R v Cossu
[2008] VSC 458
•6 November 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1630 of 2007
| THE QUEEN |
| V |
| DAMIEN COSSU |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 October, 3 November 2008 | |
DATE OF SENTENCE: | 6 November 2008 | |
CASE MAY BE CITED AS: | R v Cossu | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 458 | |
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CRIMINAL LAW – Sentence – Intentionally causing serious injury – Premeditated stabbing or prisoner in gaol – effect of time spent in custody on other offences.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G Horgan QC and Mr P Stefanovic | Stuart Ward, Acting Solicitor for Public Prosecutions |
| For the Accused | Mr W Stuart | Victoria Legal Aid |
HIS HONOUR:
Damien Cossu. You have been found guilty by the jury empanelled on your trial of one count of intentionally causing serious injury to Robert Musso on 24 March 2007. At your trial, you were also acquitted of a count of attempting to murder Robert Musso, and the jury was unable to reach a verdict in relation to a third count, namely, that you fought and made an affray.
It is necessary for me to sentence you in accordance with the verdict of the jury, consistent with the way in which the Crown put its case against you to the jury.
At the time of the offence, you and Musso were each prisoners in the Attwood Unit of the Metropolitan Remand Centre in Truganina. Your cell was on the A side of that Unit, while Musso occupied cell 29 on the B side. The Crown case at your trial was that the stabbing occurred in Musso’s cell, or in the adjoining cell 28, at about 10.30 am on 24 March. Shortly before the incident, you entered Musso’s cell with a knife, intending to stab him and cause him serious injury. In answer to a question by the jury during their deliberations, I instructed the jury that in order that they convict you on the charge of intentionally causing serious injury, they must be satisfied beyond reasonable doubt that you had an intention to cause serious injury to Musso, before any altercation took place between you and Musso in cells 28 and 29. It is therefore clear, by its verdict, that the jury was satisfied beyond reasonable doubt that at the time at which you entered Musso’s cell, you then intended to cause him serious injury by stabbing him. In my view, the jury was justified in reaching that conclusion, based on the evidence adduced at your trial.
Musso declined to give evidence at your trial, and there were no direct witnesses as to the events which occurred in cells 28 and 29. However, the closed circuit television footage of the common area, which was tendered in evidence, displayed your movements before you went into Musso’s cell, and after you left it, having stabbed him. Based on that footage, on the evidence given at your trial, and consistently with the jury’s verdict, it is possible to identify the relevant findings, which I must make in relation to the events which were the basis for the guilty verdict against you.
Some time before 24 March 2007, you had taken possession of a prison cutlery knife, which you secreted in or near your cell. You also had some sandpaper, which you hid in your cell, and which you used to sharpen the blade and point of the knife. Shortly before 10.30 am, on 24 March, having visited some acquaintances in the upstairs section of the B side of Attwood Unit, you made your way down the stairs to the ground floor, and walked past cell 29 to the western end of B side of the Unit, to speak to some other prisoners in cell 27. You then made your way back along the common area of the B side in company with another prisoner. The role of that prisoner was to remain outside cell 28, but in the vicinity of it, in order to keep watch, while you committed your crime. You entered cell 28, which abutted cell 29, and then made your way into cell 29. As I stated, I accept, in accordance with the jury’s verdict, that at that time you had the specific intention of causing serious injury to Musso by stabbing him with the knife. When you entered Musso’s cell, he was in the shower. There you stabbed him a number of times to the upper body and shoulder.
After you stabbed Musso, a struggle of some sort ensued between you and Musso. In the course of that struggle, Musso was able to make his way along the passageway from cell 29 to cell 28, where he sustained further injury inflicted by you. He then managed to escape outside the cell door, which he attempted to hold closed in order to keep you at bay. Musso then made haste to cell 27. In the meantime, you decamped in the opposite direction, towards your own cell on the A side. There you disposed of the knife, by hiding it in the rear section of a refrigerator, which was in the common area near your cell.
