Director of Public Prosecutions v Smith
[2019] VCC 838
•7 June 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-18-00199
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WAYNE SMITH |
---
| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF TRIAL: | November 2018 |
| DATE OF SENTENCE: | 7 June 2019 |
| CASE MAY BE CITED AS: | DPP v Smith |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 838 |
REASONS FOR SENTENCE
---Subject: Rape, Threat to kill, Pervert the course of Justice.
Sentence:7 ½ years imprisonment, Non parole 5 years,
Sex Offenders Registration – 15 years---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Grant | |
| For the Accused | Mr J. Lowy |
HIS HONOUR:
1After a trial in Ballarat Circuit in November of 2018 you have been found guilty by a jury of the offences of rape, make threat to kill and attempting to pervert the course of justice.
2In passing sentence I must have regard to the maximum penalty for each of these offences. The maximum penalty for rape is imprisonment for twenty five (25) years. The maximum penalty for making a threat to kill is imprisonment for ten (10) years and the maximum penalty for perverting the course of justice is imprisonment for twenty five (25) years.
3On the plea following your conviction you pleaded guilty to two related summary charges and agreed to having those matters dealt with by me in this court. Those summary charges were firstly, harassing a witness Scott Smart. The maximum penalty for this offence is 120 penalty units or 12 months' imprisonment.
4The second summary charge that you pleaded guilty to was a charge of trespass for which the maximum penalty is 25 penalty units, or six months' imprisonment.
5Also, on the plea you pleaded not guilty to two further related summary charges and you agreed to having those charges dealt with by me. You did not give evidence on the plea concerning those two summary charges although you gave evidence in the trial. Evidence was given about those further two summary charges before the jury, including your sworn evidence, and I was asked to decide your guilt of those matters having regard to that evidence at trial.
6Those charges were, firstly of contravening a personal safety intervention order by recruiting and paying Bridie Layman[1] and Jen Marks[2] to assault the complainant/victim involved in the rape charge, whom I shall refer to by the pseudonym Christine Adams.[3] Consistent with the jury verdict on charge 3 on the indictment (attempt to pervert the course of justice), and the evidence given during the trial, and the evidence given on the plea of the making of a personal safety intervention order to protect Christine Adams, I find that charge proved. The maximum penalty for this offence is two (2) years' imprisonment, or a fine of 240 penalty units or both.
[1] A pseudonym.
[2] A pseudonym.
[3] A pseudonym.
7Secondly, there was a further related summary charge which you also pleaded not guilty to, a charge of committing an indictable offence whilst on bail, for which the maximum penalty is 30 penalty units or three months' imprisonment. That offence alleged attempting to pervert the course of justice whilst on bail and relates to your attempts to have Bridie Layman and Jen Marks assault Christine Adams whilst you were released on bail. Also, consistent with the jury verdict on charge 3 on the indictment, and the evidence given during the trial I also find that charge proved.
8I note that your counsel made no submissions on the plea that I should not find each of these further summary charges to have been proven.
9Whilst you cannot be punished for having had a trial on the indictable offences at the same time you cannot expect a reduction in sentence that would normally follow had you pleaded guilty to the charges.
10You were born on the 14th March 1972 and you were 45 years old at the time of the offending in the charges on the indictment. You were tried with your partner Debra Warren who was convicted of one charge of having attempted with you to pervert the course of justice. I have sentenced her to a Community Corrections Order. The two of you are the parents of two children, a boy and a girl. Whilst Debra Warren was equally involved with you in the commission of charge 3, I am strongly of the opinion that you were the principal offender in that charge and she was doing as you told her. Further, her background history is very different to your background antecedents, a factor to which I will discuss later in these sentencing remarks.
11The victim of the rape, Ms Adams, was aged 15 at the time of the offending. She was a school friend of your daughter who is a little younger than her.
12The jury heard, and by its verdict must be taken to have accepted, evidence that on or about the 6th May 2017 Ms Adams was invited by your daughter to go camping at a property owned by your partner Ms Warren in Dereel. The property is a remote bush block with some sheds and three caravans and facilities on it. She accepted the invitation and went to the property with you and Debra Warren and your daughter and a young man Tyler Jackson who was a friend of the two girls.
13The group sat around a camp fire with you and consumed some vodka mixed with soft drink. Ms Adams agreed to go with you on a ride on a four wheel buggy that was kept at the property. Whilst on this ride you left your property and drove to a nearby property where you tried to gain access to a cabin located there but you were unable to gain entry. Your attempt to gain entry was recorded on CCTV installed at the property. This is the basis of one of the summary charges that you have pleaded guilty to, trespass. The property that you attempted to gain entry to was owned by one Scott Smart. He reported the matter to the police and you were charged. After you were charged you sent Smart an SMS message in which you said, inter alia, “you took it the wrong way and had me charged, that’s trouble there in my eyes, drop the charges and we don’t have any dramas.” That was harassment of Smart which you knew to be a witness against you.
