R v Ali
[2003] VSC 182
•4 June 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1411 of 2003
| THE QUEEN |
| v |
| ALI ALI |
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JUDGE: | TEAGUE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5-19 May & 2-3 June 2003 | |
DATE OF SENTENCE: | 4 June 2003 | |
CASE MAY BE CITED AS: | R v Ali Ali | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 182 | |
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Criminal Law - Sentencing – Intentionally causing serious injury – Vicious stomping on head of vulnerable victim - Victim occasioned brain damage – Victim left without purposeful activity or communication – Few mitigating factors – sixteen years prison – non-parole period of thirteen years
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G Horgan SC and Mr W Morgan-Payler QC | Office of Public Prosecutions |
| For the Accused | Mr C Lovitt QC with Mr D Hannan | Balot Reilly & Associates |
HIS HONOUR:
Ali Ali. You have been found guilty by a jury of intentionally causing serious injury to Michael Tully on 29 April 1999 at the Melbourne Custody Centre.
On that day, you were required to be in the Melbourne Magistrates Court. You were placed in cell 28 in the Custody Centre, which is in the basement of the Court building. The cell is 3.4 metres long and 3.1 metres wide. There is a hard bench on each of the north and south sides of the cell. A surveillance camera is housed in the ceiling. One reason for the camera being there was to have available a record by film frames of events in the cell. Due to a technical problem, the camera system was not operating as it should have been on the critical day. No record of what took place was made.
Shortly after 1 p.m., lunch was due to be brought in. There were then twelve occupants in cell 28. You were one of the 12. Michael Tully was also in cell 28. He was a man who suffered mental and intellectual handicaps. Another cell occupant engaged Michael Tully in conversation. He was asked how he came to be in custody. You picked up on part of that conversation, when he spoke of a teenage girl. You erroneously jumped to the conclusion that Michael Tully was some kind of sex offender. You abused him. You spat on him. You kicked him. A custody officer saw part of the kick. He asked you why you had done that. You pointed to Michael Tully. You claimed that Michael Tully had spat on you. You were then taken out of the cell. You promised that there would be no more trouble. You were persuasive. You were allowed to return to the cell.
Back in the cell, you called for a sticker from a lunchbox to be placed over the camera. Your direction was obeyed. When that was done, you punched Michael Tully. Michael Tully dropped so that his head was on the hard surfaced bench. There, you stomped on Michael Tully’s head, some 5 times. You said that you would do the same to your father if he chose to tamper with young girls.
You realised that some blood from your stomping on Michael Tully’s head had got onto your runners. You acted to get rid of the blood. You washed your runners with water and coffee. You wiped them with paper. You said to the other prisoners to tell the staff that Tully had had an epileptic fit. Some time later, the staff came in. You pointedly and repeatedly asked the shift manager: “What’s happened to him, boss? Has he had an epileptic fit?” In short, reframing Shakespeare, you were heard to protest too much.
Your stomping on Michael Tully’s head resulted in his suffering a fractured skull and a very severe brain injury. Until he died some 3 years later, he suffered a life part in hospitals and part in nursing homes. The injuries that you inflicted meant that Michael Tully was incapable of purposeful activity or communication. Sentencing must take account of the seriousness of the consequences. You inflicted injuries of the most serious kind, short of death.
I have read carefully and thoroughly the victim impact statements prepared by Rodney Tully and Glenda Patton. Rodney is the brother of Michael Tully. Glenda Patton is Rodney Tully’s partner. Over the three years before he died, they did all that relatives could reasonably do for Michael Tully. He suffered so much pain and so many indignities, and they suffered with him. Michael Tully’s last years were miserable to an extreme. Those years were tempered only by the presence, and love and care of Rodney and Glenda. They suffered as only similar carers can come near to understanding.
Your background has been summarised in the sentencing remarks of Judge Anderson and the report of Simon Kennedy. In short, you are 29 years of age. You were educated in Sydney. You moved to Melbourne with your family. It is a loving and supportive family. Both parents are still alive, although your mother is quite seriously ill. You have four sisters. You suffered serious injuries in a motor car accident. You have worked at times. You have a significant number of appearances before the courts, with resulting convictions. You have developed an addiction to cannabis.
In your attack on Michael Tully, you used no weapon, and you were wearing soft soled shoes. Your violence directed at Michael Tully was only for a short period of time. But, it was in two stages. There was, in between the two stages, actions of calculated manipulation. And it was an unprovoked attack. It was a sustained vicious attack. It was a cowardly attack on a defenceless vulnerable man.
I take account of the circumstance that the authorities created the situation of risk. Their choices are deserving of criticism. But you chose to take advantage of the situation. Your experience with life in custody has meant that you are familiar with the enhanced propensity of some people in custody to manipulate others. Indeed, your prior convictions point to your being a person more disposed to manipulate others than to violence. Your actions in cell 28 smack of being a demonstration of your capacity to manipulate men. You chose to manipulate the other cell occupants by terrorising them. You intimidated your fellow prisoners with the ferocity of your attack on Michael Tully. They could do little more than make mumbling individual protests. One of them obeyed your command to cover the camera with a sticky label. Another obeyed your command to take the label off. Others complied with your direction to suggest that Michael Tully had had a seizure. You also sought to manipulate the custody officers.
The evidence of the six cell occupants who gave evidence at the trial had certain intriguing aspects. Such undistinguished men were so apparently convincing. What was it about how you acted that seemed to inspire them to be so? Was it the blatant injustice of your attacking such a vulnerable, pitiable man as Michael Tully? Was it the sustained viciousness of the attack? Was it the knowledge of the inevitable disastrous consequences? Was it the overt manipulation of them by the use by you of terror? Was it a combination of those factors? Given the horror of what they witnessed, it is no wonder to me that the six men seem intent now on keeping out of custody.
As noted earlier, I have read the report of Dr Kennedy. The report is relatively unremarkable. I looked unrewardingly in it for any convincing signs of rehabilitation or remorse. Generally, as to rehabilitation, the signs are not good. Your convictions suggest that the prospects are poor. I have no evidence of programs undertaken or other prison conduct demonstrating positive rehabilitative moves by you. As to a related matter, absent satisfying evidence of reasons for past and prospective treatment in custody that is different from usual, I make no adjustment accordingly.
I have read the sentencing remarks of Judge Anderson in December 2000. I have noted the comments made by the Chief Justice in December 2002. I have read other comparable cases, including those of Mallinder and Lepoidevin, cited by Mr Lovitt. I have sufficiently noted before this, the character of some of the features which considerably distance your circumstances from theirs. Further, some matters could be advanced on their behalf, that could not be put on your behalf. I am mindful of the added ordeal, not of your making, associated with an appeal and retrial. It might have made a difference if I had thought that the sentence imposed by Judge Anderson was at the lower end of the appropriate range. In all the circumstances, I am well satisfied that I should fix the same periods of imprisonment and of non-parole, as were imposed by Judge Anderson.
You have served to today, 1359 days in pre-sentence detention. I direct that that be noted in the court records. I have signed the S.464ZF order as to the retention of a body fluid sample. I sentence you to sixteen years in prison. I fix a non-parole period of thirteen years.
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