R v Samaras
[2019] VSC 120
•1 March 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0120
| THE QUEEN | |
| v | |
| STEVEN CON SAMARAS | Accused |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 February 2019 |
DATE OF SENTENCE: | 1 March 2019 |
CASE MAY BE CITED AS: | R v Samaras |
MEDIUM NEUTRAL CITATION: | [2019] VSC 120 |
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CRIMINAL LAW – Sentence – Manslaughter – Plea of guilty - Unintentional shooting of domestic partner during course of a struggle – Handgun deliberately discharged by accused in close proximity to deceased – No attempt to seek medical assistance – Avoidance of authorities and disposal of firearm – Extent of remorse – Serious example of crime of manslaughter – 11 years’ imprisonment – Non-parole period of 8 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Diana Piekusis QC | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr Chris Pearson | Greg Thomas Barrister & Solicitor |
HIS HONOUR:
Introduction
Steven Con Samaras, you have pleaded guilty to the manslaughter of Tamara Ann Turner on 6 June 2016[1]. Ms Turner died as a result of being shot by you with a handgun in a caravan which was located in a remote area of the Hattah-Kulkyne National Park in the Mallee area of northern Victoria. The maximum penalty for manslaughter is imprisonment for 20 years. You have also admitted prior convictions contained in a criminal record filed in this matter.
[1]The indictment alleges the crime occurred on 5 or 6 June 2016. Your account, however, was of the shooting having occurred at about 2.00 am on 6 June 2016.
Tamara Ann Turner
Tamara Ann Turner was born on 27 October 1966 in New York, USA, one of five siblings. After completing secondary school she formed a relationship with Chuck Smith and married him, having two children with him, Chuck Smith III, and Natasha King, both of whom attended the plea hearing via video link from the United States, and both of whom made victim impact statements to which I will refer later. After the break up of her marriage with Mr Smith, Ms Turner had other relationships, including, in the year leading up to her departure from the United States, one with a man who owned a firearms dealership in Missouri. Before she moved to Australia, Ms Turner was employed as a cleaner.
At the time of her death, she was 49 years of age.
Your background
You were born on 8 July 1968, and were therefore 47 at the time of the offence, and are now 50 years old.
You were educated in Melbourne to the Year 8 level, after which you helped in the operation of an amusement parlour in Brunswick run by your parents. You spent some years working as a car detailer, but were unemployed and in receipt of a disability pension after suffering an injury in 2015. At the time of the incident, you were largely financially supported by your parents.
Relationship with Ms Turner and lead-up to the incident
You met Ms Turner through Facebook in October 2015. She was living in Missouri at the time. After a short period of communication, running only to hours, you proposed to her. She accepted your proposal and decided to move to Australia to progress the relationship, with the intention of marrying you.
A decision was made that Ms Turner would travel to Australia on 14 December 2015. Before her departure, at your instigation, she sent, or arranged to be sent to you at your parents’ address, four postal packages containing firearms lawfully purchased by her from the firearms dealership owned by her former partner.
You collected Ms Turner at Melbourne Airport on 14 December 2015 and the two of you spent the night at your parents’ home at 17 Spencer Street, Preston. The following day, you rented a unit at 679 Kinglake-Glenburn Road, Kinglake.
By this time, three of the four postal packages containing firearms had been intercepted by Australian Border Force and were the subject of an Australian Federal Police (‘AFP’) investigation. The fourth package, which contained a Bersa brand Firestorm .380 pistol, was not intercepted. This was the pistol with which Ms Turner was later shot by you.
In January 2016, AFP investigators searched the Kinglake and Preston properties. They located firearms and other items including notes relating to the importation of firearms at Preston. You and Ms Turner were charged with the importation and possession of firearms and were bailed to appear at the Melbourne Magistrates’ Court on 28 April 2016.
You and Ms Turner decided to ‘go on the run’. You packed your belongings, purchased a caravan, and travelled around Australia, failing to appear in court on 28 April 2016. Arrest warrants were issued, but you and Ms Turner managed to evade the police.
By about 24 May 2016, you and Ms Turner had arrived at the location in Hattah-Kulkyne National Park in which she later met her death. The caravan was parked on the northern side of Hattah-Robinvale Road off an unmarked track 300 metres east of a stockyard track. You set up camp at this remote and heavily forested location.
