R v Talanoa [2008] VSC 469

2 Benjamin David Talanoa, on 5 August 2008 you pleaded guilty to a single charge that on 30 November 2004 knowing or believing Tame Kohunui to be guilty of a serious indictable offence you did acts with the purpose of impeding the apprehension, prosecution, conviction or punishment of Tame Kohunui.

3 Tame Kohunui is the cousin of a woman named Vanessa White. At the time of the offence you were in an relationship with Ms White.

4 Tame Kohunui and his brother John, together with others, carried out two armed robberies at a gaming venue on 2 November 2004 and 28 November 2004. In the course of the second armed robbery, a security guard, Jason Gully, was shot and killed. Tame Kohunui and John Kohunui eventually pleaded guilty to the manslaughter of Mr Gully and gave evidence against a third man, Wally White, who was convicted of Jason Gully's murder.

5 The acts which are the foundation for the offence to which you have pleaded guilty are these. On 30 November 2004 you went to a location with Vanessa White where you met John and Tame Kohunui. According to your record of interview, at that time you knew that John and Tame Kohunui were in big trouble. You had heard on the news about the robbery where a security guard had been shot dead. John and Tame Kohunui were planning to go to Queensland by train. You gave Tame Kohunui your own passport from when you were a child and a copy of your birth certificate in order to assist Tame Kohunui in his escape. You were arrested on 12 January 2005 with John and Tame Kohunui who had returned from Queensland and were staying with you and Vanessa White at the time.

6 The maximum penalty for this offence is five years' imprisonment.

7 You were born in September 1980 and are now 28 years of age. You had a difficult childhood. The relevant facts are set out in the psychological report of Warren Simmons, which was tendered on your plea, and in evidence given orally by your mother. You were separated from your father at a very young age. You grew up in country Victoria where you had an unhappy time in primary school, partly because of racial abuse you suffered due to your South Pacific origins. You did not get on with your mother's second husband and at the age of 11 spent approximately a year living on the streets. During your adolescent years you went to secondary schools in Melbourne until Year 10. You had periods of serious substance abuse. You became a heroin user. You still take methadone.

8 As a child you were sexually abused by an older child and it seems that the consequences of that abuse have affected you ever since. Mr Simmons says there is no doubt you are suffering from symptoms of post traumatic stress disorder.

9 I will not attempt to catalogue all of the problems and difficulties you have experienced. They are set out in Mr Simmons' report and in your mother's evidence and I take them into account. Notwithstanding your difficulties, you have been in employment for significant periods.

10 You have 18 prior convictions from five court appearances beginning in 1998 when you were 17. You have prior convictions for armed robbery, attempted armed robbery, threat to kill, attempted robbery, and assaults, as well as prior convictions for drug, dishonesty and other street offences. On the prior convictions you have been sentenced to periods of detention in a youth training centre, you have been given a suspended sentence and have been fined.

11 On your plea I was told by your counsel that on 7 July 2006, you were sentenced by Judge Barnett in the County Court to a term of imprisonment of four years six months with a non-parole period of two years six months for an armed robbery which occurred on 9 January 2005. That is not of course a prior conviction for the purpose of this offence but it is relevant to an explanation of what has occurred since your arrest on 12 January 2005 and to your prospects of rehabilitation.[1]

12 The period of detention taken into account by Judge Barnett was 532 days. You were released on parole on 3 October 2007 and you were then granted bail on the charge to which you have now pleaded guilty on 26 November 2007. On 29 September 2008, you went back into custody on further matters. I was told on your plea that these matters involve assaults and that you deny all involvement in the alleged events. I was told it is presently intended that you will apply for bail in relation to those matters shortly.

13 On the plea counsel could not assist me in relation to your present situation concerning parole.

14 On the plea I was told that your time in custody has been very difficult for you and that much of it has been spent in protection due, so I was told, to the existence of ethnic rivalries. I was told you had witnessed assaults and a fatal stabbing. I was also told that you had trouble coping when released on parole. Mr Simmons says there is some degree of institutionalisation. His opinion is that persons such as yourself who suffer early dislocation from the family and are introduced to an undesirable sub-class when vulnerable, find it difficult to move back into a more law-abiding circle.

15 You are the father of five children to three different mothers. Your own mother told me that you have regular contact with three of them and that you are attempting to establish a relationship with the other two. You are now in a relationship with a woman who is 31 years of age. You have known her for a long time. Your relationship with her seems strong. She was in court on your plea.

16 Victim impact statements from Jason Gully's family were tendered on the plea. I have had regard to them. You, of course, had no involvement in the events at the gaming venue where he was killed.

17 On your plea, your counsel took me through the circumstances of the offence, your personal history and Mr Simmons' report. Your counsel called evidence from your mother. Notwithstanding your troubled background, you still have the support of your family.

18 Your counsel submitted that the acts impeding apprehension and conviction here are at the lowest level of the scale. I accept that they are at the lower end. This is not a case where the assistance involved disposing of a body or destroying evidence. Nevertheless you did attempt to assist Tame Kohunui to flee and he was fleeing after having committed a particularly serious offence.[2] It is very much against the community's interests that persons should assist offenders in this way and such activity must be deterred. [3]

19 Your counsel also relied upon your guilty plea, your unfortunate personal history, the support you have from your family and from your present partner and the matters set out in the psychological report. I do take all of those matters into account in your favour.

20 You do not have a good criminal history and since this offence you have committed an armed robbery. You are still relatively young and given your work history and the support you have, I consider there are still prospects for your rehabilitation. Nevertheless, given your history, specific deterrence is important. General deterrence is also important for the reasons I have mentioned.

21 I have had regard to sentences in other accessory matters but the range is very wide and there is only limited assistance to be obtained from them.

22 The Crown submitted that some period of custody ought to be imposed. The defence submitted that a wholly suspended sentence would be appropriate.

23 The cases reveal that bonds and suspended sentences are not unusual in relation to assisting offences, even in homicide cases,[4] but in the circumstances here, and particularly given your criminal history, I do not consider that a suspended sentence would be appropriate.

24 The relevant period of pre-sentence detention is agreed to be 55 days.

25 For the crime of being an accessory to manslaughter, I sentence you to three months' imprisonment. I record that but for your guilty plea I would have sentenced you to six months' imprisonment. Pursuant to s 18(4) of the Sentencing Act 1991 I declare that the period to be reckoned as already served under the sentence is 55 days and I direct that this be noted in the records of the Court.

[1] R v Pham [2003] VSCA 207; DPP v Rongonui [2007] VSCA 274.

[2] R v Troy Allan Kitchin [2001] VSCA 66 at [36].

[3] R v Charlotte Newton [2002] VSC 182 at [6].

[4] See, for example, R v Dowdy [2005] VSC 68, DPP v McLeod & ors [1999] VSC 298, R v Brown [2005] VSC 63, R v Miller [2002] VSC 456, R v Newton [2002] VSC 182, and R v Mathews [1999] VSC 479.