14After you could not gain access to this cabin you left on the buggy and returned to your property. I regard your trespass as a low level offence for the purposes of sentencing you on that summary charge.
15A short time later, you again asked Ms Adams to accompany you on a second ride in the buggy. She initially refused your invitation but soon after agreed to go once again. You drove the buggy, with Ms Adams out of your property and down the road to a paddock where you stopped the buggy and said to her, “We’re gonna fuck”. She said, “No”.
16Ms Adams gave evidence from a remote witness facility, and her evidence was pre-recorded before empanelment. Her evidence must be taken to have been accepted by the jury.
17She said she had three or four drinks from a bowl of mixed drink prepared by Ms Warren. She said she felt quite drunk at T45-46. She gave evidence of going on the first ride in the buggy and stopping at a bungalow where you tried to break in. I do not regard it as a feature of your offending that you deliberately allowed the victim to drink alcohol, although you knew she had been drinking.
18She said you stopped the buggy and told her “We’re going to fuck” and she told you “No we’re not, don’t be so stupid” at T52. According to the evidence of Adams which the jury must be taken to have accepted, you stopped the buggy, and got out and pulled Ms Adams out of the buggy. She kept saying, “No”, to you. You put Ms Adams on the ground and tried to pull her pants off, which you did pulling them down to around her ankles; T54. As she lay on the ground on her back you laid on top of her and placed your penis in her vagina and raped her; T58. Ms Adams struggled trying to kick you to have you stop and she tried to push you off her; T58.
19She gave this evidence of how this all ended at T59.
20“Now you've told us that you were kicking at him and trying to get him away?
---Yeah. So at that stage I'd given up because he had grabbed my knees and pinned me down so I couldn't do anything but eventually I hit him in the penis and he got up and then I got up and um that's when we left.” (Charge 1 Rape)21The both of you returned to the camp site. You told Ms Adams to tell the others that the buggy had broken down to explain your delay in returning to the camp site. She agreed to do so, she said because she was scared at T62. You told her that if she told anyone what you had done to her you were going to kill her; (Charge 2 Threat to Kill). Ms Adams said that she felt really threatened by you at T62. She said she did not say a word about what had happened when she got back to the campsite. She said she was upset and went straight to sleep; T63.
22Ms Adams gave evidence she tried to tell her best friend Mia Stevenson[4] (who was also a friend of your daughter) about what you had done but she (Stevenson) did not believe her.
[4] A pseudonym
23Ms Adams gave evidence about being “fake bashed” by Jen Marks and Bridie Layman in the Ballarat Mall. She said that they pushed her to the ground and pretended to bash and kick her at T65.
24It was put to Ms Adams when cross examined by your counsel that she was lying and making the whole story up. She denied this suggestion at T85.
25There was no evidence as to whether or not you wore a condom. There was also no evidence as to whether or not you ejaculated. That being the case, I make no findings on either of these matters.
26You gave evidence and you were cross examined. You denied all of the offending alleged, and the jury, by its verdict, must be taken to have rejected your evidence and to have found that the prosecution proved each of the charges contained in the indictment beyond reasonable doubt. I am not surprised the jury rejected your evidence which I found to be most unconvincing.
27The prosecution called Jen Marks and Bridie Layman both of whom gave evidence that you asked them to bash Adams, and that you agreed to pay them $100 to do so. They gave evidence that they in fact pretended to bash up Adams and they filmed this and that they were each paid $50.00 by Ms Warren for having done so. No video of their actions was produced in evidence, although there was mention in the evidence of one having been made. Your purpose in getting Jen Marks and Bridie Layman to bash Ms Adams was to have her withdraw her complaint of rape which she had made to the police. This was done after you had in fact been charged and bailed; (Charge 3 Attempt to Pervert the Course of Justice and Summary Charge of committing an indictable offence whilst on bail).
28Your offending in each of the charges on the indictment is serious offending. As regards charge 1, rape, you obviously thought about what you were going to do and how you were going to execute your plan which was to isolate the victim from the rest of the party to give you the opportunity to rape her. I accept your planning was, however, both limited and somewhat unsophisticated. You acted like a predator, lusting for the victim. I accept that the evidence shows that your penetration of the victim was short lived but that does little to ameliorate what must have been a terrifying ordeal for the victim.
