R v Pomeroy
[2002] VSC 179
•20 May 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1449 of 2001
| THE QUEEN |
| v |
| ROBERT SCOTT POMEROY |
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JUDGE: | TEAGUE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 November 2001 | |
DATE OF SENTENCE: | 20 May 2002 | |
CASE MAY BE CITED AS: | R v Robert Scott Pomeroy | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 179 | |
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Criminal Law – Sentencing - Manslaughter and Arson – male gigolo and female client - pressure to neck to heighten sexual pleasure – excessive pressure caused death – aggravation by drug-taking – scene set alight – effective sentence of 7 years – non-parole period of 3 years and 4 months
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr W Morgan-Payler Q.C. | Office of Public Prosecutions |
| For the Accused | Mr D Brustman | Victoria Legal Aid |
HIS HONOUR:
You have pleaded guilty to two offences, manslaughter and arson committed on 26 August 2000. You killed an East Doncaster woman aged 33. In an attempt to cover your tracks, you then lit a fire in her home that caused substantial damage.
During the hearing of the plea, I made an order suppressing publication of certain particulars. That extended to two kinds of subject matter. One was material which might enable the victim to be identified. The other was as to an aspect of your work. I later heard more extensive argument of the issue of suppression. I have handed down now the reasons for my having concluded that suppression is desirable, but not necessary. There will be no continuing order. But I am requesting that the media not publish what the order was calculated to suppress.
For some years up until the year 2000, you were working as a gigolo. That work involved you in a wide range of consensual sexual activities. In July 2000, the victim made a booking for your services, through your agency. You got together at her Doncaster home for what was to prove to be the first of three engagements. On the first occasion, it seems there were no illegal drugs used and that there was sexual activity that was not out of the ordinary. You got together on the second occasion at a hotel. At that venue, you supplied drugs by way of tablets which both you and your client used. The tablets were the illegal drug MDMA, which is commonly known as ecstasy. She talked to you about some of her sexual desires. They included sexual activity in circumstances where she would be vulnerable. You learned from what she said and did that she liked different kinds of sex, and that ecstasy caused her to lose her inhibitions.
The third time you got together was on 26 August 2000. She phoned you to say that she had some ecstasy. You drove to her home. Before doing so, you took some Viagra to improve your sexual performance. You parked your car some distance from your client’s home. Once inside, you talked with her for an hour or so. You smoked some marijuana and had some hash cookies. To the cocktail of Viagra and marijuana was to be added the ecstasy tablets that you were later to take.
She had six ecstasy tablets. None of the six were taken in the first hour. The two of you then took the six, not all at once but progressively until there were none left. Initially you engaged in what you were to describe as average sex. As the drugs came to have a significant effect, you and she engaged in a different kind of sexual activity. You later described that sex as debauched, hardcore, animalistic. You gave quite graphic descriptions of it to the police. I will not go to the details, save as to the crucial aspect. Your client said she wanted to be made to feel vulnerable. She encouraged you to put your hands around her throat. With your hands, you applied more and more pressure. She appeared from what she said and how she acted to want you to continue. You wanted her apparent enjoyment to continue. You were also enjoying what you were doing. You applied the pressure to her throat for a long time. You then saw that her eyes looked different. You saw that her body went limp. You had applied too much pressure and for too long. You had choked her to death.
You attempted by the use of mouth to mouth resuscitation to get her breathing restarted. You thought of ringing the ambulance but you made no call. Instead you chose to take certain actions. You said later that you acted as you did out of panic to cover up. You assaulted her body in various strange ways. You caused injuries to her that were more serious than the injuries that the original choking could have caused. You also tied a piece of school uniform extremely tightly around her neck. You carried her into a room that she had used as a study. There, you posed her on a chair. You watched a pornographic movie. As you watched, you played with your penis. You called a sex phone line. You went about making the home look like it had been ransacked. You had a shower. You walked to your car. You drove it to a position outside your victim’s home. You took two cans of petrol from your car. You splashed the petrol around in three rooms. You ignited the petrol using a cigarette lighter and a tissue. You left by the front door. You disposed of the empty petrol cans. You laid low for more than 24 hours. The police caught up with you. You then co-operated with them.
