R v Ali [2007] VSC 350

3 The cell was overcrowded. There were 12 people in it. Michael Tully had been brought in from Mont Park to attend Court on an armed robbery charge. He had a simple manner and his vulnerability was apparent to others in the cell and no doubt, to you. You started talking to him. Mr Tully responded to your questioning by apparently agreeing with you. Witnesses said he looked scared and fearful and he was saying things to you in an effort to go along with you. It appears that you formed the erroneous view that he was a paedophile.

4 At some short time after one o'clock, lunch was brought to the cell. Mr Haysom, the custody officer responsible for distributing the lunches, looked through the window of the cell door and saw you in the process of commencing a roundhouse or twirling kick. Mr Haysom did not see the kick connect, although inmates spoke of you hitting and spitting at Mr Tully.

5 Mr Haysom called you out of the cell. You complained that you had been spat on. Mr Haysom reprimanded you and extracted from you an assurance that you would behave. You were returned to the cell. Within a short time, you continued goading Mr Tully. Some of the inmates endeavoured to prevail upon you. Mr Langenhoff told you to stop and Mr Richmiller cautioned you that Mr Tully was not what you thought he was. Despite this, you took a sticker from a lunchbox and giving it to another of the inmates, told him to cover the camera. This he did and you then proceeded to attack Mr Tully.

6 The assault was variously described as starting with a punch or a kick to the head or to the body. However it started, Mr Tully fell sideways onto the bench and according to the witnesses, you then, according to Marcus Smith, "jumped on his head a few times, five or six times". According to Paul Cacchia, "started stomping on his head with his foot; the force was full on". According to Stephen Langenhoff, "Jumped on his head with both feet, four or five times". According to Frank Richmiller, "Ali stomped on him probably a dozen times, using one leg up and with force vigour".

7 One witness described the ferocity of the attack as thus:

I'll never forget the look on the face of the defendant as he was doing it. His face was contorted, screwed up with just pure violence as he was doing it and the bloke was lying there helpless. He'd done nothing to deserve it.

8 After the attack, Mr Tully was bleeding and making grunting or snorting noises. You either wiped your shoes with coffee or washed them with water and told other inmates that no one had seen anything.

9 Mr Haysom returned to the cell door and when he saw Mr Tully's condition, he immediately called for assistance. The supervisor and another custody officer came to the cell and you were heard to say a number of times words to the effect, "He must have had a seizure" or "What happened boss, has he had a fit?" All of the inmates were removed from the cell and as you were placed in another cell you continued to ask, "Has he had an epileptic fit, boss?"

10 Subsequently, you were isolated from the other inmates and your clothing and shoes were taken from you. You declined to make a statement to the police and declined to participate in a record of interview which is, of course, your right to do so.

11 Mr Tully was not responsive to Mr Haysom's ministrations. An ambulance was called and he was taken to the Royal Melbourne Hospital. He required resuscitation upon admission. His Glasgow Coma Score was four out of 15, which was indicative of severe brain injury and reflected his conscious state. A CT scan revealed a right parietal skull fracture. He was transferred to intensive care and remained there until 12 May 1999. He did not regain consciousness during that time.

12 He was subsequently moved to a ward and ultimately to a nursing home on 10 August 1999. He was not able to care for himself at all in any way. He was not able to walk and he was completely dependent on others for all his needs.

13 A video of Mr Tully taken in 2000 was tendered in evidence and played in open Court. The video shows a severely disabled man, unable to speak and apparently with no independent movement.

14 Mr Tully died on 8 August 2002. He was 46 years old.

15 Victim Impact statements made by Mr Tully's brother, Rodney Tully and his partner, Glenda Patton, were tendered in evidence as Exhibits "A" and "B". Those statements speak eloquently of the quality of life left to Michael Tully as a result of your actions and of the loving and caring support given to him by his brother and sister-in-law. They also speak of the anxiety, stress and strain which they have each endured as they had sat through every trial. I am satisfied that they had also suffered greatly from the consequences of your conduct.

