Director of Public Prosecutions v Smith
[2018] VSC 684
•16 November 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0215
| DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| ANTHONY JOHN SMITH | Accused |
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JUDGE: | BELL J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 September 2018 |
DATE OF SENTENCE: | 16 November 2018 |
CASE MAY BE CITED AS: | DPP v Smith |
MEDIUM NEUTRAL CITATION: | [2018] VSC 684 |
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CRIMINAL LAW — sentencing — manslaughter — offer accepted of plea of guilty to charge of manslaughter after accused committed on but before trial of charge of murder — accused man non-consensually strangled or choked woman to death during consensual sexual activity — man physically strong and woman small and petite — killing took place in confined space of motor vehicle, rendering woman virtually defenceless — accused had previously caused physical distress to another woman during strangling and choking in similar circumstances — actions of accused associated with disrespectful, contemptuous and misogynistic views and opinions about women and deceased — limited remorse — accused buried body of victim and evaded responsibility for her death by telling lies and blaming others for the killing — as result of covert police operation, accused revealed location of victim’s grave 20 months later — gravity of offending — general and specific deterrence — denunciation.
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APPEARANCES: | Counsel | Solicitors |
| For the prosecution | Mr K J Doyle | Office of Public Prosecutions Victoria |
| For the accused | Mr A L Purcell | Galbally and O’Bryan Lawyers |
HIS HONOUR:
Anthony John Smith, you are charged on indictment with the offence of manslaughter of Karen Rae at Frankston in Victoria on 15 April 2015 for which you were arrested on 9 December 2016. You pleaded guilty to this charge after being initially charged with the offence of murder in respect of which you undertook a contested committal. After being so committed on, and before the trial of, the charge of murder in this court, on 21 May 2018 you offered to plead guilty to the offence of manslaughter, which was accepted by the prosecution. You were arraigned on and pleaded guilty to that charge on 6 June 2018. You are aged 51 years.
The maximum penalty for the crime of manslaughter is imprisonment for 20 years. Under the Sentencing Act 1991 (Vic), the only purposes for which sentences may be imposed are to impose a just punishment, to deter the offender specifically and other people generally from committing the same or similar offences, to rehabilitate the offender, to denounce the offender’s criminal conduct and to protect the community.
Karen was born on 12 November 1966 and was aged only 48 years when she died. She would have been aged 52 years last Monday. Karen was a daughter, a mother and a wife. Her mother is Christina Boyle, who has written a heartfelt victim impact statement to which I will later refer. She has lost her only daughter. Karen’s four children, all sons, are aged 24 years, 23 years, 18 years and the youngest is aged only 9 years. They have lost their mother. Karen’s husband and the father to the three eldest children is Vincent Sabatucci. The couple separated 16 years ago but never divorced. He has lost his wife and the co-parent of those children. Bruce Bainton, Karen’s former domestic partner, is the father and has the custody of her youngest child, but she was in frequent contact. He has lost his former partner and the co-parent of that child. Karen has other relatives, who are also grieving. The court has seen touching photographs of Karen as a child, as a child with her mother and as an adult in the company of her family and friends, including with one of her own children. This is the Karen that has been lost.
It is true that Karen had a long history of drug addiction involving mainly methamphetamines and cannabis and this affected her lifestyle and her health. It is also true that she was estranged from her mother, although there were promising signs of reconnection not long before her death. But her drug-addicted lifestyle does not diminish by even one particle the respect that she warrants as a human being and a woman, or the responsibility that you bear for the crime that violated the most fundamental of her human rights, the right to life. Nor does it diminish by even one particle the dreadful impact of the killing upon her family and friends, who are the living victims of the crime, about whom I will say more later.
This was a very serious example of the crime of manslaughter which occurred when you non-consensually strangled or choked Karen to death with your own hands during consensual sexual activity in your motor vehicle. In legal terms, the manslaughter was carried out by the unlawful assault and dangerous act of the non-consensual strangling or choking. While that act was deliberate, it was not done with the intention of killing Karen or causing her really serious injury. No accomplice was involved, and you used your bare hands and no ligature or weapon.
It takes a certain amount of time to strangle or choke someone to death using one’s bare hands, and that time was taken. I do not accept the submission of your counsel that the offending was of a short duration. This implies that you brought about Karen’s death in a short time. Although I do not know exactly how long it took, I do not think that the time taken to bring about the death of a person by strangulation or choking using one’s bare hands can fairly be described as short. It would have been a terrifying way for Karen to die, particularly in the circumstances. I would not, however, describe the nature of the offence as sustained. Further, there was no mutilation of Karen’s body, and the offence was not premeditated or planned.
