on bail in relation to other assault matters. You were also in breach of your curfew condition of that bail. These aspects give rise to the summary offences.

27Liu was sentenced at the Melbourne Children’s Court on 18^th March 2019 to a 12 month supervision order. He was sentenced on the basis that he was not complicit in the first punch which was dealt by you but he was sentenced in respect of the conduct after that. He was 16 years old at the time of the offending. I do not regard his sentence as being one which is overly relevant to your situation as he was dealt with in the Children’s Court which has a different approach to sentencing; also, he was a good deal younger than you, and it was you who punched the victim to the ground.

28Mr Taulapapatalosaga, your offending is serious and deserving of a punishment which is just in all of the circumstances and your conduct must be appropriately denounced.

29While I accept that Mr Zaw initiated the aggression on the day in question, and that your offending occurred as a result of this provocation, you had the chance to accept his apology and to walk away. However, rather than do this, you engaged in retaliation - no doubt, confident that you now had the numbers on your side to do so. Your initial punch was so strong that it knocked Mr Zaw out, but this was not enough for you. I regard your subsequent attack upon him as he lay unconscious as particularly cowardly and sick making. Indeed, your behaviour on this occasion in some respects is similar to the conduct in which you engaged on the previous occasion that I sentenced you, although on that occasion your attack was entirely unprovoked.

30The incident for which I now sentence you would not have happened at all if you had done what you were supposed to do and observed your curfew. I was told that you had fallen asleep at a friend’s place after a drinking session and you were on your way home when Mr Zaw confronted you. However, as the prosecutor pointed out, you were also required to abstain from drinking alcohol under your bail conditions, so on any view of it, you were not where you ought to have been for all of the wrong reasons, having been released on bail for other thuggish behaviour.

31Provocation is a matter in mitigation and is relevant to my assessment of your moral culpability, but it does not excuse what you did. However, your moral culpability would have been a good deal higher if your attack upon Mr Zaw had been unprovoked.

32There was no victim impact statement but the injuries suffered by Mr Zaw were of a most concerning nature. He and you are both fortunate that he didn’t end up either dead or in a vegetative state or dead.

33You have a criminal history as follows:

34In June 2016, you were dealt with in the Magistrates' Court for contravening a condition of bail and the matter was adjourned for 6 months without conviction.

35On 13^th July 2017, you were dealt with in the Magistrates' Court for unlawful assault, affray, two charges of recklessly causing injury and handling/ receiving stolen goods, and you were granted a 9 month Community Corrections Order, with unpaid community work and alcohol and drug treatment conditions. On my reckoning, that order would have expired in April 2018, so about two months before the offending for which I now sentence you.

36You have subsequent matters, although you committed these offences in September 2016. These offences, namely one charge of affray and three charges of common law assault,  were dealt with by me on 12^th July last year, so only 12 days after you committed the offences for which I now sentence you, and there were hearings before me in respect of the subsequent matters in late May and early June 2018. I sentenced you to 14 months in a youth justice centre and you have nearly served the entirety of that term.

37Your past offending is relevant to my assessment of your prospects of rehabilitation and the weight that is needed to be given to specific deterrence and protection of the community.

38To your credit, you entered pleas of guilty to the matters now before me at an early stage, and this means that you are entitled to a significant discount in the sentence that you would otherwise receive. This is because you have saved the witnesses, especially the victim the time and trouble of giving evidence and you have saved the community and time and expense of contested proceedings.

39While I accept that you were prepared to take responsibility for your actions at an early stage, I am not convinced that you are too remorseful for what you did, insofar as it impacted on Mr Zaw is concerned. I accept that you are sorry that your actions have landed you in trouble and have impacted on your loved ones, but you have a way to go in being sorry for what you did to Mr Zaw.

40However, your time in youth justice centre has been most productive and the material placed before me in this regard paints you in a very positive light. You have done very well there, and I understand that you have developed leadership qualities. Also, you are doing VCAL, and are determined to finish this, even if you are to be released into the community.