16 The maximum penalty for the crime of intentionally causing serious injury is 20 years' imprisonment. Clearly, this is a serious offence and a bad example of it. In sentencing you I must take into account the nature and gravity of the offence here committed and your role in it.

17 This was a vicious, brazen attack upon a simple, vulnerable man. It was totally unprovoked and unwarranted. You kicked him initially and warned that your behaviour was unacceptable, you undertook not to misbehave. Instead, you instructed another inmate to put a sticker over the camera and then proceeded to administer a brutal assault resulting in permanent, disabling and catastrophic injury to Mr Tully. The fact that you did it in the presence of witnesses suggests that you were confident that you could act with impunity and without repercussions. The reality is that your assault was so extreme that even experienced criminals were sickened by your conduct and prepared to give evidence on behalf of the Crown to ensure that you were brought to justice. It follows that I regard your culpability for this offence as high and that this offence is properly to be regarded as attracting a sentence at the high end of sentences imposed for offences of this kind.

18 Any sentence I impose must also serve to punish you and act in denunciation of your conduct. Further, any sentence should also seek to deter you from re-offending, even though you maintain your innocence and do not accept or acknowledge your responsibility for the crime. Indeed, you have shown a complete lack of remorse. Any sentence imposed must also give due weight to considerations of general deterrence and in my view, that is a consideration of utmost importance in this case, together with the need to pass a sentence which will serve to punish you and act in denunciation of your conduct.

19 It is totally unacceptable for persons held in custody and therefore in a vulnerable position, to be exposed to acts of brutality such as you committed here. People in custody are entitled to be protected, especially from assaults from other inmates. Accordingly, any sentence imposed should signal to like-minded members of the community and in particular, those in custody that if they commit offences in the circumstances and manner in which you have here, they can expect condign and salutary punishment.

20 You are 35 years old. You are one of six children, the only son. Your parents and five sisters support you in your predicament. Testimonials from family members tendered in evidence as Exhibit "2," speak of the effect your incarceration has had upon your parents and upon family life in general. All of your family look forward to the day you are released so that family life can resume.

21 A psychological evaluation by Dr Simon Kennedy, clinical psychologist, dated 28 May 2003 was tendered in evidence as Exhibit "4". In it, he details your domestic circumstances and antecedents, which I accept. He assessed you as average to low-average intelligence and that in his view, as expressed in 2003, you presented with relatively good rehabilitation potential, especially with the support of your family. It appears that this support has not changed since 2003, although I do not accept Dr Kennedy's opinion as to your potential for rehabilitation. In my view, this has not been borne out by the passage of years and your continual failure to acknowledge your responsibility for this crime.

22 You have been in custody since February 1999 and you have done very little towards your rehabilitation in that time. Two certificates pertaining to drug counselling courses in which you participated, in July and August 2001, were tendered in evidence, although it appears you have produced positive urine samples since. Your counsel submitted that since 2004 you have only produced one such positive sample, and that you are presently anticipating enrolling in a Bachelor of Communications. Your counsel has submitted that you will have work available to you with an uncle in one of his shops when you are released.

23 Dr Cidoni, consultant psychologist, in his report dated 2 August 2007 and tendered in evidence as Exhibit "1" stated and it is not disputed by your counsel, that you have spent the majority of the past eight years in the management units, segregated from the general prison population. Dr Cidoni remarked, "That there have been a number of incidents involving positive urine screens, disruptive behaviour and possession of prohibited objects". Your counsel submitted, however, that you have only been charged in respect of one incident and that was in 2005. You were dealt with by the Magistrates' Court in respect of a threat to kill, which was proved and dismissed and an assault with a weapon, the weapon being a sauce bottle, for which you were placed on a bond with conviction. The assault was occasioned on a prison officer.

