R v Harris
[2009] VSC 78
•27 February 2009
58
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1433 of 2008
| THE QUEEN |
| v |
| JODIE ANN HARRIS |
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JUDGE: | OSBORN J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 February 2009 |
DATE OF SENTENCE: | 27 February 2009 |
CASE MAY BE CITED AS: | R v Harris |
MEDIUM NEUTRAL CITATION: | [2009] VSC 78 |
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CRIMINAL LAW – Sentencing – pleas of guilty – Accessory after the fact to manslaughter – two counts of obtaining property by deception – assisted alleged principal offender to dispose of body – fraudulent use of bank account – fraudulent obtaining of mobile phones – drug related offending – undertaking to give true evidence at trial of alleged principal offender – prospects of rehabilitation – total effective sentence three (3) years with a minimum non-parole period of two (2) years – wholly suspended.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C. Beale | Office of Public Prosecutions |
| For the Accused | Mr P. Higham with Ms N. Kaddeche | James Dowsley & Associates |
HIS HONOUR:
Jodie Ann Harris, you have pleaded guilty to one count of accessory after the fact of manslaughter and two counts of obtaining property by deception. The maximum penalty for the first offence is five years' imprisonment. For the second and third offences it is ten years' imprisonment on each.
The conduct that brings you before the court may be summarised as follows:
First, in 2005 you were in a relationship with Lawrence Butler who resided at premises in Whittington near Geelong. Trevor Tascas, the deceased, moved in with Butler in July 2005. After a while Tascas fell behind in his rent payments to Butler and this led to arguments between them which you observed from time to time.
In early October 2005 you went to Butler's home to have a shower. Butler was present. In the bath you noticed a large bag which Butler initially claimed contained stinky fish. There was blood in the bath. You also observed a bloodied sheet in Tascas' bedroom and a bloodied saw. Butler eventually admitted to you that he and Tascas had fought and that Tascas had fallen and banged his head. You observed Butler drag the bag outside, place it in a drum and try to burn the contents. He then put the burnt drum in the boot of Tascas’ car. You observed what appeared to be bits of bone in the burnt drum and on the ground where the burning occurred.
Butler then drove you home in Tascas’ car and disposed of the remains in a place unknown. In the following days believing that Butler had killed Tascas and then dismembered, burnt and disposed of the body, you nonetheless assisted Butler by cleaning up bits of bone and ash left on the ground at his premises. You also travelled interstate subsequently with Butler in Tascas’ car for the purpose of selling Tascas’ car.
Secondly, in late July and early August 2006, you asked your ex‑husband Troy to assist you in obtaining money from Tascas’ account into which Centrelink payments were still being made. Using identification and cards in the name of Tascas’ alias, Trevor John Vanderwell, Troy made several withdrawals totalling $11,180 from Tascas’ account. You and Troy each purchased a car for yourselves with the proceeds.
Thirdly, between 23 May 2008 and 7 July 2008 using false identities you entered into contracts for the acquisition of 15 mobile phones which you then sold to obtain money for drugs.
You ultimately confessed to these matters to police on 9 July 2008 and made a full and frank series of admissions concerning the central circumstances evidencing your criminal conduct.
You now come before this court not only pleading guilty to each offence, but also giving an undertaking that you will give evidence at the trial of Butler on the charge of murder of Tascas. I will come back to these matters shortly, but before I do so it is appropriate to say something more about the circumstances of your offending.
First, I accept that at the time you assisted Butler you were in a relationship with him in which he was dominant and you were substantially compliant with his demands. Further, you were and had been using amphetamines for many years. Butler supplied you with such drugs and in particular supplied amphetamine to you which you used at the time you were confronted with and initially assisted with the disposal of Tascas' body. I accept that it is likely your judgment was impaired by your drug‑taking at that time and that once you commenced on this course it probably appeared to you to have its own logic. I also accept that your offending occurred in the context of a drug affected relationship which helps to explain why you assisted Butler.
The second count with which you are charged is, however, particularly repugnant. You did not simply conceal the death of Tascas, you profited from it by obtaining with your ex‑husband a series of payments from a Westpac bank account into which Tascas' Centrelink payments were directed. The total amount of $11,180 was not insubstantial and you utilised it for lifestyle purposes, namely the purchase of a car. This said, it is apparent again that the choices that you made were made at a time when you were, as your counsel says, a junkie.
