Director of Public Prosecutions v Smith
[2010] VSC 168
•8 April 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1622 of 2009
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NATHAN SMITH |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 March 2010 | |
DATE OF SENTENCE: | 8 April 2010 | |
CASE MAY BE CITED AS: | DPP v Smith | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 168 | |
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CRIMINAL LAW – Murder – Intentionally cause serious injury – Affray – Guilty plea – Youthful offender – Admissions – Cooperation with authorities – Circumstances of offending – Specific deterrence – General deterrence – Longer than usual parole period – Sentencing Act1991 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Elston SC | Office of Public Prosecutions |
| For the Accused | Mr D. Drake | Theo Magazis & Associates |
HIS HONOUR:
On 5 March 2010, you pleaded guilty to one count of murder, one count of intentionally causing serious injury and one count of affray. You have no prior convictions and have not previously come to the attention of police.
Facts
The circumstances leading up to the fight at Diggers Rest Recreational Reserve on Sunday 8 February 2009 began the week prior to the attack. During that week, a co-offender, Ante Vucak, then 18, contacted the deceased’s younger brother, Kyle. Vucak contacted Kyle trying to arrange a fight said to be in retaliation for an alleged assault committed by Kyle and others on a young male in Sunbury.
Prior to this contact taking place, Vucak and Kyle Nunan were not known to each other. Vucak, in effect, told Kyle that he was 16 years old and wanted to fight him for picking on his friend. Both Vucak and Kyle agreed to take part in a fist fight at the Diggers Rest Skate Park the coming Sunday.
On Friday 6 February 2009, Kyle Nunan received a telephone call from an unknown male confirming the location and time of the fight. In the days leading up to that Sunday, Kyle Nunan had told several others about the organised fight, including his brother Nathan Roberts-Nunan, Stephen Thorneycroft and his friends. In the days leading up to Sunday 8 February, Vucak had contacted several other co-accused in this matter and told them about the fight that had been organised.
On the afternoon of Sunday 8 February 2009, Ante Vucak began gathering a group to attend the fight, although there had been some discussion among young men in and around St Albans prior to that.
The group’s meeting place was in Acfold Street, St Albans, at the home of one of the young men involved, Timothy Lutze. You were living at that address along with another co-offender, Garcia, Lutze's mother, and Lutze's girlfriend, Ms Morris. Other young men came to the premises. They included Jovan Ogrizovic, Tomislav Stevanja, Marko Zizic, Tomislav Panic and Nikola Andreevski. At the premises knives, machetes, baseball bats, tyre levers and tool handles were assembled and laid out in the driveway.
The response to the challenge was obviously to go armed and at least some of your co-offenders have admitted some knowledge of the weapons but they must have been obvious to all.
Lutze placed a metal baseball bat and a machete in the boot of his car and assisted Vucak in preparing two petrol bombs, commonly known as Molotov cocktails. The weapons were distributed and upon being asked what you were intending to take you went into the house where you keep your work bag and retrieved two boning knives which you took with you. That decision was to lead to catastrophic consequences.
The group set off in three cars. Lutze drove his car and took you, CJS, Garcia and Ogrizovic. Ferraro drove Antony Vodanovic, Mladen Mrnjaus and Nikola Andreevski. Jozic took Marko Zizic, Ante Vucak and Tomislav Panic and Tomislav Stevanja. Your group therefore numbered 14 young men, some of whom were past or present friends and some of whom were strangers to each other.
The cars drove up the Calder Highway until you reached the BP Service Station at Calder Park. There Ante Vucak arranged to receive delivery of a small sword from Branislav Karula. The sword was given to John Garcia to be used in the fight.
There is evidence that at the service station, expressions were being used regarding what was intended at the skate park, such as “get these guys”, “fuck up these cunts”, “gonna fuck ‘em up”, “chop him, chop him, fuck him”.
From the time the group left the BP Service Station, it was perfectly clear on any view that there was a very serious enterprise involving a total of 14 armed young men underway.
The group drove to Ingot Road, Diggers Rest, near the Diggers Rest Recreational Reserve, which contains the Diggers Rest Skate Park, arriving there shortly before 6 pm. Lutze got out of his car and in company with Panic and Vucak got into the Renault being driven by Jozic. They then drove past the Diggers Rest Recreational Reserve and saw the deceased's car parked near the skate park before returning to Ingot Road.
Your preparations did not pass unobserved by local residents who saw members of your group armed. The registrations of the cars were noted and the police were called.