Your unlawful and dangerous actions caused this death. As I have noted earlier, your victim consented to your engaging in some actions where she was vulnerable. There is ample evidence that she had been an enthusiastic participant and experimenter in sexual activity. Likewise, that she wanted her arousal from that activity to be heightened by the use of ecstasy. Gigolos can be asked to engage in a range of erotic activities calculated to enhance the female client’s excitement. One such activity is to put pressure on the throat of the client. Two hands are used around the throat to restrict blood and airflow, just as is done when a person is throttled to death. What ever the potential benefit from the pressure, it carries the risk of death, and you knew it. Your victim’s consent to your engaging in some actions where she was vulnerable cannot have extended to the kind of violence to which she was ultimately subjected. You had been a gigolo for many years. You knew of the dangers of an excess of violence. You took the risk. You knew of the need to keep a clear head. You knew of the need for you to reason properly, to be able to stop when you had to stop. You materially increased the risk of death by taking a cocktail of drugs. They could not do otherwise than dull your reasoning processes.
I have read the statement prepared by you and tendered at the plea. In it, you stress that you did not intend to cause the death of your victim. I accept that. There is no indication of any animosity between you and your victim. However, you intended to take a cocktail of drugs. You intended to engage in seriously risky sexual activity. You intended to do the acts that caused death. This was a serious example of the serious crime of manslaughter. I do not accept that it should be viewed as being at or near the higher end of the range for that crime. Neither do I accept that it should be viewed as being at or near the lower end.
Your conduct after the killing includes some actions that were bizarre and some that can only merit strong condemnation. Dr Walton described some actions as being an ill-considered attempt, with a simulated murder and burglary, to disguise what had occurred. There are two partial explanations. Panic is one. Another, given that you were still under the influence of drugs, was that you were scarcely likely to be in a position to reason well.
Your setting fire to the house, and your actions thereafter, are less indicative of panic and more indicative of a calculated attempt to avoid detection. Arson is a serious crime. The maximum penalty has been increased twice in recent years. The arson has to be viewed as more than just part of the aggravating circumstances of the killing.
I have read the victim impact statements prepared by the mother, father and sister of the victim. I did so carefully and reflectively, as was appropriate given the time and care obviously taken to prepare them. They reveal grief and anguish and pain of considerable depth and over a considerable period. Theirs has been the special pain of the loss in horrifying circumstances of a family member who was both loved and loving.
You have prior convictions. They cannot be totally disregarded. They reflect a capacity to react inappropriately in stressful situations. On two separate occasions there have been incidents involving the use of drugs. There was an incident in the nature of “road rage”. It appears that you then took hold of another party and caused moderately serious damage to a car.
I have read the reports of Dr Walton, psychiatrist, and Ms Warren, psychologist, and have taken into account the oral testimony of the latter. The reports of Dr Walton and Ms Warren indicate a level of drug use which both as to amount and variety is a cause for concern.
I have read the letter from your sister. Its contents compliment the oral testimony of your mother. Those close to you say that you are essentially a caring and affectionate and altruistic rather than a violent person.
You are now 38 years of age, having were born in April 1964. Your family situation was disturbed from when you were about 5 years of age. Despite the difficulties, you have continued to maintain contact with other family members, and have their support. You had difficulties at school. You have worked at a number of different jobs, and have had a period in military service. You have worked for most of the last 10 years as a gigolo. For the last few years, you have maintained a relationship with a woman in the sex industry.
There is an unusual matter which I do want to record. It merited attention in the reports of Dr Walton and Ms Warren and the evidence of Ms Warren. At times, you act in ways that I and others have found inappropriate and disconcerting. Those ways include how and when you smile. Also included is how and when you make certain comments that are, or appear to be, flippant. On balance, I have come to accept that you do so through nervousness rather than bravado.
There are a number of other mitigating circumstances for me to weigh in your favour. You have pleaded guilty. While on remand, you have undertaken many courses in prison. The evidence on the plea indicates that there are other favourable indications as to rehabilitation. I accept that you are genuinely remorseful given what has been said by Dr Walton and Ms Warren, and what you have said, and your plea of guilty. You co-operated with the police to a substantial extent. Those matters are of particular influence in determining the non-parole period. I have also taken into account, in fixing the non-parole period, the consideration that there has been a regrettable delay in my sentencing you, linked to the need to complete the reasons for the suppression order application ruling handed down this day.
The pre-sentence detention to today is 631 days. I direct that that be entered in the court records. On count 1, manslaughter, I impose a sentence of 6 years imprisonment. On count 2, arson, I impose a sentence of 2 years imprisonment, cumulative as to one year on the 6 years on count 1. The effective sentence is 7 years. I set a non-parole period of 3 years and 4 months.
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