6 June 2016; The death of Tamara Turner
There were no witnesses to the events surrounding the death of Ms Turner, and when you later spoke to the police and others about those events, you did not provide a truthful account, as I will turn to shortly.
In much more recent times, once you were in this Court charged with murder, you provided an account through your legal representatives which was accepted by the Crown as the basis of a charge of unlawful and dangerous act manslaughter to which you pleaded guilty. That account was set out in the Summary of Prosecution Opening filed in this matter and tendered on the plea.[2] The account was expanded upon somewhat by your counsel Mr Pearson during the plea hearing. I will sentence you on that agreed basis.
[2]Exhibit A.
You and Ms Turner had been living in the caravan in that remote setting for a couple of weeks leading up to the incident in question. You considered yourselves to be on the run. On the night of the shooting, you and Ms Turner had consumed alcohol, but neither of you was heavily intoxicated. You argued on that night. Indeed, arguments between the two of you were a frequent event.
You were apparently outside the caravan, and Ms Turner was inside the caravan, in possession of the .380 calibre handgun which, for some reason, was always kept in a loaded state. You went inside. The argument continued. You physically assaulted Ms Turner in a manner and for reasons which were not elaborated on. This led to the infliction of the bruising later observed to the right eye of Ms Turner, and possibly to the infliction of some of the other injuries observed, although you raise the prospect some of these may have been caused by undergrowth as Ms Turner moved around the area of your campsite in the days leading up to her death.
Having assaulted Ms Turner, the two of you struggled for possession of the firearm, which you knew to be loaded. You gained possession of the firearm, and in the course of the continuing struggle, while you were in close proximity to Ms Turner, you deliberately pulled the trigger of the firearm, discharging it. You did not aim the firearm at, or deliberately shoot, Ms Turner. There is no suggestion the firearm was defective in any way. The shooting occurred at about 2.00 am on 6 June 2016.
A projectile entered the left hip area of Ms Turner, causing catastrophic injuries which I will relate in detail shortly. On your account, and there were some objective findings in support of this, you sought to provide some treatment to stop the bleeding from the wound. Ms Turner died ‘reasonably shortly’ after the incident, as Mr Pearson described it to me.[3] You made no effort to obtain medical treatment for Ms Turner.
[3]Plea 44.
Aftermath of the shooting
At 6.04am on 6 June 2016, you drove your Jeep Cherokee vehicle into the Hattah Roadhouse located on the Calder Highway. Ms Turner’s body lay across the back seat of the vehicle, which was displaying false number plates. You filled the vehicle with petrol. When you went inside to pay, you asked the cashier where the nearest hospital was, but did not mention the fact Ms Turner was in your vehicle. You were given directions to the Mildura Base Hospital. You drove off in that direction.
At 6.53 am, you arrived at the Mildura Base Hospital. You removed the body of Ms Turner from the rear of your vehicle and placed her on a bench seat outside the Emergency Department. You asked a stranger for help and were directed to go into the Emergency Department. A nurse arriving for her shift saw you placing Ms Turner’s body on the bench and asked you what had happened. You told her, ‘I don’t know. I just found her like this’. This was the first of numerous lies you told about what had led to the death of Ms Turner. The nurse could find no pulse, and went into the hospital and alerted staff.
A number of doctors, nurses and paramedics treated Ms Turner. You told another nurse that you had found her collapsed in a hotel room in Mildura.
At 7.01 am, Ms Turner was transferred inside the hospital. You spoke to reception staff and gave a false name and address, stating you were George Pappas, and that you were staying at the Plaza Motor Inn on Fifteenth Street, Mildura. You stated Ms Turner was visiting from America, and you provided her correct name. You said you were her next of kin, but did not provide a contact number when asked. You were not forthcoming with information which would assist staff. You did not inform any of the staff that Ms Turner had been shot. You presented in a calm manner. After a time, you told staff you would be outside having a smoke. At 7.02 am, you left the hospital without notifying staff, and drove away in the Jeep.
Ms Turner could not be revived and was pronounced dead at 7.10 am. Indeed, one of the treating doctors noted that rigor mortis had already set in. He formed the opinion that Ms Turner had been dead for some hours. Medical staff observed that she had a black eye, bruising to her upper arms and neck, and a puncture wound to her abdomen. In respect of that last matter, I note that when members of the Homicide Squad were initially involved, their understanding was that Ms Turner had died from a knife wound.