A group of nine started off towards the reserve. The drivers of the vehicles remained behind, as did Vodanovic and Zizic, who remained in Ferraro’s vehicle. Their prudence has meant that they have not been charged with any offence.
The group entered the reserve from the car-park entrance in Plumpton Road. The petrol bombs were left at the entrance to the car-park. The group then walked on, and on your own account quickly began to run across the oval.
Nathan Roberts-Nunan, who had come with his friend, Steven Thorneycroft, to support his younger brother had parked his car in the skate park car park. He was sitting in the back seat and Steven Thorneycroft was in the front seat. Kyle Noonan was standing by the vehicle talking to two friends.
Although there were a number of bystanders it does not appear that they had been recruited to assist Kyle Noonan but may have known that the fight was going to take place. It was at this time pretty close to 6 pm on Sunday 8 February. There were a large number of children and youths gathered round and using the skate park and a large group also at the nearby Diggers Rest Cricket Club.
The group who had come with you from St Albans reached the parked car. If you were not in the lead you were among those who reached Mr Roberts-Nunan and Mr Thorneycroft first. Although it is not easy to determine the role that each of the combatants played or the order in which each attacked, it seems that the following things occurred.
One of the group struck at Kyle Noonan and he was effectively forced or chased away towards the skate park. The deceased, Nathan Roberts-Nunan, got out of his car and was attacked by Vucak who was armed with a machete. At about the same time you, armed with two boning knives, stabbed Steven Thorneycroft in the stomach. The wound inflicted was sufficient to expose his intestines.
Nathan Roberts-Nunan tried to defend himself with a club lock which he reached into the car to get. Ogrizovic then struck him with a baseball bat with sufficient force to break the bat. You then stabbed Nathan Roberts-Nunan simultaneously in the left mid section of his back and the upper part of his right arm. The wound to his back proved to be fatal.
You and the other accused also attacked the vehicle, stabbing tyres, smashing the windscreen, the rear window and other windows of the car. It is that unremitting, senseless and cowardly display of mob violence at its most extreme which constitutes fighting to the fear of the public, the core of the crime of affray to which you have pleaded guilty. This must be one of the worst examples of affray which could be imagined. You chose to be one of the leaders of it.
Within five minutes, the group had come back across the oval and, among other things, attacked the car of the father of Nathan Roberts-Nunan, who it is claimed tried to run members down. That is probably an exaggeration. Jozic and Ferraro saw blood on at least some of the group. Lutze, after observing blood on you, was told by Garcia that the blood had come from somebody you had stabbed, a matter which you confirmed.
The group were driven back along the Calder Highway and went to a rural property at 65 Edwards Road, Diggers Rest. The property belonged to Branislav Carula, who had provided the small sword at the BP Service Station. There was discussion about the fight when you were at the property. Lutze heard others bragging about it and decisions were reached about destroying physical evidence and setting up alibis.
Weapons and bloodied clothing were left at the property. The group remained at the property for about 40 minutes. Lutze drove his Mitsubishi sedan around the corner and dumped it intending to report it stolen. You, Lutze, Ogrizovic, Garcia and CJS were collected by Lutze’s girlfriend’s mother and were dropped off at Ogrizovic’s home.
Ferraro returned with others to Lutze’s house where the police were waiting. Jozic was intercepted by the police at the Keilor Park Drive exit from the Calder Freeway. Nathan Roberts-Nunan was pronounced dead at the Royal Melbourne Hospital at 8.07 pm on Sunday 8 February 2009. Steven Thorneycroft underwent surgery for a lacerated liver and his spleen was removed. Such injuries are commonly fatal.
From the time you returned home from work and the young men began to converge on the house, you must have understood that there would be a very serious fight. From that time, you were asked what you were taking, if not from the time the weapons were laid out in the driveway, you must also have understood the fight’s comparative seriousness. The fact that petrol bombs were not used is the one moment of sanity which emerges from this enterprise.
You did not assist to any significant degree with the preparation back at the house. You have told the Court, and it emerges from some of the other material, that you felt a sense of obligation in relation to Lutze and his family and felt that you had to participate.
You were interviewed by police on 9 February 2009 and made full admissions as to your own conduct. Initially, you refused to provide the name or names of other persons who were involved. You made a statement to police admitting the part you played and setting out your knowledge of what was done and said. You participated in a video re-enactment of the events of the afternoon. You co-operated fully with police, made full admissions, expressed remorse and pleaded guilty at the earliest possible stage to the charges made against you.
You went into custody on 9 February 2009 and you have remained in custody since. Your pre-sentence detention up to but not including today is 423 days. You entered a plea of guilty at the committal on 7 December 2009 and I accept in the circumstances that was the earliest possible date.
