R v Hastings
[2015] VSC 444
•26 August 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0151
| THE QUEEN |
| v |
| SHAREE JANE HASTINGS |
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JUDGE: | T. FORREST J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 20 August 2015 |
DATE OF SENTENCE: | 26 August 2015 |
CASE MAY BE CITED AS: | R v Hastings |
MEDIUM NEUTRAL CITATION: | [2015] VSC 444, First Revision: 8 September 2015; paragraph [14] |
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CRIMINAL LAW – Sentence – Recklessly cause serious injury– Joint criminal enterprise – Use of an offensive weapon –Early plea of guilty – Remorse inferred - Utilitarian discount – Prisoner suffers Post-Traumatic Stress Disorder – Childhood abuse - Sentenced to 4 years’ imprisonment within a minimum period before parole eligibility of 2 years 3 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Grant | Office of Public Prosecutions |
For the Accused | Ms N Karapanagiotidis Ms C Lynch | Matthews White & Associates |
HIS HONOUR:
In 2013 you were living in a house at 4 Unity Court Warburton. You were a friend of Debbie Smith who had lived next door a number 6 with her partner Barrie Robinson. Ms Smith had been involved in a serious motor vehicle accident in August 2013. During her rehabilitation you assisted Mr Robinson with her care. As I understand it, this was a commercial arrangement wherein Mr Robinson provided you with a vehicle to assist you in visiting Ms Smith in hospital rehabilitation centre, and subsequently taking Ms Smith to medical appointments. You were also granted access to Debbie Smith’s debit card bank account to purchase personal items for her and petrol for the car.
Ms Smith was discharged from rehabilitation in late October 2013. She discovered that approximately $4000 was missing from her bank account. She challenged you and you replied “I fucked up”. You offered to make some restitution, although this came to nothing. Mr Robinson, by this time no longer Ms Smith’s partner, agreed to provide Debbie Smith with $4000 to replace the money you had stolen. In Mr Robinson’s mind, this meant your debt to Ms Smith was now transferred to him.
Ms Smith left Victoria in late 2013 and you had no further contact with her, however, you remained in contact with Mr Robinson who continued either to be your next door neighbour or your landlord. On the evidence, I am unable to determine whether a sexual relationship developed between you and Mr Robinson. Mr Robinson told his sister at Christmas 2013 that he was in such a relationship with you. You deny it. Mr Robinson’s current diminished cognitive functioning means that he cannot provide evidence. It is clear that for a period of time you lived at Mr Robinson’s house.
Regardless of whether or not there was a sexual aspect to your relationship with Mr Robinson, acrimony developed between you. Mr Robinson wanted $4000 from you and he wanted what he regarded as his car back. At the start of February 2014 Mr Robinson told you that you must leave his house and leave the car (a blue Ford) at the house. You left but took the Ford with you. On the evening of Monday 3 February Mr Robinson telephoned you on five occasions. It is likely that these calls were part of a concerted effort to secure the return of the Ford. On the morning of 4 February he tried to call you on several further occasions. You spoke to him at 9.15am for about 2 minutes and at 9.50am for about a minute and a half.
At about 10.00am you drove the Ford to Narre Warren, picked up your pregnant daughter Kaitlin, and took her to the doctor. After that you both went to the Middle Hotel Ferntree Gully. You told Kaitlin Hastings that Mr Robinson had “pretty much” held you prisoner and had been raping you. A version of this story was relayed to Kaitlin’s then boyfriend, Karl Ravenhorst. In my view the allegation that you were held captive and repeatedly raped is totally false. I am satisfied that you propagated this false story to persuade Mr Ravenhorst to deal with Mr Robinson. I quote from Mr Ravenhorst’s statement: “They were asking me to do something. To get him. To bash him. I kind of lost my mind, I didn’t like the thought that someone was raping girls.”
You proposed and executed a plan whereby Mr Robinson was lured to an isolated spot where the assault was to occur. You called him and told him the Ford was broken down. You asked for his help. He trusted you and drove to the location at Yellingbo where you had parked the Ford with the bonnet up.
By your plea you admit that you were part of a joint criminal enterprise the object of which was for Mr Ravenhorst to assault Mr Robinson. In pursuit of that object you lured Mr Robinson to the isolated location, drove the Ford to that location and parked it with the bonnet raised so as to reinforce the false ‘broken down’ account. You also admit that your behaviour was reckless. In the context of this case, that means that you admit that whilst you did not specifically intend that Mr Robinson be seriously injured or injured, you were aware that he would probably be seriously injured by Mr Ravenhorst. I will return to this aspect.