29The victim was a young girl only 15 years of age. You dragged her from the buggy and raped her in a penile/vaginal manner on the ground. She clearly refused your verbal request, and you ignored her refusal, her protests, and her attempts to resist you. You used a level of force to achieve penetration of the victim. I accept the victim was not physically harmed but you subjected her to a terrifying ordeal from which she continues to suffer psychologically and this will likely be the case for a very long time. I agree with the prosecution submission that you regarded the victim not as a person deserving respect but more as a chattel or thing to be used by you for your sexual gratification.
30That you threatened to kill the victim immediately after you raped her must have instilled further fear in the victim. That was your intention and she remained silent as to the rape when she returned to the campsite and she did not immediately go to the police. Charge 2, threat to kill is thus also a serious example of this offence. I note you have a prior conviction for this offence.
31When I sentenced Debra Warren on charge 3, I said, inter alia:
32“As I indicated at the initial commencement of your plea soon after the completion of the trial, your offending is a very serious example of the offence of attempting to pervert the course of justice. It was an attempt to influence a complainant in a rape case to withdraw her complaint. That said, it was an amateurish and unsophisticated attempt.”
33Those comments apply equally to you as regards charge 3. However, whereas Warren acted to do your bidding, and on your instructions, you were the one who instigated the plan to have the victim bashed and you actioned it. Your purpose was to have the victim withdraw her complaint of rape. Again, your offending in charge 3 is a serious example of the offence of attempting to pervert the course of justice, and the summary charge of attempting to commit an indictable offence whilst on bail.
34The prosecution filed a Victim Impact Statement from the victim in the rape charge which I admitted into evidence as Exhibit C. She feels sad, embarrassed and ashamed as if what happened was her fault. She is frightened of men. These are common feelings for victims of rape. Having seen her give her evidence I have formed the view that what you did to her has had a very traumatic psychological effect upon her from which she is likely to suffer for some time. In passing sentence I have taken the content of the Victim Impact Statement into account as I must.
35Your counsel, Mr Lowy, filed a helpful outline of submissions with the court which I marked as Exhibit 1. At counsel’s request, and for reasons that will shortly become apparent the plea was in fact heard over three separate listing dates to enable a body of medical evidence relating to you to be assembled.
36You are now aged 47 years of age. You are one of four children. Your parents separated when you were aged six. Your father died about seven years ago. I was told he was a violent alcoholic who had little to do with you. You maintain what I was told was a supportive relationship with your mother. I was told and accept that you were “kicked out of home” on a number of occasions the first being when you were only 15 years old.
37You have limited education having left school in year 8. I was told in your counsel’s submissions that you were “severely assaulted by police” which resulted in an acquired brain injury.
38You have admitted a significant criminal history from 24 previous court appearances commencing in February 1990 when aged 18. You have a number of prior convictions for crimes involving violence, including in March 2013 when you were convicted of unlawful assault and making a threat to kill. In 1997 you were convicted in this court of the crime of armed robbery. On appeal in the Supreme Court your sentence was reduced to five years with a three year non-parole period.
39You have spent considerable time in custody where it is submitted you have witnessed violence, including rapes and stabbings as a result of which you are said to suffer from post-traumatic stress disorder.
40You met Ms Warren aged 28 and I accept some stability came into your life from that point reflected in the reduction and frequency of your offending as revealed by your prior criminal record. That relationship having extended over 17 years has now ended. There are two children of that relationship. Ms Warren on her plea, in your absence, told me of the abuse she has been subjected to by you. She is happy the relationship has ended. It did so when you were taken into custody on these matters.
41You have a spasmodic work record. You last worked in a Tattoo parlour operated by Ms Warren. That was about 10 years ago. Your bail was revoked and you were remanded in custody after the fake bashing occurred and you have been in custody since 15 August 2017. I was told and accept that at the time you were remanded in custody you were in receipt of a Disability Support Pension and Ms Warren was your carer.
42I admitted into evidence a psychological report from Dr Aaron Cunningham who saw you for the purposes of assessment at Ravenhall Prison on the 8th February this year. You told Dr Cunningham of having been beaten by police but you could not remember whether you were subsequently diagnosed with an acquired brain injury. You also told him of a significant illicit drug habit using methylamphetamine and heroin until you met Debra Warren when your drug use decreased to the extent where you told Dr Cunningham you have remained drug free for six to seven years.
43Dr Cunningham carried out psychological testing of you. He thought you suffer post-traumatic stress disorder aggravated by your incarceration and anxiety caused thereby and also anxiety caused by your blood disorder polycythemia vera and the lack of appropriate treatment of you for this condition whilst in prison.