41You were 20 years old when you committed the offences for which I now sentence you and you are now 21. Therefore, you are still a young man with a long way to go, and I must do what I can to maximise your rehabilitation. Although your offending is serious, you have not reached a stage where this consideration is not a primary one - but, I put you on notice that if you continue to commit criminal offences, you may well not be in the same favourable position, as time goes on.

42There is no impairment of mental function which was operating at the time or now which is relevant to the weight that I must attribute to any sentencing considerations, but I take into account in a general way that according to
Mr Healy’s report in May 2018; at that time, you were suffering from depression with a mild paranoid trend and social introversion. I also factor in previous findings of Mr Healy and Mr Bilyk in respect of your IQ, which was found to be very low, but have taken into account that this might well have improved since you have been studying VCAL.

43You have a strong work history which will stand you in good stead for the future. You have a very fine family, and  girlfriend, who have supported you through thick and thin. It’s now time to give back to them by staying out of trouble.  Do you understand me? 

OFFENDER:  Yes, Your Honour.

HER HONOUR:  You have work to return to should you wish, as well as pursuing your VCAL studies. Certainly, your teachers at Parkville College speak very highly of you, and are keen to continue working with you. I really hope that you do complete your VCAL, and stay away from any situations that could land you in more trouble.

44In sentencing you, I have taken into account your background which is set out in Mr Newton’s submissions and to which I referred in my previous sentencing remarks. You are one of 7 children, and the second oldest. Your family comes from Samoa originally, but you and your family migrated to New Zealand when you were in secondary school. You left school when you were in year 10 and immediately obtained work. You have been engaged in various areas of employment ever since this time. Your most recent employment was as a landscape labourer and your employer is happy to have you return to his employ. I understand that your income is used to help support your family, in addition to the income that your father earns as a bus driver, when he is well enough to work.

45Your relationship with Brooklyn has endured for three years now and she is still studying to be a nurse.

46You have had ongoing problems with alcohol abuse, and are prone to binge drinking when in the community. I understand that you have been alcohol free during the time you have been at Youth Justice Centre. If you are to lead a law abiding life in the community, you must stop abusing alcohol - if you don’t you face the very real risk of spending a good deal of your life in gaol.

47Your Counsel submitted that I ought factor in that you have now been an inmate at the Youth Justice Centre for a period well beyond your eligibility to apply for parole, and that, as you had done so well there you were almost assured of being released on parole at the 7 month mark of your sentence, if not for the matters now before me. I cannot speculate on whether you would have been granted parole or not at an earlier stage, but in sentencing you, I have taken into account that you have been in detention at a youth justice centre for a significant period of time now.

48In view of your offending on the occasion before me, your criminal history and subsequent matters, your history of alcohol abuse, and your limited intelligence, but also factoring in your progress at Youth Justice Centre, your studies and improved intelligence as well as the strong work ethic, and the support that you have from your family and others, I assess your prospects of rehabilitation as being reasonable. I place moderate weight on specific deterrence and protection of the community

49The prosecution submitted that I ought sentence you to an immediate prison term, although Mr Raimondo submitted that a combination of a Community Corrections Order and gaol would be open to me if I decided the provocation issue in your favour.

50Mr Newton submitted that a community corrections order was appropriate in your case. I had you assessed for such an order and you have been deemed suitable for this.

51In all of the relevant circumstances of your case, and bearing in mind the need to maximise your chances of rehabilitation, I have decided to place you on a community corrections order, but if you fail to take advantage of this opportunity, in all likelihood, I will have no option but to send you to gaol.

PLEASE STAND UP

52You are convicted of the offence on the indictment and of the summary offences.

Firstly, I make an order for a forensic sample to be taken from you by way of a scraping from the mouth. I make the order because it is not opposed by you, because of the seriousness of the offences, because it is in the public interest to make the order and also because of your prior convictions. Notwithstanding your present lack of opposition to the order I warn you that if you do not co-operate with the officer who is authorised to take the sample, reasonable force may be used to ensure your compliance.

53In relation to each of the offences, I propose to place you on a community corrections order but I can only do so with your consent so you must listen carefully to the order that I propose:

54The community corrections order would run for a period of 2 years.

