STATE OF TASMANIA v THOMAS JAMES ALIANO 8 JUNE 2022
COMMENTS ON PASSING SENTENCE PEARCE J
Thomas Aliano, I am to sentence you for two matters. You plead guilty to one count of assaulting Nathan Crawford in Risdon Prison on 4 September 2019. You were also found guilty by a jury of two counts of assaulting Joellie Tuthill on 24 February 2021. It is appropriate that I deal with the earlier crime first.
On 4 September 2019 you and Mr Crawford were both in Risdon Prison and were housed in the same unit. He is a right leg amputee who uses two crutches. At around 3 pm you were seated together at a table in one of the common areas and some words were exchanged. You became agitated, walked to where Mr Crawford was sitting and punched him to the left side of his face with a closed fist. He slumped to the floor. During the course of the next couple of minutes, although not continuously, you repeatedly punched Mr Crawford’s head and face, kicked the back of his neck, knelt on him, and kicked and stomped on his head and neck. At one point he managed to stand up but fell when you punched him again. For most of the time he was on the floor as you stood over him.
It seems that, despite the very violent and prolonged nature of the assault, the injuries suffered by Mr Crawford were not as serious as they might have been. Part of the reason may be that you were not wearing shoes at the time you kicked and stomped on him. Even so, he had 2.5 centimetre wound to his left eyebrow, grazes and swelling to his left eye and cheekbone, and his jaw was very sore and painful. The site of his amputation was grazed and sore and his neck and back were tender. He was taken to hospital where he was treated but not admitted. The laceration to his eye was closed with glue. He spent one night in the medical facility at the prison. There is no victim impact statement but that does not mean that there was no other impact.
Because this is a prison offence, the sentence I impose must be cumulative to any uncompleted sentence you were then serving or liable to serve. The assault breaches a condition of a three month suspended sentence imposed by a magistrate on 11 January 2019 to which you were then subject. It is not suggested that activation of that sentence is unjust.
I turn to the sentence for the assaults committed against Ms Tuthill. It is for me to determine the factual basis of the sentence, but my findings must be consistent with the verdicts. Facts adverse to you must be proved beyond reasonable doubt. You are not entitled to the mitigation a plea of guilty may otherwise have attracted.
The crimes were committed on 24 February 2021. Ms Tuthill, was a family friend. She had agreed that you could stay with her. You had recently been released from prison after having served a five month term for assault. While you were living there some disharmony developed. You had decided to move out. On the day you were planning to leave you and she argued about use of some electrical cables. Her evidence was that you followed her into her bedroom, grabbed her hard around the throat with your hands, choking her, and then bit her on the nose. She said that while you did this you called her a slut and told her to die. She told the jury that she thought she lost consciousness for a short period because she remembered getting up from the floor, feeling light headed and dizzy, with blurry vision. She heard her two year old daughter crying in the living room/kitchen area and went out to attend to her. While she stood at the kitchen sink you again grabbed her around the throat, first with both hands and then with one.
The complainant gave evidence of two further assaults which she said occurred as part of the same series of events. She said that after you grabbed her in the kitchen she returned to the bedroom where you pulled her hair, choked her and put a pillow over her face, before roughly wiping her face with a wet towel. The jury was not satisfied beyond reasonable doubt that those charges were proved and you were acquitted. It follows that the jury must have been satisfied beyond reasonable doubt of the truth of some, but not all, of the complainant’s evidence.
With some qualifications I am satisfied beyond reasonable doubt that you applied all of the force which the complainant described in the two assaults the jury found proved. I find that you first grabbed her around the throat in the bedroom and then bit her on the nose. She described the pressure to her throat as continuing for minutes. No doubt it felt like a long time to her, and it cannot be determined exactly how long it lasted, but I think it likely to have been seconds rather than minutes. I am not persuaded that she lost consciousness, but I accept her evidence that you grabbed her around the throat with sufficient force to restrict her breathing, that it was distressing for her and that afterwards she felt light headed and dazed. In those essential respects I found her to be a very persuasive witness. Evidence of bruising to her neck supported her account. The nature of the injury to her nose is very strong evidence that she was bitten. Photographs of her nose taken at the time and in the day or two following show that the skin is broken on both sides. It was suggested to her in cross examination that she was the aggressor and that she yelled at you and head butted you. There was no evidence at all of a head butt, and in any event her injury is completely inconsistent with the type of injury which would result from an action of that nature, even in the very unlikely event that a person would choose to administer a head butt with his or her nose. I reject the suggestion, which was unsupported by any evidence, that you believed that force was necessary to defend yourself.