Victim Impact
I have received a number of victim impact statements. Mr Graham Roberts, the grandfather of the deceased, Mr Phillip Noonan, the father of Nathan Roberts-Nunan, Mr Steven Thorneycroft and Kim Noonan Roberts, aunt of Mr Noonan.
Mr Phillip Nunan’s statement on behalf of the whole family was read out to the Court on the plea. There can be no possible doubt that the extended family have been devastated by these events. The family’s pain is greatly increased by the youth of the victim and the absolute senselessness in the circumstances surrounding his death. The family has had to move as a consequence of these matters.
The legal proceedings which have attended these matters have been and will continue to be protracted and a constant reminder to them. Mr Graham Roberts expressed the grief that grandparents would feel in circumstances such as these. Kim Nunan-Roberts has described some of the other effects what has happened has had on the family. As I have already said, devastation is not too strong a word to use in these circumstances.
In his own victim impact statement, Mr Steven Thorneycroft said he still suffers from the physical consequences of his wounds, he has lost an opportunity for employment, the psychological and emotional effects upon him have been severe. His daily life is affected by these events and apart from the physical injuries that he suffered, some of which are permanent, he will carry these matters with him for the rest of his life.
Of course, one of the matters for Mr Steven Thorneycroft is the associated death of Mr Roberts-Nunan and what he feels about that. None of the described consequences come as any surprise to anyone who has even a passing familiarity with the criminal justice system and I should note your comments to police on the morning after the incident display at least a fragmented awareness of these consequences.
There is nothing which I can do today which will do anything to properly allay the feelings of guilt and suffering of the victims. I observed during the plea of three of your co-offenders that it was the beginning of a process. Your plea marks the next point. There are other men who will come before the courts later this year to be dealt with. Whether any of that will properly give any true solace to the families is moot but the system can only do its best.
Nature of Offences
You have pleaded guilty to an offence which covers by its elements the death of Nathan Roberts-Nunan and the very serious injuries to Steven Thorneycroft. The deceased’s injuries included a stab injury to his back extending into the lung and involving the pulmonary blood vessels. His death occurred as a consequence of blood loss. He had suffered other injuries which were inflicted by others.
Mr Thorneycroft’s injuries included a lacerated splenic vein which led to the removal of his spleen, a lacerated liver, and three stomach lacerations with some evisceration of the bowel.
In your record of interview on 9 February 2009 at the Sunshine Police Station at 7.55 you said:
A 14 year old got bashed a couple of days ago. It was something that my friend, a friend’s little cousin, so we all went up there. They organised a fight or something.[1]
I saw someone get whacked in the face, baseball batted, the bat breaking in half over the head and then he got stabbed, no he got chopped and then he got stabbed and he got stabbed with knives.[2]
And then later
I thought it might have been a weapon or something, I stabbed him, the other guy got a baseball bat to the face and it just shattered on his face and he ripped out the club lock and then he got macheted and then he got the club lock and went to swing it at Ante and I stabbed him twice and then I just ran.[3]
[1]See Smith Record of Interview Q&A 38.
[2]See Smith Record of Interview Q&A 59.
[3]See Smith Record of Interview Q&A 301.
You have further pleaded guilty as charged to unlawfully fighting and making an affray. That offence, as I have already observed, is fighting to the fear of the public. The consequences are by no means irrelevant to this charge but you are otherwise directly accountable for the consequences. In deciding however, where the particular incidence of the crime of affray sits in the level of seriousness of that crime, the consequences are relevant and important.
I find that the case fits into the most serious category of affray. The maximum sentence for affray is five years. For murder, it is life imprisonment and for causing serious injury intentionally, 20 years. The sentencing submissions made on your behalf were generally based on your age, lack of prior convictions, your early pleas and the assistance you have provided to the police in addition to your background.
I will come in a moment to deal with the matters that were put on your behalf. You are still very young. You were born on 15 December 1990 and you are now 19 years of age. It follows that because of the provisions of the Sentencing Act you do not fall to be treated as a serious violent offender being under 21 years of age.
Background
Your upbringing was extremely difficult. You lived with both parents, then with foster parents, you went back to your birth parents, you lived for some time alone with your mother, later with your paternal grandmother and your father and then separately with your father. Your childhood was unhappy. You did enjoy the four and a half years you had with your foster family between the ages of about four and eight.
You got on well with your paternal grandmother. Much of your relationship with your father was marked by violence, subjugation and servitude. Your physical circumstances were marked by poverty. You were exposed to the use of drugs to some degree at a very young age.