After Karen died, you secretly buried her body beside the Frankston freeway and disposed of her things, you drove the motor vehicle into a tree and had it taken away and crushed, and you gave numerous false accounts of your movements and blamed others for the crime, all to conceal your responsibility, although, after twenty dark months for Karen’s family, you did lead police to where she was, and have pleaded guilty to the crime now charged.
This was a repugnant crime committed by a man against a woman in a position of extreme vulnerability. Karen was a physically small and petite women. You were a physically much larger and stronger man. The motor vehicle was a very confined space in which the disparity of physical strength rendered Karen virtually defenceless. You must have been aware of the dangerous risks involved when strangling or choking a woman during consensual sexual activity, and not only because you have pleaded guilty to Karen’s manslaughter by those means. A former partner of yours had previously complained to you about your aggression in this very situation. During sexual activity with that partner, you would pull her hair really hard and, on many occasions, choked her around the throat. Sometimes she had trouble breathing and would have to punch you to make you stop. As for Karen, in her extremely vulnerable position and in the confines of the motor vehicle from which there was virtually no escape, she was unable to take the kind of defensive action that was apparently open to your former partner. You must have known and were prepared to run the dangerous risks involved in non-consensually strangling or choking Karen during consensual sexual activity. This greatly increases the gravity of your offending and your moral responsibility for Karen’s death, accepting that it was not intended.
The dreadful impact of the crime upon Karen’s family is eloquently conveyed by the contents of the victim impact statement of her mother, Christina Boyle, which I here summarise:
Ms Boyle speaks of her daughter, Karen, who was addicted to drugs. She suffered a sad, miserable and painful existence because of her addiction and the choices she made. Karen would not be in touch with her, her mother, and other family members for long periods of time, forcing them to keep their distance, because they believed that she would be using drugs at that time.
Ms Boyle believes that Karen was ashamed and did not want her to see her like that and she did not want her to see how she was living. Ms Boyle said that Karen knew that if ever she needed help that she would never say no. Karen knew she was loved and that her mother would always be there for her and that she would always help Karen when she could. From the last time that she saw Karen until she went missing, this was the longest period of time that they did not have contact. This was a grieving time for Ms Boyle because Karen was missed, the real Karen, the one who was a happy, funny woman who laughed a lot when not under the influence of using drugs.
The last period that they did not see each other lasted for about seven years, right up until just before Karen went missing. Ms Boyle was thrilled when Karen finally reached out to her through Facebook. This was not long before she was reported missing. She was very happy with the contact and she knew it was only a matter of time before she would ask and try again to get help. They had done it before and it could be done again. She knew that Karen was getting ready to ask for help. Sadly, this was not to be, as not long after reaching out to her mother, Karen went missing, and the opportunity was stolen from her to get clean and well again by her being killed.
She was missing for 20 months and the last person that she saw was Mr Smith. It was 20 months of hell before Karen's body was found. Ms Boyle speaks of what it was like for Karen when she was a child. She tells of what it was like when she went missing, how her mind was on it all the time. She was always wondering and thinking, ‘Where are you … Are you hurt, are you being held captive against your will, are you in pain, are you suffering, are you alive or worse?’ Then to find out that she had died in terrible circumstances and that she had been dead all that time was gut wrenching, heartbreaking, this was ‘the worst experience ever’.
Ms Boyle says that the fact is that Karen was killed, even though Mr Smith has pleaded guilty to manslaughter on the basis that it was done accidentally. Karen, a beloved daughter, is gone from her mother, a cousin and a niece, and the manner of her killing just compounds the horror and pain that all have suffered.
For her, Ms Boyle, to think of Karen, her girl, her only child, being disposed of in the way that she was, just as if she was just garbage, is incomprehensible, it’s painful, it’s horrific and it is in her mind daily. In her view, it was cold hearted and evil. Ms Boyle speaks of not being able to shake it away. She says that for any mother to have this horror, that someone could treat her child in this way, just tossed aside in the dirt as if it was an inconvenience to be gotten rid of, is just the worst pain ever. She wrote: ‘I have to live with that, thinking of her there, all alone’. She was hidden very close to her home. Her young sons will always be scarred badly by this, in particular the youngest boy who adored his mother so much and still talks of her daily.