You arrived at Yellingbo at about 5.15pm. I accept that you became aware that Ravenhorst had a baseball bat only shortly before this time. You obviously were also aware of the presence of his friend, Mr Francois who was there as back up for Mr Ravenhorst should he need it. You telephoned Mr Robinson at about 5.35pm and spoke for 21 seconds. At about 6.00pm Mr Robinson arrived and parked his vehicle. You and Kaitlin were hiding out of sight. Mr Robinson approached the Ford calling out your name. He saw Ravenhorst and Francois and ran. They chased him. Mr Robinson fell over on the bitumen road and Mr Ravenhorst set about him with the baseball bat. Mr Robinson was savagely beaten and profoundly injured. He sustained depressed fractures to the left parietal and temporal bones of the skull, bruising and swelling to the brain, intra axial contusions and subdural and extradural haematoma. Fragments of bone were embedded in his brain. Additionally he suffered bruising and/or lacerations to his left lower lip, left eyebrow, right chest wall, right hip, left hip, right buttock, left and right hands, arms, legs and feet. His injuries were life threatening and but for expert medical intervention it is likely that he would have died. He was placed in an induced coma, developed pneumonia and was gravely ill for a time. Mr Robinson has ongoing significant neurological problems which include having great difficulty in turning his thoughts into words (expressive dysphasia), cognitive deficiencies and memory loss. He also suffers from depression. His work capacity is very limited, if it exists at all, and his neurological impairments seem to have stabilised.
I observed to your counsel that the scope of your agreement with Mr Ravenhorst involved Mr Robinson being assaulted with the baseball bat. I accept that the protracted savagery which accompanied Mr Ravenhorst’s actions was not part of the agreement and you cannot be punished as if it were. You were aware, however, that it was likely that Mr Robinson would sustain an injury which endangered his life, or was substantial, or protracted. I accept that you were not aware that it was likely Mr Robinson would suffer the catastrophic injuries in fact sustained. You were aware however that it was likely he would be seriously injured and yet you proceeded with this highly criminal enterprise. Ms Karapanagiotidis, in an extremely helpful plea, emphasised that you only became aware of the baseball bat towards the end of the trip to Yellingbo and after Mr Ravenhorst had entered the Ford. It was put on your behalf that whilst the agreement was to assault Mr Robinson, the baseball bat was a late modification or addition to the agreement. I accept this. However, whilst it may have been a late modification it was not last minute. The evidence demonstrates that you were at Yellingbo for approximately half an hour before Mr Robinson arrived. Throughout this time Mr Ravenhorst was also present with his baseball bat.
You abandoned Mr Robinson in a ditch beside the road and fled the scene. You drove Kaitlin, Francois and Ravenhorst to Ravenhorst’s Ferntree Gully unit. You then concocted a story to explain your car’s presence at the scene of the crime. You rang the RACV and claimed that your car had broken down, you went into the bushes to urinate, heard screaming and fled on foot through the countryside. Within a short time you repeated this lie to police in a 000 call, to your car insurance company, and subsequently to the police in the form of a sworn statement. You propagated a different lie to Ravenhorst’s friend Anthony Jobson – you said you were a prisoner in a locked room, held hostage and raped multiple times. Inevitably these lies caught up with you and in April 2014 you were interviewed and charged. In your interview you again sought to lie – but this time you put forward a more refined constellation of lies including the following:
· Robinson had been blackmailing you;
· All you wanted was for Ravenhorst to talk to Mr Robinson. You did not want Mr Robinson assaulted;
· Ravenhorst chose Yellingbo;
· You went to the bush to urinate and heard the altercation;
· You had no idea that anything was to happen to Mr Robinson;
· You wanted to help Mr Robinson after the assault;
· You rang Robinson and tried to warn him not to come because you had ‘a feeling’ something bad was going to happen;
· You made the insurance claim so that you would be provided with a hire car so that you could visit Robinson in hospital;
· You never told Kaitlin that Robinson had been raping you.
I regard this as a serious example of this offence. The victim’s injuries are grave. It is true that you did not intend those specific injuries but you orchestrated this assault, encouraged Ravenhorst to commit it with false allegations against Mr Robinson, and participated in its execution. I am told you offered to plead guilty to this offence before the committal. I shall treat this as an early plea and you are entitled to a utilitarian benefit for it. Had your offer been accepted before the committal the community would have been spared the inconvenience and expense of both the committal and a trial. You are entitled to a significant benefit on sentence for this and I have adjusted the sentence that I will impose accordingly.
I am unable to infer any remorse either from your plea or from any other source. I have identified what I consider to be a pattern of dishonest denial that commenced immediately after Mr Robinson was assaulted. In my view this pattern of dishonesty continued at least up until 31 July 2015 when in an interview with your psychologist you effectively denied any criminal misconduct whatsoever. In a letter to the court you asserted that you were “full of regret and remorse”. This unsigned letter is dated 19 August 2015. Given the history of dishonest denial to which I have referred I am not prepared to accept this assertion of remorse. I do accept that you feel regret at your current predicament, but that is a different thing entirely. I should make it clear however that absence of remorse is an absence of a mitigating factor and not an aggravating factor.