55The conditions of the CCO would be as follows:

56Firstly, the mandatory terms that apply to all Community Correction Orders which are:

57You must not commit another offence for which you could be imprisoned during the time that the order is in force;

58You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011;

59You must report to, and receive visits from, the Secretary to the Department of Justice (or his or her delegate);

60You must report to the Werribee Community Corrections Centre before 4 pm within two clear working days of your release from custody.

61You must let a community corrections officer know within two clear working days of you changing your address or job;

62You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice (or his/her delegate);

63You must obey all lawful instructions from and directions of the Secretary to the Department of Justice (or his/her delegate).

64The conditions that apply in addition to the mandatory terms listed are:-

Community Work

65You must undergo 100 hours of unpaid community work within the 2 year period of the order.

66Up to 50 hours of this requirement may be fulfilled by the successful completion of up to 50 hours of any of the treatment and rehabilitations conditions of this order.

Supervision

67Further, you must be under the supervision of a Community Corrections Officer for a period of  2 years.

Treatment and Rehabilitation

68You must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the Regional Manager.

You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility, as directed by the Regional Manager.

You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager.

69Further, you are to attend this Court from time to time in order to be monitored by me in relation to your progress on the community correction order. I will receive a report from community corrections ahead of each of our meetings and we will discuss your progress. Your first appointment will be arranged once you have been released from Youth Justice Centre, so I require community corrections to liaise with my associate in this regard and to notify you of your first appointment.

70Do you consent to the terms and conditions of the order?

OFFENDER:  Yes, Your Honour.

71HER HONOUR:  I should tell you that if you do not obey with all of the requirements of the order then you will face breach proceedings before me. You will be then be sentenced in relation to the breach and you will be re-sentenced in relation to the charges - in which case you may well be sentenced to a period of imprisonment. I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.

72Do you understand this?

OFFENDER:  Yes, Your Honour.

HER HONOUR:  Do you still consent to the order?

OFFENDER:  Yes, Your Honour.

73HER HONOUR:  Therefore in relation to the charges, you are convicted and sentenced to a community corrections order in the terms and conditions that I have just set explained.

74I will ask Mr Newton to help you with the signing of the order.

75If not for your pleas of guilty I would have sentenced you to a total effective sentence of 2 years 8 months' imprisonment with a non-parole period of 14 months.  Take a seat please.

76Just while that is being prepared, Mr Newton, I understand that your client has a parole hearing next Monday?

77MR NEWTON:  Yes.

78HER HONOUR:  I can't speculate what will happen but that's in the offing at least.

79MR NEWTON:  Yes, Your Honour.  With your leave, may I now approach the dock?

80HER HONOUR:  Yes, my associate has the order now;

81MR NEWTON:  Your Honour, just one point in clarification, hours done in the VCAL contribute to the 50 hour - - -

82HER HONOUR:  I've no difficulty with that happening if that's deemed appropriate by community corrections, I've got no difficulty with that being included.

83MR NEWTON:  Yes, very well, thank you. 

84HER HONOUR:  Thank you, I've signed those orders.  Mr Newton, can you just - I'm sure you will do this or you've done this - can you just make clear to your client though that if and when he's released which may well be next Monday or soon thereafter, he's not to go and have a big celebration with his makes and get hopelessly drunk because he's going to be at risk of betting back in trouble and he'll be facing gaol next time he comes before me in all likelihood if he does the wrong thing again.  So he just needs to understand he's got to really behave himself once he's released.

85MR NEWTON:  Your Honour, might I just approach my client one more - we have had that discussion but I'll just indicate that - - -

86HER HONOUR:  He's heard what I've said so you don't need to - he understands what I mean, all right?  Just celebrate with lemonade and with your family.  Stay home.  Thank you.  Anything further?

87MR NEWTON:  No, Your Honour I acknowledge that Your Honour has sat late and your staff have sat late in order to accommodate the sentence so I'm grateful and I'm sorry, Your Honour, that our trial matter was finishing a couple of minutes
after - - -

88HER HONOUR:  No that's all right, thank you.  So Mr Taulapapatalosaga is still serving a sentence at Youth Justice Centre so he needs to be returned to Malmsbury Youth Justice Centre.

89OFFENDER:  Thank you, Your Honour.

90HER HONOUR:  Thank you.

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