Your subsequent movements and statements
At 8.00 am on 6 June 2016, you drove back past the Hattah Roadhouse, returning to the area in which you and Ms Turner had been staying. You packed your belongings into a box trailer, and changed your clothes. You replaced the false number plates on the Jeep with another set of false plates. You attached the trailer to the vehicle, and then drove towards Melbourne.
At 12.24 pm, you stopped at the town of Nullawil. You used a public pay phone to telephone your mother. You told her that Tamara had died. You said that she had been playing with a small gun inside the caravan while you had been outside. You said you heard a bang, and went inside to find her with the gun. You claimed you had taken Ms Turner to the Mildura Hospital straight away, but had left after a couple of minutes because you thought the police would come for you.
By 6.42pm, you were back in the Preston area. At 10.21pm, you used Facebook to send a message to Ms Turner’s daughter, Natasha. The message read, ‘Darling, your mum passed away 6-6-2016 at 2 am, I miss her so much, I’m so sorry (sic) couldn’t do anything, please forgive me’. During a terse exchange which followed, you were asked how Ms Turner had died, and you stated she had dropped a loaded gun in her lap when you were outside. You claimed she had begged you not to take her to hospital. You implied you were going to commit suicide. Further in the exchange, you said that the gun had been sent to Australia by Natasha, and that she should blame herself. You also told Natasha, admittedly in response to a message from her which was critical of you, that Ms Turner had hated both Natasha and her brother Chuck, and that that was why she had left them to come to Australia.
Upon hearing from the United States Embassy in Australia that his mother had died, Chuck Smith made efforts to get in touch with you. You repeatedly hung up on him, until he volunteered in one call that he believed you. You then did speak with him. You told him that you did not kill his mother. You said you had been outside and she was inside a tent at around 2.00 am when you heard a loud bang and ran inside to find she had shot herself. You said she told you she did not want to go to hospital because she was a fugitive and wanted to protect you both. You said you and Ms Turner lay hugging while she said she loved you and wanted you to look after her children and grandchildren. You told Chuck that you were going to kill yourself so that you could be with Ms Turner. You also said that you wanted the police to kill you. You said you still had the gun with which Ms Turner had been shot. He urged you to hand yourself in and you said it was not so easy. He also urged you to give the gun to the police. You said you were trying to protect Natasha, as she had mailed the gun over to Australia. You denied killing Ms Turner. You also said she was alive when you dropped her off at the hospital.
You communicated with Ms Turner’s aunt by Facebook as well. You told her the same dishonest story about Ms Turner having shot herself by accident while you were outside.
I consider that in your behaviour after the shooting of Ms Turner, you behaved in a selfish and quite heartless fashion, which portrayed a lack of real concern for Ms Turner and the effect her death would have on her loved ones. Your concern was only for yourself.
Arrest and interview
On 7 June 2016, a member of the public recognised your vehicle in Robertson Street, Preston, and notified police. At 10.39 am, police observed you get into your Jeep in Robertson Street, with the trailer attached. You drove away. The vehicle was intercepted and you were arrested for murder. You were cautioned and then conveyed to the Preston Police Station for interview.
In a recorded conversation before the formal interview, you claimed that you had been outside when you had heard a bang. You went inside and Ms Turner said to you, ‘Fuck, it got me here’. You said you had no idea where the gun was, as she had buried it. She had been walking around for a good hour after being shot. You put antiseptic on the wound. You said you loved her with all your heart.
After speaking with your solicitor, you were interviewed by members of the Homicide Squad in a formal interview which commenced at 11.41 am on 7 June 2016. Interviews and conversations in which you took part were recorded at the Preston Police Station, and on the way to the Custody Centre on 7 June 2016, and at the Spencer Street Police Complex on 8 June 2016.[4] During these interviews, you maintained and expanded upon the thoroughly dishonest account you had given for the first time at the Mildura Base Hospital about the circumstances surrounding the death of Ms Turner.
[4]Transcript commences depositions 2575.