You saw school as a release from the real difficulties you suffered at home. When you commenced part-time with a butcher, you were forced to turn over the moderate pay that you received to your father.
When at school, where you appear to have been conscientious student who did reasonably well, you were successful in winning a scholarship to China where you lived for a month with a Chinese family. You were able to take that trip with the support of the school community at Brimbank College, and somewhat contrary to the wishes of your father who wanted you at home to assist him. Because of your difficulties at home, on several occasions you lived for a time in accommodation found for you by those at the school.
You had been 10 when you were living with your mother in Shepparton and asked your grandmother to come and get you. That led you back into her care and ultimately the care of your father. It was the last you saw of your mother.
It was in the following year that you came in contact with the Lutze family when you, your father and older brother lived next door to them in St Albans. Your relationship with the Lutze family has been one of the positive things for you in your life.
When you were in Year 11 at school you moved in with the Lutze family and you were living with them at the time of these events. Timothy Lutze is your closest friend, although at some time earlier in Year 11 you had fallen out with him, as young men do. His mother is your guardian.
You did complete Year 11. You started VCE but transferred to an alternative trade oriented course and completed a number of units in that course. You got a job at Diamond Valley Pork where you worked first of all as a boner and ultimately as a drover, and you were in that employment at the time of these events. The pay was reasonably good. Also living in the Lutze household were Mr Garcia, another of the co-accused, and as I have already observed, Ms Morris, who is Mr Lutze’s girlfriend.
You have a number of brothers and sisters and half brothers and sisters, and at least one stepbrother and sister. You have lost contact with all of them, except your youngest brother, Craig, who is 13, and has been to visit you in prison to give you such support as he is able. You have the support of the Lutze family and your girlfriend, Melissa Green.
I accept that your prospects of rehabilitation are reasonably good and that you are genuinely remorseful for what you have done. A copy of the letter that you wrote to the families has been provided to me, it not having been available at the time of the plea.
You have been examined by an expert forensic psychologist, Pamela Matthews, who found that you were of average IQ and you did not suffer from any cognitive or personality dysfunction. She made the following formal findings:
Firstly, Mr Smith remains in the adolescent phrase of development in which boundary testing, risk taking and the influence of peer relationships predominate. The writer notes Mr Smith’s early reference to wearing two masks. It is the writer’s view Mr Smith has from the time he was a young child, very much wanted to have a sense of belonging in regard to his peer group, and this has been a significant factor in his involvement in the matters which took place on the day of the murder, including allowing himself to be persuaded by Vucak to join the affray at the park.
Secondly, Mr Smith has a strong emotional connection to Mr Cooper and his mother, who have over many years been part of his meagre social support system. Hence his involvement in agreeing to fight at the park has an element of feeling emotionally beholden to Mr Cooper, while not in any way blaming Mr Cooper.
Thirdly, and most significantly is the emotional dynamic Mr Smith refers to earlier when he speaks of being involved in some bullying at school in late Year 10, early Year 11, ‘I would think about home, I’d start to get angry. I wanted to get back at my father but hurt someone else.’ This latter aspect of Mr Smith’s presentation in the writer's view is directly related to Mr Smith's developmental exposure to many violent and abusive experiences and involves a post-trauma quality and intentionally during which post-traumatic role re-enactment switches from victim to perpetrator, hence the intensity of the attack upon the victim.
In the writer’s view Mr Smith presents with many positives. He is hard-working and for the most part responsible. He is also very remorseful for and traumatised by the death of the victim.
In combination with his youth, his prospect for rehabilitation, in the writer’s view, are significant.[4]
[4]See Report of Pamela Matthews dated 4 March 2010.
One matter that emerged on the plea, which is plainly of some significance and concern, is picked up in that report. What was said no the plea by your counsel was this:
Perversely, the day before this murder, he rang his father on the phone and asked him, of all people, ‘how do you deal with anger because I get angry and I don’t know what it’s about’. And his father said to him, ‘you just go and sit in a room and do nothing’.
And what was said by Ms Matthews has to be seen in that context of your reaction on this day.
For completeness, I should indicate that the references to Mr Cooper and his mother in the report are references to Timothy Lutze and Mrs Lutze. The reference to two masks was a reference to your reaction to your life at home, one mask, and your life at school, the other mask.
I cannot understand how these events fell out the way they did. I do not understand how the number of weapons came to be involved and how the commitment to use those weapons and violence came about. You knew some of the group but by no means all of them. You bought into a fight which was not yours.