It is the events, which I have just recited, which form the basis of the charge on which you were convicted by the jury. For the purposes of completeness, when Musso made his way to cell 27, he became embroiled in a fight with occupants of that cell. The prosecution alleged that you, a short time later, also became involved in that fight. It was that alleged involvement which constituted the basis of the charge of affray, on which the jury failed to reach a verdict. The events which occurred in or about cell 27 are not relevant to your sentence, save that they may account for some of the injuries sustained by Musso, and for which he was later treated.
Evidence was led from Dr Helen Parker, a forensic physician, as to the nature and extent of Musso’s injuries. It is clear that after, and as a result of, the stabbing inflicted by you, and subsequent to the fight in which he was involved in cell 27, Musso was in a serious medical condition. He was taken by ambulance to the Alfred Hospital. There he was diagnosed with having sustained some seven stab wounds. There was some debate on your plea as to whether the evidence justifies a finding that you inflicted all those stab wounds on Musso, or whether some of them may have been caused to Musso in the fight in which he became involved in cell 27. It is sufficient for me to indicate that, on the evidence, I am satisfied beyond reasonable doubt, as, I consider, was the jury, that you did stab Musso on a number of times in cells 28 and 29. One of those stab wounds consisted of a deep penetrating wound over the back of Musso’s left shoulder, and another stab wound constituted a penetrating wound over the top of his shoulder. As a consequence of one of those stab wounds, Musso suffered a collapsed left lung, for which he required urgent treatment. In addition, he sustained two fractures to his left shoulder. He also sustained a stab wound to the inner aspect of his left eye, which was associated with a fracture of the bone structure surrounding that eye. It is extremely fortunate that that wound did not result in the loss by Musso of the sight in his left eye.
The foregoing description of the wounds inflicted by you on Musso makes it clear that your attack on him with a knife was vicious, violent and sadistic. It was also cowardly. At the time at which you attacked Musso, he was naked under the shower, unarmed, and defenceless. You clearly had the advantage of him at the outset, and he had no hope of resisting or preventing your brutal assault on him. As I have stated, your attack on Musso was premeditated and planned. Further, there was no suggestion that there could be any lawful justification or excuse for you attacking Musso, let alone intentionally causing him serious injury as you did.
No evidence was called at your trial as to any possible motive for you to deliberately inflict serious injury on Musso. Although in your evidence you stated that, on the previous day, you had barred Musso from your cell, because you believed he had stolen items from it, you did not suggest that, as a result, you bore him any ill will or animosity. It would be idle, and wrong, for me to speculate on the reason why you stabbed Musso. However, and consistent with the evidence given at your trial, it is clear on any view that there was no cause or justification for you to do what you did to Musso.
I turn then to matters relating to your background and present circumstances, in order to identify any relevant mitigating circumstances.
You are 32 years of age. You were raised and educated in Sydney. After you left school at Year 10 level, you served two years of an apprenticeship as a fitter and turner, and then worked as a bricklayer’s labourer with your father for another two years. In the next five or so years you carried out some casual work with your father from time to time. However, during that period, you became addicted to heroin. You left Sydney, and came to Melbourne to break your habit. It appears that your endeavours to do so were not successful. Over the last six years you have served a number of terms of imprisonment, which I shall detail shortly. Upon your release from prison in 2004, your parents sent you overseas to Italy, in order to assist you to break free from drugs. The testimonial from your parents indicates that you did well overseas, and that on your return to Australia in 2006, you appeared to be endeavouring to stay free of your former lifestyle. However, in circumstances I shall relate shortly, you were arrested in Sydney in July 2006, extradited to Melbourne, and placed on remand in the high security unit of Barwon Prison. Your parents considered that it was there you renewed your acquaintanceship with a number of persons, whom they considered to be quite undesirable. In their testimonial your parents state:
“His incarceration unfortunately reintroduced him to acquaintances and a life he had left behind for a number of years. This in turn has led to the circumstances Damien finds himself in now.”