It is unnecessary for the purposes of this sentence to set out the details of these interviews. They are summarised in the Summary of Prosecution Opening. Suffice to say that you:
· Maintained that you had been outside what you described as a tent when you heard a loud bang and found out Ms Turner had shot herself;
· Claimed that Ms Turner had walked away for some time after she had been shot, during which time she buried the firearm using a shovel;
· Claimed that Ms Turner did not want you to call an ambulance because she did not want to go to gaol;
· Claimed that Ms Turner stopped responding after an hour and a half;
· Denied the existence of a caravan;
· Claimed that you had sustained scratches to your chest, abdomen and back from an altercation with a neighbour and from walking around the camp site. The prosecution takes issue with those contentions;
· Denied any involvement in the shooting of Ms Turner.
Post mortem examination
A post mortem examination was carried out on the body of Ms Turner by Dr Paul Bedford on 7 June 2016. He noted the following external injuries:
· Bluish purple bruising around the right eye affecting both the upper and lower eye lids and covering an area of up to 25 mm;
· A linear abrasion over the left cheek measuring 6 mm by 2 mm;
· Two abrasions on the left lower lip measuring 3 mm and one on the right lower lip measuring 5 mm;
· A parchmented abrasion in the upper left back region, measuring 55 mm by 10 mm;
· A linear abrasion in the upper left lumbar region measuring 15 mm by 2 mm;
· A single ragged gunshot entry wound in the left iliac fossa (hip region).
An internal examination showed the projectile had passed upwards and backwards and to the right side of the body, passing through the aorta, damaging the anterior aspect of the L3 vertebra, passing through the centre of the right kidney, and lacerating the lateral portion of the liver. The projectile came to rest in the area around the 12th right rib. The path from entry point to final resting point of the projectile was approximately 25 cm.
The cause of death was determined to be gunshot wound to the abdomen. Blood loss from a major blood vessel such as the aorta is quite rapid with death likely to occur in a relatively short time frame in the order of minutes. Survival of Ms Turner beyond 10-15 minutes would have been highly unlikely and she would not have had the ability to bury a firearm with a shovel as you claimed.
The projectile was collected from the body of Ms Turner and, on examination by a ballistics expert, was found to be a .380 calibre hard-cast bullet.
Analysis of the fingernail scrapings taken from Ms Turner’s hands during autopsy revealed your DNA underneath the fingernails of both of her hands.
Discovery of the caravan
On 30 June 2016, a National Parks ranger found the caravan in which you and Ms Turner had been staying in the remote location indicated earlier in this sentence. There was a large tree branch across the track on which the caravan was found. The caravan, which was covered by cut off tree branches, was set back 250 metres from the road, and access to it was difficult.
Investigators searched the scene in and around the caravan on 1 July 2016. They found blood in a number of areas, including on multiple tissues, and a number of first aid kits.
An extensive 330 metre by 330 metre grid search of the area surrounding the caravan was carried out by police on 23 July 2016 in an attempt to find the firearm. It was not located.
Investigators recorded the time taken to drive from the Hattah Roadhouse to the Mildura Base Hospital driving at normal speed as being 48 minutes and 51 seconds.
Your background
Your personal background was outlined in a report tendered on the plea from a consultant psychologist, Ian McKinnon. That background was touched on relatively briefly by Mr Pearson during the plea. He described you as being in many ways a limited man, who had received limited education. He said, however, that you are of reasonable intelligence. You are, he submitted, a social introvert. There had been few highs in your life, and one of them had been meeting Tamara Turner.
Your criminal record
As I mentioned earlier, you admitted the prior convictions contained on the criminal record filed in this matter. On my calculation, the record contained at least 15 court appearances covering a wide range of offending including dishonesty, drug, driving, weapons, and some violent offences. Of the latter, there were three convictions for intentionally causing injury, and two for unlawful assault, all recorded at the Melbourne Magistrates’ Court on 18 May 1990. I was told that one of the charges of intentionally causing injury, in respect of which you received a term of three months’ imprisonment that day, concerned an assault by you upon your female partner at the time. You apparently punched her a number of times to the face and head.
Your criminal record reveals that on at least ten separate occasions, you received terms of actual imprisonment or detention in a Youth Justice Centre. Some of those terms of imprisonment were of significant duration.
The last matter on the criminal record was for driving offences in January 2007, by which time you were aged 38. The last term of imprisonment you actually served was imposed in 1999 when you were 31.