Ms Boyle speaks of driving past her daughter's shallow grave more than once. She used to say to herself: ‘Where are you, Karen? What has happened to my girl?’ Now she thinks of her there all alone, hidden in plain sight in such an awful way, which is an unbearable pain to bear.
Christina Boyle ends by saying ‘Karen is now finally at peace’.
Turning to your background and circumstances, you were born on 4 July 1967 in Kingston upon Thames in the United Kingdom. You came to this country as a child aged four years with your parents and older brother. You are not an Australian citizen. As a result of your crime, you may be deported back to the United Kingdom, where you have no family or friends, and as an older man. You would be forced to leave your children and friends in Australia. This will hang over your head whilst in custody and after release, which I take into account.
You were aged 47 years at the time of offending. As I have said, you are now aged 51 years. Your mother is alive and in her seventies. Your father is deceased. At the time of the offending, you resided in Langwarrin with your mother. You are concerned about how she will live on her own.
You are the father of two children with your former wife. The children are boys, aged 21 and 18 years respectively. Your youngest son suffers from autism-spectrum disorder and requires extensive care. Your relationship with your former wife, when you were aged from 29 to 40 years, was the most stable and productive of your life and lasted for 11 years. It is a time reflected upon fondly by your former wife and her children. You remain on good terms with them. Both your former wife and your sons have recently been added to your prison visitor list and you are reconnecting with them, which is a very positive sign from the point of view of your rehabilitation.
You were raised by your parents in the Frankston area. They were gainfully employed and had a loving relationship. There are no incidents of family violence or neglect in your background. You were educated at Frankston High School, completing year 11. By all reports, you were a good student and excelled at sport, particularly athletics. After leaving school, you commenced employment with the railways. It was at this time that you developed a range of legal problems through negative peer associations, heavy drinking and experimenting with illicit drugs. Your late father played an important role in saving you from this anti-social and self-destructive lifestyle. You began working with him, a carpenter by trade, installing windows and sliding doors. You are a very talented person mechanically and use these skills to assist family members and friends.
In 1999, your family purchased a golf driving range. You and other family members worked there seven days a week. This amplified your interest in the sport to such a degree that you reduced your handicap to low single figures — good enough for you to win a club championship.
Unfortunately, your father developed prostate and then bone cancer. The family sold the business to assist in his efforts to fight the disease. He died in 2009. You played a pivotal role in caring for your father during the final two years of his illness, conveying him to his medical appointments and being his constant companion, even when he was in palliative care. You experienced considerable grief when your father finally succumbed to cancer. I am not sure that you have fully come to terms with the loss and what it means to you as a surviving middle-aged son.
After your father’s death, you commenced employment as a truck driver and, later, a tow-truck driver. The work was demanding, and you excelled at it. You were still doing this work at the time of the offending, albeit sporadically.
The medical evidence reveals that your health is not good. You suffer from a heart condition that was diagnosed in 2013. In early August of that year, you presented at Frankston Hospital with an anterior cardiac infarction and VF cardiac arrest. You were admitted to the ICU and had a coronary stent inserted. The incident was very serious, and you have been described as ‘very lucky to be here’. You have been prescribed various medications for your conditions and remain on them while in custody. You have experienced another heart attack whilst in custody and have had further stent surgery. There have been five in total.
You have been a long-term user of cannabis and, towards the end, methamphetamines. Your usage was particularly high in the two years prior to the present offending. You have been drug-free since your arrest in 2016. There is no evidence to suggest that, at the time of the offending, you were suffering from a mental disorder.
In relation to remorse, I take into account your plea of guilty, which is the main mitigating consideration, but the degree of your actual remorse is limited and very hard to assess. As a result of admissions made during a police undercover operation, you were arrested on 9 December 2016. The next day you led police to where Karen was buried, which ended the terrible period of uncertainty that was being experienced by her family, for which I give you due credit. But the admissions that you made to the undercover police made your position in relation to that issue untenable, and statements made by you to those operatives betrayed a callous disregard for what you did to Karen. Even after revealing the location of her body, you continued to give false accounts of your involvement in her death. Up to as late as January 2017, you were blaming others for the way that she died. Beyond your admission that Karen died as a result of non-consensual strangling or choking during consensual sexual activity, the actual circumstances and precise cause of her death remain unclear. The pathology is not determinative in this regard. I take into account the letter of apology that you subsequently wrote to Karen’s family, which appears to be sincere. A fair summation is that you have demonstrated some remorse for what you did to Karen, but I am unable to say that you are completely remorseful. I do accept the submission of your counsel that you are not beyond redemption and I have noted the several steps that you have taken to undertake drug rehabilitation, occupational training and other educational programmes whilst on remand, and that you have obtained trusted employment within the prison.