Pausing there, the short summary I have so far related of your history shows that you can work if you desire, and that you do have the capacity to avoid the lifestyle which has led you into so much trouble over the years. You come from a good family, who has endeavoured to give you as much support as they are able. Regrettably, however, your past history has shown that you have a proclivity to end up in trouble, particularly when you associate with undesirable company.
You have a large number of previous convictions. In particular, you have, prior to your offending, come before the courts for sentence on 13 different occasions. Six of those appearances were in respect of charges involving violence. That history, and the circumstances of your present offending, demonstrate all too clearly that unless you take real steps to redeem yourself, you are destined, sadly, to spend a large part of your life in custody.
In his thorough plea to me on your behalf, Mr Stuart outlined the circumstances in which you have been held in custody over the last two or so years. In order to understand your situation, it is necessary to relate the history of various sentences, which you have received, over the last six years. In June 2002 Judge Hart, of the County Court, sentenced you to a period of 2 years and 6 months’ imprisonment, with a minimum non–parole period of 15 months, on one charge of causing injury recklessly, and one charge of reckless conduct endangering a person. That sentence was in relation to an offence committed by you, and for which you were arrested, in June 2001. Accordingly, you became eligible for parole on 19 September 2002, and the Parole Board made an order releasing you on parole on that date.
In January 2004, you were convicted at the Local Court at Macquarie Fields, New South Wales, on one charge of theft. You were sentenced to a term of imprisonment of 97 days. The offending for which you were thus sentenced activated a previous sentence of 9 months periodic detention, which had been imposed on you by the Fairfield Court in September 1999. As a consequence, you served nine months in custody until your release in September 2004. On completion of that sentence your parents sent you overseas to visit members of your family in Italy, in order to remove you from the environment which had got you into so much trouble. When you returned to Australia in early 2006, you worked with your father as a labourer, and also in his cleaning and maintenance business.
In July 2006, you were arrested in Sydney, and extradited to Melbourne, on one charge of murder. Subsequently, you were discharged on that charge at committal in July 2007. In the meantime, you had been held on remand in respect of that murder charge from 18 July 2006 to 14 November 2006, a period of 121 days. On 15 November 2006 you were then charged, and remanded in custody, on one charge of intentionally causing serious injury, which was alleged to have occurred on 21 January 2003. That charge was alleged to have occurred during the period in which you were on parole in respect of the sentence imposed on you by Judge Hart in June 2002. Ultimately, you came for sentence before her Honour Acting Judge Cotterell of the County Court, on a charge of intentionally causing injury, on 17 July 2008. Her Honour sentenced you to a term of imprisonment of 21 months. Her Honour declared, pursuant to s 18(4) of the Sentencing Act, that 610 days be reckoned as already served under that sentence. Accordingly, that sentence expired on 14 August 2008.
On the completion of that sentence, you were deemed to be on remand, in respect of the offence for which I must sentence you, from 15 August 2008. However, on 1 October 2008, the Parole Board cancelled your parole, in respect of the sentence imposed by Judge Hart in June 2002, due to the offence committed by you in January 2003, for which you were sentenced by Acting Judge Cotterell on 17 July 2008. Thus, you have available 46 days of pre-sentence detention, between 15 August and 1 October 2008, in respect of the offence for which I am to sentence you. Unless the Parole Board revokes the order cancelling your parole, you are due to serve the balance of the remaining 15 months of the sentence imposed on you, six years ago, by Judge Hart, and that sentence will expire in December 2009. However, unless I make an order to the contrary, any sentence which I am to impose upon you will be served concurrently with (that is, at the same time as) the sentence which you owe to the Parole Board, in respect of the outstanding term of imprisonment imposed by Judge Hart in 2002.
The foregoing recent history, which I have just recited, is somewhat complicated. However, it was the foundation of two submissions made on your behalf by Mr Stuart. First, he submitted that in sentencing you I should take into account, as “dead time”, the 121 days spent by you on remand in relation to the murder charge, between 18 July 2006 and 14 November 2006. Under the provisions of the Sentencing Act, that period of time does not count as pre-sentence detention, which would be reckoned as time served by you in relation to the period of imprisonment, which I am to impose upon you for your current offending. In my view, Mr Stuart’s submission is sound. In particular, it is appropriate that I should moderate the sentence which I would otherwise impose upon you, because of the period of time which you spent in custody in relation to the murder charge, for which you were discharged, and for which you have not received any credit in relation to any of your other offences.