Mr Pearson emphasised the relatively low level of many of the matters contained in the criminal record, the fact that there were few matters of violence, and the long gap between the last matter on the record and your current offending.
I take account of those matters, but as I pointed out to your counsel, the fact is that yours is a not-insignificant criminal history, spanning your life between the ages of 17 and 38, and containing criminal offending which has warranted many terms of imprisonment. I think the overall record is a relevant matter to consider when I am assessing your prospects of rehabilitation, and the need for specific deterrence in this case.
The sentence of Judge Quin for the firearms importation
In addition to the matters contained in the criminal record, on 15 December 2017, having pleaded guilty, you were sentenced for your importation of the firearms referred to earlier in this sentence, and for some other offences set out in the sentence of Judge Quin, which was provided to me. You received a total effective sentence of three years and seven months, with a non-parole period of two years. A declaration was made in respect of 555 days of pre-sentence detention. That amounted to all of the time you were in custody after your arrest by the police on 7 June 2016. The non-parole period lapsed in June of 2018. I have been told that the head sentence, which was effectively the sentence on the importation matter, a Commonwealth offence, will end on 6 January 2020.
The non-parole period having already expired, there is no need for a new non-parole period to be fixed under section 14 of the Sentencing Act 1991 (‘the Act’).
Counsel on both sides invited me to pass a head sentence and a non-parole period in this case, making none of the sentence cumulative upon your current sentence, but taking into account the principle of totality. The sentence, so it was submitted, and I accept, must reflect the fact that you have already been in custody since 7 June 2016, a period in excess of two years and eight months.
In arriving at the appropriate sentence in this case, I have taken into account the principle of totality, as I am required to do. In arriving at the appropriate sentence to pass on you for this crime of manslaughter, I have had regard to the fact that you have been continuously in custody since the day of your arrest on 7 June 2016. All of that time, as a result of the sentence of Judge Quin last year, and the declaration she made as to pre-sentence detention, was for other offending which occurred at a time broadly similar to the time of the manslaughter.
As far as the offences for which you were sentenced by Judge Quin are concerned, you have been punished for these, and no aspect of the sentence I will pass amounts to any further punishment for those offences. In particular, I note that I have not treated, as being an aggravating circumstance, the fact that the killing of Ms Turner was carried out with an unlawfully imported firearm.
Your plea of guilty and the issue of remorse
You were charged with the crime of murder a year or so after your arrest on 7 June 2016. You were committed for trial in this Court on 2 May 2018 following a contested committal hearing. A trial was set down to proceed in Mildura on 24 September 2018. In August 2018, for the first time, your legal representatives embarked on discussions with the Crown with a view to resolving the case as a plea of guilty to manslaughter. An offer was accepted and on 29 August 2018, you were arraigned before me on a charge manslaughter. You pleaded guilty.
Following that, you dispensed with your lawyers and communicated to the Court an intention to seek leave to withdraw your plea of guilty, and proceed to trial on the charge of murder. That remained your position for a period of time, which necessitated a number of mentions in which the course to be followed was discussed. In the end, you indicated through your new legal representatives that you would abide by the plea of guilty.
Before me, Mr Pearson sought to rely on your plea of guilty in a number of ways. He said:
That plea of guilty can be taken into account both as being an expression of remorse by Mr Samaras for the commission of the offence, certainly that he has accepted his responsibility for the offending and that his plea of guilty has been pragmatic in the sense that he has saved the time and the expense of a criminal trial.[5]
[5]Plea 61.
The law requires me to take into account your plea of guilty and the time at which it was entered. In your case, you did not enter your plea of guilty until the month before the trial was to commence, by which time more than 26 months had elapsed since your unlawful killing of Ms Turner. Throughout that time, you had, in public at least, maintained your dishonest account that you had not been involved in the killing.
Having said that, there is no question that your plea of guilty is still an important matter in your favour, in spite of its late occurrence. You are entitled to a discount in the sentence you receive for what is sometimes called the utilitarian benefit of your plea of guilty.
Insofar as your counsel submitted that your plea of guilty shows that you have accepted responsibility for your offending, I accept that.
However, in respect of Mr Pearson’s contention that your plea of guilty can be taken into account as being an expression of remorse by you, that submission was based, in my view, on somewhat shaky ground.