44Polycythemia vera (PRV) is a medical condition from which you have suffered from for some time, having been first diagnosed in 2015. I received into evidence medical reports from Dr Salem, a professor of medicine at Monash University. PRV is a blood condition where the number of red blood cells in the blood is too high. This can cause blood clots in the veins and arteries of the body. It is treated by venesection and dosages of aspirin. Venesection is blood-letting to reduce the red cell count. Aspirin is used to reduce the risk of blood clotting. Symptoms from this illness can be itchy hands and feet and headaches. I was told and accept you suffer from these symptoms from time to time whilst in prison especially when you do not receive regular venesection.
45It is common ground that before you went into custody you were receiving appropriate treatment for this condition at the Ballarat Base Hospital but since your incarceration you have not. I also received into evidence a full medical report from Dr Mohamed Mosa at Correct Care (Exhibit 5) and medical records from your time in custody. In his report Dr Mosa reported that whilst in prison you have been regularly reviewed by the haematology clinic and your condition of PRV is regarded as stable. Dr Mosa confirmed that when admitted into prison you suffered from anxiety and depression for which you have been appropriately medicated and this condition is regarded as currently stable.
46The prosecution counsel and your counsel told me on further plea on 22 May that they agree your venesections whilst in custody have been irregular. I was told you should have been receiving such treatment every three months but that has not been the case. You received venesections in custody on the 5th April 2018, 26th April 2018 and 4th July 2018, Your treatment was reviewed on 2nd August 2018 and it was apparently recommended you receive a venesection every four weeks. Thereafter you received venesections on 11th December 2018, the 17th January 2019, 19th February 2019. A venesection was scheduled for the 4th April 2019 but you did not attend on that occasion.
47I accept that you are not receiving in prison the level of care that you ought be receiving which should be a venesection every four weeks and that unless this is done you are at increased risk of blood clotting and with that at risk of stroke or heart attack. I accept this makes your time in prison more burdensome than for most others, and together with the post-traumatic stress disorder from which you suffer your time in prison is even more burdensome than for most. I accept that unless you receive proper treatment for the PRV condition you are at risk of imprisonment having a gravely adverse effect upon your health. In passing sentence I have taken all of this into account.
48As I have earlier stated, each of the crimes on the indictment are serious examples of the kind of offence stated. In sentencing for each of these offences I must have regard to general deterrence and denunciation. The community simply will not tolerate 45 year old men raping 15 year old girls and then threatening to kill them and then having them bashed when they bring a complaint of rape in order to threaten them and dissuade them from giving evidence. In your case I must also have regard to specific deterrence especially where you have a past history of violence and making threats. Ms Warren having disassociated herself with you and re-partnered I think your prospects of rehabilitation must be assessed as low. I understand that you challenge the jury’s verdict and maintain your innocence and in that context you have expressed no remorse. I have taken all of these factor into account in arriving at an appropriate sentence.
49On charge 1 rape, you are convicted and sentenced to a term of imprisonment of seven years.
50On charge 2, make threat to kill you are convicted and sentenced to a term of imprisonment of six months.
51On charge 3, attempt to pervert the course of justice, you are convicted and sentenced to a term of imprisonment of one year.
52On the summary charge of harassing a witness, Scott Smart, you are convicted and sentenced to a term of imprisonment of one month.
53On the summary charge of trespass you are convicted and sentenced to a term of imprisonment of one month.
54On each of the summary charges which you have pleaded guilty to, for the purposes of S 6AAA of the Sentencing Act 1991, I declare that had it not been for your pleas of guilty to these two charges I would have imposed a total sentence of six weeks' imprisonment on each charge.
55On the summary charge of contravening a personal safety intervention order where Christine Adams was the protected person, you are convicted and sentenced to a term of imprisonment of one month.
56On the charge of committing an indictable offence, attempting to pervert the course of justice whilst on bail, you are convicted and sentenced to a term of imprisonment of one month.
57I direct that six months of the sentence imposed on charge 3 cumulate upon the sentence imposed on charge 1 making a total effective sentence of seven (7) years and six (6) months' imprisonment.
58I direct that you serve a minimum term of five (5) years before being eligible for release on parole.
59I declare there has been 661 days pre-sentence detention under the sentences passed this day and direct that 661 days be reckoned as having been already served, be entered into the records of the court and be deducted administratively.
60Are there any matters arising out of that?
61MR LOWY: No, Your Honour.
62HIS HONOUR: Ms Warren?
63MS WARREN: No, Your Honour. No, Your Honour.
64HIS HONOUR: Thank you.
65MR LOWY: As Your Honour pleases.
66HIS HONOUR: Very well. We should terminate the transmission please.
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