Background
You have effectively no prior convictions. You are now 39 years old and you have travelled a hard road to this court. Between the ages of four and eleven you were sexually abused by your father. You gave evidence at his County Court trial and he was convicted of six counts of incest, three of which related to you. At 14 you were admitted to the care of the Department of Community and Welfare Services. The Children’s Court were satisfied that your physical, mental and emotional development was in jeopardy. I have read redacted documents from your case file. At 14 a child psychiatrist assessed you as being “the victim of life long abuse”. He identified ongoing physical abuse at the hand of your mother, including severe burns when you were aged just two years old. You became a ward of the State until you were four. He noted that you were scapegoated, rejected and physically abused until you ran away. You learned not to trust adults and consequently were difficult to engage in therapy. You had “difficulty in accepting limits/consequences or responsibility for your behaviour”. Placements in foster homes “continually (broke) down”. You said that your father’s sexual abuse “(made you) feel like a slut”. In 1990 Dr Lamb’s opinion was that you were very depressed, suicidal and very angry.
The years that followed were perhaps predictable. At 16 you formed a relationship with Christopher Follett. He became Kaitlin’s father. He was, it seems, heroin dependent, and you told Mr Cummins that you and your daughter Kaitlin were physically abused by him. You left him when Kaitlin was two. You then commenced a relationship with Ronald McKendry, a man 10 years your senior. He is the father of your second child, another daughter now aged 16. Kaitlin seems to have a drug problem, and your second daughter has been the subject of DHHS supervision over the last couple of years. In 2007, you commenced a longer six-year relationship with a man you described to Mr Cummins as a violent alcoholic. This relationship ceased towards the end of 2013.
You have worked intermittently but have also held down jobs for lengthy periods. You worked for four years as a forklift driver and in sales at the Toll group. You then worked for Bunzi Cleaning Supplies however you sustained a knee injury at work three years ago. As I understand it, you were on weekly payments until October 2014 and you may have a common law action for negligence against your previous employer. You have not worked since, although I am told you perform some voluntary work for two charities. References have been tendered on your behalf which speak of your generosity and kindness. Both references suggest that this type of offending is entirely out of character and the absence of any relevant criminal history supports these opinions. I regard your prospects of rehabilitation as good.
Your solicitors have commissioned a psychological report from Mr Cummins, a clinical and forensic psychologist. I observed to your counsel and earlier in these sentencing remarks that the history you gave Mr Cummins amounted, in effect, to a complete denial of any criminal liability. That denial is inconsistent with your plea and I reject it. There is, however, significant evidentiary support for your assertion of years of sexual abuse. I have read the relevant sentencing remarks. It is Mr Cummins’ opinion that you display the sort of psychology frequently seen in a traumatised person. Until a very recent episode of depression (related to your legal predicament) you have never in the past received any ongoing mental health treatment. You are currently receiving counselling from SECASA and are taking anti-depressant and antipsychotic medication. It was Mr Cummins’ opinion that you are currently overwhelmed by the inevitable prison sentence that I must impose.
Mr Cummins stated “(o)n balance, she presents with symptoms sufficient to justify the diagnosis of a Post-Traumatic Stress Disorder which appears to have been triggered by multiple traumas, not least of which has been her history of repeated sexual abuse”. I accept that you have suffered from a PTSD for many years. Mr Cummins offered a tentative hypothesis as to how your mental health at the time could have been relevant to your offending and thus to reduced moral culpability. I regard this hypothesis as speculative and, sensibly in my view, your counsel did not press this aspect. Your mental health is relevant to sentencing in another way however. Mr Cummins anticipates that your mental health will deteriorate when you are imprisoned. I accept this aspect of Mr Cummins opinions. You will likely become more anxious and depressed. This will likely increase the hardship you experience whilst in custody. I have moderated the sentence that I will impose to reflect both the risk that your mental health will deteriorate and the additional hardship that you will suffer in custody as a consequence of your existing mental impairment.
I must give real weight to the aspect of general deterrence. It is clear that the brutality of Ravenhorst’s assault upon Mr Robinson was beyond the scope of your agreement with him. Nevertheless, the fact remains that in order to settle a relatively minor dispute you engaged Ravenhorst to assault Mr Robinson with a baseball bat knowing that serious injury would probably result. This is serious offending, although I accept it is lesser offending than that to which Ravenhorst has pleaded guilty. Your conduct also calls for denunciation and just punishment. Given your state of mental health and your lack of prior convictions I do not think it necessary to give any weight to specific deterrence.
I must also take into account the Victim Impact Statement made by Mr Robinson’s daughter, although insofar as it relates to Mr Robinson’s catastrophic injuries it has more relevance to Mr Ravenhorst’s position than to yours.
As I indicated a moment ago, Ravenhorst’s offending and his prior violent history place him, in my view, in a completely different sentencing category to you. That said, Ravenhorst’s head sentence and minimum term were very substantially reduced by his undertaking to give evidence at your trial. Obviously no such factor relates to you. I refer to this to explain what otherwise would appear to be a disparity between Ravenhorst’s sentence for a far more serious offence and the sentence I am about to impose on you.
In this case there are powerful competing factors. Balancing them as best I can I sentence you as follows:
On the charge of recklessly causing serious injury I sentence you to 4 years’ imprisonment. I direct that you serve a minimum of 2 years 3 months before parole eligibility. There is no presentence detention.
But for your plea of guilty I would have sentenced you to 5 years’ imprisonment with a minimum term of 3 years 3 months.
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