Your conduct, in the minutes, hours, days, and indeed, extending for over two years, after your killing of Ms Turner, was not reflective of any remorse or regret for your crime. Rather, as I have stated already, your early actions in particular bespoke anything other than remorse. These include your failure to seek immediate help for Ms Turner after you had shot her, your failure to tell the truth to hospital staff in Mildura and subsequent flight from the hospital, your lies and somewhat heartless conduct towards family members of Ms Turner, your continuing efforts to evade capture, your disposal of the firearm, and your very dishonest account to the police.
In respect of your disposal of the firearm, you gave, through your counsel, an account in this Court of having thrown the gun from the car into some bushes on the side of the road while driving to the Mildura Base Hospital. That somewhat unlikely sounding account conflicted with your claim to Chuck Smith when in contact with him that you still had the firearm, and were going to shoot yourself or the police with the gun.
I do not need to decide the true position in respect of the gun. On any view, you must have disposed of it, and you never provided any information to the police which would enable it to be located.
Your selfish behaviour as summarised above revealed only a concern for yourself. As for your dishonest account about how Ms Turner came to be shot and killed, you maintained it for over two years.
That is not to say that by the time of your plea of guilty, you may not have reached a position of being somewhat remorseful for what you had done. Indeed, you did make some expressions of remorse when you spoke to the psychologist on 7 September 2018, about a week after you pleaded guilty.
Ms Piekusis for the Crown submitted that there was some limited expression of remorse by you as manifested by your plea of guilty. I am prepared to make a finding on that basis, but I point out that this limited remorse was a long time coming.
As mentioned already, I take into account in your favour your plea of guilty. You will receive a reduction in sentence accordingly, tempered by the fact that the plea of guilty was a late one, and not one which would entitle the full reduction to be allowed to you for what are known as the subjective criteria of your plea of guilty.[6]
[6]Phillips v The Queen (2012) 37 VR 594 [36] (Redlich JA and Curtain AJA).
Nature and gravity of the offence and your culpability and degree of responsibility
There is no question that your offence was a very serious one. Your counsel described the offending as ‘grave’.[7] That is an apt description. You brought about the death of your domestic partner, a person who was entitled to look to you for protection, but who, on the morning of her death, you treated with violence and a lack of regard for her wellbeing. You physically assaulted her, and having taken possession of a handgun which you knew to be loaded, and whilst still in the course of a physical struggle with her in the confined space of the caravan, you deliberately fired the gun while it, and you, were in close proximity to Ms Turner. At the relevant time, you were not adversely affected by drugs or alcohol.
[7]Plea 58.
Your plea of guilty to manslaughter indicates your acceptance of the existence of all of the elements of that crime, one of them being that a reasonable person in your position at the time would have realised that your unlawful conduct in firing that gun would expose Ms Turner to an appreciable risk of serious injury. The dangers implicit in the handling, and more particularly, the discharge of firearms, are of a high degree and very obvious. There is no reason to doubt, in the circumstances, that you were well aware of the dangers here.
Having shot Ms Turner, as I have indicated already, your failure to seek immediate assistance for her betrayed a disturbing lack of concern and regard for her, which is at odds with your claim of having loved her. Mr Pearson sought to explain your conduct on the basis that having shot Ms Turner, you did not realise the full horror of that, that you endeavoured to assist her in the way that you did, and that after she died, you panicked. He submitted that you did not do the things that a rational human being, thinking clearly, would have done, and that you sat around, contemplating your own future, and indeed, contemplating suicide.
I reject any claim that you were not fully aware of the gravity of the situation from the moment you shot Ms Turner. You knew that you had shot your partner in the abdomen, and there is no doubt that from the first moments after that occurred, it would have been perfectly obvious to you that she was seriously injured and required urgent medical assistance. You made no attempt to seek such assistance, and your explanation for that fact was contained in the submissions made by your counsel. Your concerns were solely for yourself.
Ms Piekusis submitted that your moral culpability for this crime is high. That is undoubtedly correct.