The third offence, likewise, was one of a series of offences of dishonesty which you committed in order to support your drug habit and the lifestyle associated with it.
Next as I have said, you have given an undertaking before me to give true evidence at the trial of Butler as envisaged by s 5(2AB) of the Sentencing Act 1991. Although it is not possible to form a fully concluded view on the material before me, it is conceded by the Crown, and I accept, that such evidence will in all probability be of great potential significance to the Crown case. Accordingly, your undertaking is to be given greater weight. Your evidence will describe in circumstantial detail apparently calculated and co‑ordinated actions by Butler shortly after the killing.
As Nettle J observed in R v. Stanbury, the significance of that assistance is to be recognised on public policy grounds, that it is expected to contribute to the apprehension or successful prosecution of other offenders, and because it may be regarded as evidence of remorse or contrition, and because it is known that subsequent incarceration of a known informer is likely to be more onerous. The real utility of the evidence which you are to give on behalf of the Crown is also relevant to the size of the discount to be allowed. See also Malvesi v. R.
I turn then to your personal circumstances.
You have an unhappy early background. Your father suicided when you were an infant. Your mother in turn has suffered from depression and moved through a series of unsatisfactory family relationships during your formative years.
In the course of these early years you suffered sexual abuse as a child from a relative and failed to achieve stable relationships or to progress satisfactorily at school.
In your late teens you commenced a relationship in Geelong with a young man named Joseph who became the father of your son Mitchell who is now aged ten. That relationship was accompanied by a significant level of marijuana use and ended after some four years.
After Mitchell's birth you gave him over substantially to the care of your mother‑in‑law, Mrs Thomson‑Boyd, who continues both to care for him and to support you. The evidence she gave before me today was impressive and frank and is a significant factor bearing on the decision to which I have ultimately come.
After the relationship with Joseph you next married Troy Harris, a relationship which lasted approximately four years and was one in which it appears you were dominated, controlled and to some extent abused. You also continued to use drugs throughout this relationship.
You were then attracted into a new relationship with Butler, the alleged principal offender in respect of the conduct comprising count 1. Butler supplied you with drugs and again it seems that he was both dominant and controlling within the relationship and that you suffered from low self‑esteem and were compliant with him.
Two years ago you had a daughter April conceived as a result of a temporary liaison and born at Dame Phyllis Frost prison. After your release with April she was taken from your custody in her early infancy after you relapsed into drug use. Your mother has since been her primary carer and continues to have custody of her.
Your criminal record comprises a series of convictions for serial charges of dishonesty in October 2002, May 2003, October 2003, January 2006, August 2006, November 2006 and June 2007. The post 2006 offences have each resulted in the imposition of custodial sentences.
Since the middle of last year, however, it appears you have made significant progress. You have been able to stay off drugs, as a series of urine tests and the observations of the witnesses called before me confirm.
You have built a much more productive and active relationship with your son Mitchell and you are seeking to do so with your daughter April.
You have attended the 12 Step program meetings in Geelong.
You have commenced a fresh relationship with a partner who supports you and has come before this court to express a commitment to continuing to do so.
Your personal situation was summarised by the psychologist Ms Lechner, who gave evidence before me in the following terms, which I accept as substantially accurate:
Ms. Harris is beginning to focus on her rehabilitation. Since her apprehension she states that she has completely ceased her use of illicit drugs. She has become more actively involved with her children and reports that she is abiding by all conditions stipulated by the Department of Human Services. Clearly her rehabilitation and prognosis would be further enhanced by both medical review to determine if anti-depressant medication is indicated, and long-term psychotherapy.
Having regard to the above matters and the evidence of Mrs. Thomson-Boyd as to your progress, I am satisfied you have real prospects of rehabilitation, although given your history, the prognosis in this regard must be guarded.
Each of your offences raises serious issues of deterrence, both general and specific. There is a clear public interest in deterring persons from assisting serious offenders to cover up criminal activities and there is a clear public interest in deterring fraud, which ultimately penalises the honest members of the community and poses incidental and unnecessary cost upon them, by reason of the steps that corporations such as the Westpac Bank and Telstra are forced to take in response to fraudulent activity. Further your record makes clear that your case also raises real issues of specific deterrence.