I also find that further force was applied to the complainant’s neck in the kitchen. She did not suggest that on this occasion the force resulted in any altered state of consciousness although it was no doubt distressing and frightening for her. It is aggravating that the assault was committed in the immediate presence of her daughter, who she said was trying to push you away from her.
The jury’s verdict on the other two counts is explained, to my mind, by the absence of any evidence of blood on the pillow the complainant said was used, and the absence of any evidence that a towel was found. I think it likely that the complainant tended to overstate some aspects of her evidence, but that is not to say that the force which was applied did not, in the circumstances, amount to very serious assaults. You are a large and strong man. Her evidence is that she was somewhere between five foot two and five foot four. She had little chance of resisting or defending herself. The considerable danger of serious injury and even death posed by strangulation is now well recognised and is a matter of great community concern. It is a particularly troubling aspect of these assaults. This is not a crime committed in the circumstances of a relationship, where choking or strangulation can be a disturbing symptom of dominance and control, but those factors remain relevant when you are a person of such obvious physical superiority over Ms Tuthill.
You have a long record of offending for a wide range of criminal conduct. Most relevantly however you have one prior conviction for wounding, two for assault police and seven for assaults of various levels of seriousness. You have served many terms of imprisonment over the years, most recently six months in 2017 for driving while disqualified, 20 months in 2017 for bail, firearm, dishonesty and counterfeit money offences, five months in 2019 for bail and drug related driving offences, 28 days in 2019 for common assault and a further five months at the end of 2019 for another common assault. You are not to be punished again for past offences but they are relevant to the need for specific deterrence and protection of the public.
You are now aged 43. You are a single man. You have a daughter but have no contact with her, no other family connections and little support in the community. Likely on your release you will not have anywhere to live, which is a factor which may regrettably limit your ability to successfully apply for parole. Your plea of guilty to assaulting Mr Crawford is in your favour. You accept responsibility for your actions. The prison environment is a difficult one, and you are occasionally the subject of taunting and provocation. That is not an excuse though for such prolonged and serious violence especially against a person who was less able to defend himself. The assault against Mr Crawford was committed a week after you were diagnosed with a brain tumour which subsequently required surgery. The illness continues to affect you. Your co-ordination is reduced and you are subject to fitting. Of course treatment has been administered while you have been in prison, but I accept that it is a less than ideal place to deal with such a serious illness, especially when prison conditions have been even more arduous as a result of the pandemic. I think that, in light of your record and personal circumstances, the prospects for your rehabilitation are poor. In addition to the need for personal deterrence and protection of the public to which I have referred, there is a significant need for a sentence which vindicates the victims and carries general deterrence. There is also the need to make clear to other prisoners the potential consequences of assaults committed while in prison.
You have been in custody since your arrest on 1 March 2021 for having assaulted Ms Tuthill. In addition, a period of custody between 14 December 2019 and 4 September 2020 has not been taken into account in any other sentence. I regard it as appropriate to allow for those periods of custody, so the sentence I impose will commence on 8 June 2020. Although I am to sentence you for both crimes, and activate the suspended sentence, the total effect of the sentences should be taken into account. I will allow for parole, but adequate punishment and personal and general deterrence lead me to conclude that an overall non-parole period longer than the minimum is required.
Thomas Aliano, on indictment 175/2021, the assault of Mr Crawford, you are convicted and sentenced to imprisonment for one year from 8 June 2020. I order that you not be eligible for parole until having served eight months of that term.
The three month suspended sentence imposed by a magistrate on 11 January 2019 is activated, but to allow for totality I order that it be served concurrently with the sentence just imposed, that is from 8 June 2020.
On indictment 2/2022, counts 1 and 2, the assaults against Ms Tuthill, you are convicted. I impose one sentence. You are sentenced to imprisonment for one year and six months cumulative to the term just imposed. I order that you not be eligible for parole until having served one year of that term.
In accordance with the Sentencing Act, s 92A, I specify that the total term of imprisonment that you are liable to serve for all the sentences of imprisonment that are being imposed or activated is two years and six months from 8 June 2020 and that you are not eligible for parole until having served one year and eight months of the total term.