You have a prior criminal record going back to 1986 for mainly street and drug-related offences and have received sentences across the whole gamut of options. In summary, you have been in and out of trouble with the police for a fair portion of your adult life. While none of the offences approach manslaughter in seriousness, you have been convicted for crimes of violence, particularly recklessly causing injury and assault with a weapon in 2006 and again in 2007. In 2012, you received a suspended sentence of imprisonment of 12 months for the offences of assault and committing an indecent act with a child under the age of 16 years.
You have served time on remand within the mainstream section of the Metropolitan Remand Centre and have used it productively. You have completed courses in traffic management, drug and alcohol rehabilitation and managing sleep, among others. I do not have evidence of you undertaking courses or psychological counselling about respecting and avoiding violence against women, which I do not hold against you, but I strongly suggest you explore, particularly in the context of your possible deportation after release. You need to reflect deeply upon these matters. The trusted position in which you have been employed involves emptying bags from airline flights containing headphones and other discarded items. You are a voracious reader of books provided by your mother, and donate them, when finished, to the MRC library. You also assist with tasks such as cleaning and assisting inmates for whom English is a second language.
The most important mitigating consideration in this case is your plea of guilty to the charge of manslaughter. It was not an early guilty plea, but it was made before the trial in this court of the then charge of murder and you must be given due credit for it. The plea has significant utilitarian value because it has saved the community and those involved in the trial the expense, inconvenience and emotional trauma of a contested proceeding. No witness has had to give evidence. None of Karen’s family or friends have had to endure such a proceeding. Judicial and police resources have not been diverted from other business. The plea provided the answer to the question of who killed Karen and in what general circumstances, and therefore brought a measure of emotional closure to Karen’s family and friends, as did your leading police to the location of her body. For the reasons that I have given, the plea of guilty is also some indication of remorse.
I accept your counsel’s submission that the sentence to be imposed should come with a parole period and that it should not be crushing and should not connote destruction of any reasonable expectation of useful life after release. For reasons that I will later give, I do not accept your counsel’s submission that specific deterrence is not a significant sentencing consideration.
You have had positive relationships in your life, including with women, as revealed in character references that have been supplied to the court, including one from your eldest son to which I pay particular regard. He refers to the needs of your other son, his severely disabled younger brother, to missing you and to wanting to rebuild his relationship with you. He says that he ‘can’t imagine my life without my Dad in it’. He says that ‘I go and visit my Dad whenever I can. We are still very close and I love seeing him’. I have taken this reference into account in accepting your counsel’s submission that you are not beyond redemption.
No two cases of manslaughter are precisely the same and this crime throws up a great variety of circumstances that affect the sentencing of the offender. Nonetheless, consistency in sentencing is an important principle. In that connection, I have had regard to sentences of this court in the other cases of manslaughter to which counsel on both sides have referred me and to the sentences for that crime in the period 2011–12 to 2015–16, as described in Sentencing Snapshot No 199 (April 2017) of the Sentencing Advisory Council. I have not been able to obtain information in the period after 2015–16 as it is not currently available.
This was a very serious example of the crime of manslaughter that was committed in circumstances of great aggravation. You abused your physical power as a strong man to strangle or choke (without her consent) a small and petite woman to death during consensual sexual activity in a confined space that rendered her virtually defenceless. You buried her in secret and concealed the whereabouts of her body for twenty months. You took sustained steps to evade responsibility for the crime, including by lying to police and others about your involvement and blaming others for what occurred.
Turning to general and specific deterrence, this is a court of law not morals and I am here to pass sentence for the crime of manslaughter, not to pass judgment on the social practice of ‘rough sex’ or any other form of consensual sexual activity between adults. But it is relevant to the purposes of sentencing as applicable in this case that your interest in strangling or choking women during sexual activity, such as occurred with Karen, is directly related to disrespectful, contemptuous and misogynistic views and opinions that you expressed about women generally and Karen personally after, and by reference to, her death.