In addition, each of your offences requires the denunciation of the court and, in particular, as I have said I find the profit that you took from Mr Tascas’ death to be particularly repugnant.
Ultimately, I must impose a punishment which is just in all the circumstances of the case. In my view, the matters I have referred to, and the circumstances of the your case generally, require the imposition of a custodial sentence. But, having said that, there are counterbalancing circumstances sufficient to warrant the suspension of that sentence.
In summary the mitigating circumstances which support the conclusion that this court should be merciful and suspend the sentence I would otherwise impose are as follows:
First, your pleas of guilty, including your plea to the first count, given prior to the conviction of the principal offender.
Secondly, your undertaking to give true evidence at the trial of the principal offender.
Thirdly, your age, 29. You are relatively young and in my view, given your history, you are still of an age where it is realistic to accept that there is a real possibility that you will mature and that you will find a new way of life.
Fourthly, the clear public interest in achieving your rehabilitation, if that be practicable, including the particular interest in rehabilitating your role as a mother and enabling you to play a more positive part in the lives of your children, than you would be able to if you were placed in custody.
Fifthly, the nexus between your history of offending, including each of the offences with which I am now concerned, and your drug‑taking which it is apparent has been persistent and pervasive in your life since your late teens.
Sixthly, the evidence of Mrs Thomson‑Boyd and Ms Lechner which points to a substantial progression in your capacity to live without drugs and adopt a more positive, useful, honest and sustainable way of life. I should add, although if you have spent time in the Dame Phyllis Frost Centre it is probably unnecessary for me to add, that many of the women who come before me with a drug related record like yours do not live into their 40s.
Seventhly, the remorse you have expressed for your criminal conduct, which I accept as your counsel has put to me, has been substantial and has been expressed when you took the opportunity to acknowledge fully to the police your involvement in the matters that now bring you before the court.
Eighthly, the concession by the Crown that a custodial sentence of three years' imprisonment is within the appropriate sentencing range open to me and that it may be appropriate to suspend that sentence in whole or in part.
Jodie Ann Harris, I sentence you to two years' imprisonment on count 1. I sentence you to two years' imprisonment on count 2. I sentence you to one year imprisonment on count 3.
I direct that one year of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1. This results in a total effective sentence of three years' imprisonment. I fix a minimum non-parole period of two years.
I direct that the entirety of that sentence be suspended and that the designated period of suspension be a period of three years.
In determining to suspend your sentences in whole I have formed the view that the gravity of your offences requires a term of imprisonment to be imposed in all the circumstances of the case, including your personal circumstances. I have determined to grant the suspension having regard to the factors set out in s 27(1A) of the Sentencing Act 1991 and those considerations fall to be weighed up in the context of the whole of the circumstances of your case which I have previously addressed.
I am required to explain to you the high probability that if you commit any further offence punishable by imprisonment during the term of your suspended sentence you will lose the benefit of the suspension and be subject to imprisonment for the balance of the term I have suspended. In other words, the suspended sentence will hang over your head for the next three years, do you understand that?
PRISONER: Yes.
HIS HONOUR: And for the purposes of s 5(2AB) of the Sentencing Act 1991 I declare that the sentence I have imposed is less severe than would otherwise have been imposed because of the undertaking you have given to assist the Crown in the prosecution of Butler for the offence of the murder of Tascas which he is alleged to have committed I direct there be noted in the court's records the fact the undertaking was given and its details.
I declare pursuant to s 6AAA of the Sentencing Act 1991 that but for the accused's pleas of guilty I would in all the circumstances of this case have imposed a total effective sentence of six years' imprisonment with a minimum non‑parole period of three years.
Now it follows from the sentences I have imposed, Ms Harris, that you are required to attend Geelong Police Station in Mercer Street, Geelong, during the period of four weeks commencing 14 days after sentence. Now, Ms Harris, I spoke to you earlier about this taking of what they call a buccal swab, that's a little swab inside your mouth, DNA testing. You will be given a copy of an order in a moment and counsel or your solicitor will explain to you what that's all about, but it is important that you go down to the police station and go through that procedure, it will only take a moment, but it is one of the consequences of your convictions today, that I have formed the view that that is an appropriate order to make in this case. I previously explained to you that if you didn't consent to the taking of the mouth scraping then the police can take a blood sample from you and use reasonable force for that purpose, but I have no doubt that that would not be necessary.
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