Your conduct cannot be explained by your loyalty to Mr Lutze and his family. It is not capable of any rational explanation. An important aspect of these events was described by your counsel, Mr Drake, when he said
At that stage he felt that he just could not pull out. When he arrived at the Diggers Rest recreational reserve he was led to believe there were going to be large numbers of similarly armed youths, and the group, having once discussed tactics I suppose and arriving at the scene, three cars having been deployed in circumstances where a quick getaway could be made, they crossed the oval.
They crossed in front of persons who had been there to watch cricket and I cannot recall who it was, but it was noted that they were sort of trudging along with hoodies on and apparently trying to conceal weapons which nonetheless could be seen. The only person in the group who was not covering his appearance is my client and he was clearly seen by those witnesses with his blonde hair.
It is to be noted that all of the other offenders appeared to be of a Yugoslav background or even an Asian background. They were significantly darker than he and so in consequence he stood out. They walked across or trudged across the oval in the direction of where they had been told there were 15 waiting for them. A call went up and a trot started.
My client says for no reason he can explain, that he then joined in the run and in fact he started to sprint and the further and further he went the faster he went, so much so that he does not dispute any suggestion that he may - there's a suggestion that some blonde was towards the front, if not in the front. He does not dispute that may be so.
He said there was no sound as far as he was concerned other than calls from the people around him. In the course of his re-enactment he was questioned about anger. At question 610 he was asked, ‘You said earlier on in the interview that you like, when you got angry you sort of lose it.’ His answer was, ‘Yeah, kind of snap.’ ‘What do you mean by that?’ ‘I don’t know what it is, but I’ve got a funny feeling it’s my past life. It’s what has happened to me when I was a kid growing up. I’ve been abused and misused and used and something clicked and I went off.
In total there were 900 or so questions in the record of interview. In your record of interview you were frank. You expressed concern for the family of the deceased and for Mr Thorneycroft, and made no attempt to shift the blame onto anyone else. You have completed as many courses in the year that you have been in custody as you have been able to and a large number of certificates have been provided to me demonstrating that fact.
You are young and you have some difficulties in adult prison. I will have my reasons for sentence forwarded to the authorities with my recommendation that in so far as possible you should serve your sentence, at least the first part of it, in a youth oriented section within the adult prison system until you have had a chance to mature.
A features of this case which cannot be avoided is that a young man who was entirely innocent and who was doing nothing more than looking out for his younger brother is dead. The effect on his family is, has been and continues to be devastating. Another equally innocent young man has been very badly injured and he will suffer the consequences for the rest of his life.
This is an example of unrestrained gang violence. Even before your involvement, others had used a samurai sword and a baseball bat in a brutal fashion. It also involved the use of knives, by you. The use of knives is, correctly, of great concern to the community and the consequence of the use of knives cannot be better demonstrated than in this case.
There was a certain inevitability of serious consequence in relation to your decision to take the knives with you. It is conduct involving the use of knives which the community would particularly abhor.
Sentence
I have regard to the principles of both specific and general deterrence and also of just punishment. I am obliged to take your youth into account and I take into account all the other matters which were so thoroughly and capably put by Mr Drake on your behalf.
In particular, I must have regard to the principle of totality when fixing the total effective sentence and the individual sentences which will be imposed upon you.
Your story should be taught in schools to show how such an apparently simple enterprise, taken on in the name of absolutely mistaken loyalty, can lead to such tragic consequences. It is an example of what a group of young men can senselessly do in a gang when I doubt that any of you would have done it alone.
That tale, of course, includes the very serious consequences which flow to you. On Count 1, the murder of Nathan Roberts-Nunan, you are sentenced to be imprisoned for 18 years. On Count 2, causing serious injury intentionally to Steven Thorneycroft, you are sentenced to be imprisoned for eight years.
I direct that four years of that sentence be served cumulatively upon the sentence on Count 1. On Count 3, affray, I sentence you to be imprisoned for three years. In your case, the affray is so bound up with your conduct on Counts 1 and 2 I make no order as to cumulation on that count. The total effective sentence is therefore 22 years.
To further reflect your youth and your prospects of rehabilitation, and in particular your early plea to these most serious of offences, I have decided that it would be appropriate to fix a longer than usual parole period. I therefore fix a period of 17 years before you are eligible for parole.
I am obliged, pursuant to s 6AAA of the Sentencing Act 1994, to state what sentence I would have imposed had it not been for your plea of guilty. I would have sentenced you to be imprisoned for 25 years with a non-parole period of 21 years. I declare that you have already served 423 days of this sentence, and I order that this declaration and its details be entered in the records of the Court.
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