Examples include telling a girlfriend in July to August 2015 that you would do to her what you did to Karen. You told your former partner on 21 July 2015 that ‘any other slut who said anything [about Karen’s death] would be buried on top of [Karen] and never be found’. You told her then partner that the police would never find ‘the bitches’ (using the plural) where you buried them. In mid-late 2015, you grabbed a female friend by the throat after she refused to have sex with you and spoke about using women as a ‘piece of meat’ and bragged about strangling and choking a sex slave. On 3 December 2016 and speaking of Karen, you told another female friend that ‘I did this bitch over and she deserved it’. On a number of occasions, you bragged to people about killing Karen, only to withdraw the admission and laugh about it. In October 2016, you told a covert police operative that you liked smaller framed females and putting them in the boot of your car. Speaking of a particular female covert operative, you said that you would like to ‘choke her out and run a train on her’. In the context of a discussion about violence towards females, on 15 November 2016 you explained to a covert operative that doing the ‘Darth Vader’ involved grabbing someone by the throat in a choking motion, which you demonstrated with a grip like action involving the thumb and index finger of your right hand. To another covert operative you described Karen as a ‘thing’ and a ‘creature’. There are other similar statements that I will not repeat. I do not accept your counsel’s submission that this is to be treated as bluff, bluster, trash and rubbish talk. The circumstances of Karen’s killing and the evidence before the court establish otherwise and also demonstrate what this language can lead to. It dehumanises women, blames them for male violence, normalises the abuse of male power and contributes to the creation of circumstances in which a woman may be violently harmed or killed by a man, as occurred in this case.
It is not a crime to have views and opinions and you are not here being sentenced for having or even expressing these views and opinions, totally repugnant that they are. But the circumstances of the offending and the evidence before the court establish that you acted upon these views and opinions when killing Karen, albeit unintentionally, in the particular way that you did. By unlawfully assaulting her and dangerously strangling or choking her without her consent until she was dead, you treated her as the impersonal object of your own male power and sexual pleasure during otherwise mutual and consensual sexual activity. In other words, you used her as a woman for your own ends as a man, and in a manner that resulted in her death. The punishment must be condign when the crime of manslaughter is committed by a man who dangerously uses a woman as a means to his own ends and the appreciable risk of her death actually eventuates. You also treated Karen’s body as a thing to be discarded and concealed, thus depriving her (and her family the comfort) of a decent burial, a point eloquently made by her mother.
No woman and certainly not Karen is a piece of meat, a sex slave to be strangled or choked, someone to be put in a car or run a train on, or a thing or a creature to be non-consensually strangled or choked by a man using his power to obtain sexual pleasure at the appreciable risk of the women’s death. As I have said on other occasions,[1] all women (and Karen in particular) have an inviolable human right to life, to equality — not just the appearance of equality but to real equality — to physical and emotional integrity, to respect for the dignity of their humanity and to personal autonomy, and to freedom from fear of physical or mental harm at the hands of men. Women, supported by their family and friends and the community generally, look as of right to the law for protection from men who would act on disrespectful, contemptuous and misogynistic views and opinions about women in the manner that you have. The views and opinions on which you acted in killing Karen are utterly inconsistent with these rights of women and the standards of equality, respect and decency that are observed in contemporary society which the courts must uphold. You as an individual and others who might likewise offend must be deterred from acting on disrespectful, contemptuous and misogynistic views and opinions about women in that or any other like manner. The crime that you committed must be unequivocally denounced by the court not just because it was an aggravated manslaughter but because it is directly associated with those views and opinions.
[1]DPP v Turner [2017] VSC 358 (23 June 2017) [33]; DPP v Paulino (Sentence) [2017] VSC 794 (21 December 2017) [31].
Therefore, for the offence of manslaughter of Karen Rae, you will be imprisoned for a period of 13 years. I direct that you serve a period of ten years before you become eligible for release on parole.
I declare that your pre-sentence detention is a period of 527 days, not including this day. Pursuant to s 18(1) of the Sentencing Act, I direct that this be entered in the records of the court and reckoned as time already served.
Pursuant to s 6AAA(1) of the Sentencing Act, I also declare that, had you not pleaded guilty to this offence, I would have imposed a sentence of imprisonment of 15 years with a minimum period before becoming eligible for parole of 13 years.
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