Mr Stuart also put to me a somewhat complex submission relating to the 610 days pre-sentence detention, which was reckoned as served by you in respect of the sentence imposed on you on 17 July 2008. Mr Stuart initially submitted to me that, because of the timing of your sentence before Acting Judge Cotterell, and your sentence before me, you have lost the opportunity to have at least some of that time counted concurrently as pre-sentence detention in relation to both of those offences. While that submission is rather complicated, I consider that the more appropriate way to look at the matter is, that if you had not served as much time in pre-sentence detention as you had in relation to the offence for which you were sentenced by Acting Judge Cotterell, you would still be serving some of that sentence at the present time. As such, ordinarily, any sentence I impose on you would, at least in part, be served concurrently with the sentence which was imposed on you on 17 July 2008. In that way, the timing of your sentences has worked, somewhat, to your disadvantage. It is, I consider, appropriate that I also take that circumstance into account, in your favour, as a mitigating circumstance. The principles of just sentencing, and in particular the principle of totality, require that I moderate the sentence which I would otherwise impose upon you, by reason of the circumstances which I have just outlined.
Finally, it was put to me on your behalf that, for the first six months after your arrest in relation to the murder charge, that is from July 2006 until January 2007, you were held in custody in the high security Banksia Unit of Barwon Prison. During that period, you were only permitted to spend, at most, two hours per day in the exercise yard. For the first three months of that period, you were not permitted to share that exercise period with any other prisoner. In my view, the harsh nature of the circumstances of your custody, particularly during the “dead time” to which I have referred, is also relevant to the amount by which I should moderate the sentence to be imposed upon you.
In summary, then, you stand to be sentenced on a serious charge of intentionally causing serious injury. The maximum sentence for that charge is 20 years’ imprisonment. Your crime was premeditated, vicious, and without any justification at all. You attacked a defenceless man with a dangerous weapon. The injuries which you inflicted on him were particularly serious, and, indeed, only timely medical intervention prevented more grave consequences flowing from your actions. You have a number of previous convictions, particularly for violence. It is necessary that any sentence I impose on you be of sufficient severity to properly express the condemnation by this Court, and by the community, of your offending, and to deter you from further offending. In addition, it is necessary that the sentence be of sufficient length in order that it deter other persons in a similar position from resorting to violence, particularly in prison, in order to further their own ends. The safe and proper functioning of our prison system could not be ensured, if this Court were to impose a sentence which in any way reflected any tolerance of the type of conduct in which you engaged.
On the other hand, I take into account the matters to which I have already referred. In particular, there are some aspects of your background which indicate that, if you do take advantage of the opportunities your parents provide to you, you can abandon your more recent lifestyle, and live a useful life in the community. Further, as I have stated, the sentence which I impose will be moderated to reflect the time which you spent in custody in relation to the murder charge, on which you were discharged, and to reflect the fact that you have been somewhat disadvantaged by the timing of your sentence on the matters for which you were brought before Acting Judge Cotterell of the County Court.
Taking all those matters into account, I sentence you as follows. Damien Cossu, I sentence you for intentionally causing serious injury to Robert Musso to a term of imprisonment of 7 years and 6 months. I fix a minimum non-parole period of 5 years. Pursuant to s 18(4) of the Sentencing Act 1991, I declare that 54 days be reckoned as served under the sentence, and I shall cause that declaration to be noted in the records of the Court.
Although it is unnecessary for me to do so, in order that there be no misunderstanding, I do not make any direction under s 16(1) of the Sentencing Act. Thus, the sentence of imprisonment which I have just imposed upon you will be served concurrently with the period of imprisonment which you are currently serving, pursuant to the order of the Parole Board, in respect of the sentence imposed on you by Judge Hart on 19 June 2002.
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