24 It appears that a new management plan has been devised by the prison psychologist and over the last several months you have been compliant with it. That plan, as reported by Dr Cidoni, noted that your time in management units has not had a deterrent effect upon you. Dr Cidoni notes that you have been described at various times over the years whilst incarcerated as mildly depressed and anxious and that you are currently under psychiatric review with a view to being prescribed anti-depressants, which have not always been successful in the past.

25 Mr van de Wiel has submitted that you now have a new attitude brought about by the verdict of the jury in this third trial. Be that as it may, you nonetheless still maintain your innocence and therefore show no remorse and in those circumstances I would not regard your prospects for rehabilitation as at all likely. In that regard, I am not satisfied that you would benefit from any lengthy or substantial period on parole. You have not demonstrated rehabilitation or any substantive or constructive efforts directed towards your rehabilitation whilst in custody, other than in these most recent months. In these circumstances I could not be confident that your efforts will continue or that your rehabilitation would benefit from a substantial period on parole.

26 Mr van de Wiel also submitted that you have been held for periods in isolation as a consequence of untried allegations because of your attitude and therefore you have, in his words, "done it hard" and that you have done very little towards your rehabilitation because of the way in which you have been confined. Again, whilst this may appear to be so, insofar as it can be said to stem from your attitude to prison life and whilst you may regard yourself as suffering a great injustice, that does not justify behaviour which has presumably led to your being placed in management units and that being so, the way in which you choose to do your time, being entirely a matter for you, in my view is not to be regarded as a factor operating in your favour.

27 In sentencing you, I take into account your age and that you have now faced trial in respect of this offence on three occasions, which has been through no fault of your own, rather an inevitable consequence of the initial trial and successful appeals. I accept that his has been a source of anxiety to you and I propose to make due allowance for it in the sentencing process. I take into account also that as a result of having to endure three trials, you have suffered a delay in the ultimate resolution of this matter.

28 In sentencing you I also take into account the period that you were held on remand between 16 February 1999 to 13 May 1999, being a period on remand which was directly referable to the offences of false imprisonment, threats to kill and theft of which you were ultimately acquitted. I take into account also that on 28 August, 2000 you were sentenced to 62 days' imprisonment which sentence was ordered to be served concurrently with the sentence you were then undergoing and on 8 November, 2001 you were sentenced to 152 days' imprisonment, also ordered to be served concurrently with the sentence you were then undergoing and that if you had been properly convicted according to law at the first trial, you would have been able, as so ordered, to serve those two sentences concurrently with the sentence you were then undergoing for the intentionally causing serious injury to Mr Tully. By virtue of your successful appeals against conviction, you have lost the benefit of concurrency and thus would have been effectively worse off. Accordingly, in accordance with the principles of totality and in the interests of justice I propose to take into account that lost benefit of seven months concurrency in fixing the sentence to be imposed in respect of this sentence.

29 Accordingly, taking into account all matters which go in your favour and without in any way diminishing the nature and gravity of the offence here committed, you are sentenced to 15 years' imprisonment and I order that you serve a period of 12 years before being eligible for parole. I also declare that you have already served by way of pre-sentence detention a period of 2,830 days.

30 You oppose the making of a confiscation order because it is said you want your clothes returned to you so that they can be tested and you want them for sentimental reasons. I do not consider that those reasons are sufficient to prevent the making of such an order. The clothing will be retained pending the outcome of any appeal. You have had ample time since February 1999 to seek an independent testing of such clothing, especially when facing the preparation of any of the three trials and this was not done. No reason is advanced as to why you should be sentimental about the clothing worn by you on that day and accordingly, I regard that reason as spurious.

31 I propose to make the orders pursuant to s.78 of the Confiscation Act and further order pursuant to s.464ZFB(1) of the Crimes Act that the forensic sample previously obtained be retained for placement on the database, and I do that because, in my view, the seriousness of the circumstances of the offending warrant the order.