Your mental condition
Mr Pearson acknowledged during the plea that you are not cognitively impaired or psychiatrically unwell. He tendered on your behalf the report of Mr McKinnon to which I have already referred. That report indicated that you are of normal intelligence and cognitive functioning. It also indicated that you suffer from a Mixed Anxiety and Depression Disorder of moderate to severe intensity. That disorder is apparently of long standing, and has been exacerbated by events surrounding the death of Ms Turner. Mr McKinnon was of the view, however, that this condition does not appear to have been a significant contributing factor to your offending.
None of the principles in Verdins[8] was relied upon in your case.
[8]R v Verdins (2007) 16 VR 269.
Prospects of rehabilitation
Mr Pearson urged upon me a conclusion that your prospects of rehabilitation are ‘at least reasonable’.[9] Judge Quin, when she sentenced you for the firearms matters less than 15 months ago, and apparently acting on a submission which had been made by your counsel[10] during the plea, described your rehabilitation prospects as being ‘guarded’. Ms Piekusis submitted the conclusion of Judge Quin was to be preferred.
[9]Plea 69.
[10]Different counsel appeared for you in that matter.
In my view, the conclusion reached by Judge Quin would be the most favourable conclusion possible to reach on the matter of your prospects of rehabilitation.
Victim impact statements
Five victim impact statements were made to the Court. These were by the daughter, the son, two of the sisters, and the aunt, of Ms Turner. Mr Pearson at the commencement of the plea in mitigation, described these as ‘completely heartbreaking accounts of how much Tamara Turner was loved by her family and how sadly she is now missed’.[11] That is a very fair and apt description.
[11]Plea 35.
Ms Piekusis also spoke in powerful terms about the force and eloquence of the victim impact statements.
The tragic consequences of your crime upon the family of Ms Turner, made all the more sad by the fact she died in a location far away from her home and her loved ones, cannot be overstated. I take the victim impact statements into account as I am required to do under the Act.[12]
[12]Sentencing Act 1991 s 5(2)(daa)–(db).
Current sentencing practices and comparable cases
One of the matters I am required by law to take into account in arriving at a proper sentence is current sentencing practices.[13] To assist in the understanding of these, Ms Piekusis provided to the Court a number of sentencing decisions of the Court of Appeal in respect of cases where offenders killed people, whether domestic partners or otherwise, with the use of firearms, and were sentenced for manslaughter. The most recent of these cases was Director of Public Prosecutions v Osborn (‘Osborn’).[14] I have read and taken into account that decision, and the other cases referred to in Osborn.
[13]Ibid s 5(2)(b).
[14][2018] VSCA 207.
Where comparable cases are concerned, it must be remembered that no sentence passed in any other case amounts to a precedent for the sentence I must pass on you. At best, sentences in so-called comparable cases may provide a general guide or impression of the appropriate range.
Although all of the cases drawn to my attention share, in common with your case, the fact that the mechanism of death was the discharge of a firearm, differences abound. For example, in Osborn itself, a case concerning an unsuccessful Director’s Appeal against the leniency of a sentence of 9 years for manslaughter, the offender was sentenced on the basis that whilst he had pointed a handgun at the forehead of his partner from very close range, he pulled the trigger neither intending, nor even contemplating, that it would discharge. Having shot his partner, the offender immediately contacted 000 and sought assistance. The sentencing judge found that there was genuine remorse on the part of the offender. The differences with this case are stark.
I note also, as was confirmed quite recently by the Court of Appeal in Vincec v The Queen,[15] that sentences for manslaughter have increased significantly in recent years.
[15][2018] VSCA 18 [56]-[58].
Totality
As indicated earlier, in sentencing you, I have taken account of the principle of totality. Bearing in mind the sentence passed upon you by Judge Quin in the County Court last year, and its consequences, I have sought to ensure, in arriving at the appropriate sentence today, that the total period of time ordered to be served for the totality of your offending, is just and appropriate.
Important sentencing considerations
The only purposes for which sentences may be imposed are those set out in section 5(1) of the Act. To my mind, the important sentencing considerations in your case are just punishment, general and specific deterrence, denunciation, and protection of the community. The sentence I pass must make it perfectly clear that the Court deplores the use of firearms, all the more so against women in a setting of domestic violence. The death of Tamara Turner is a tragedy which was entirely avoidable. The sentence of this Court should bring it clearly home to any person in our community who might be minded to inflict violence of any sort against a domestic partner, particularly with the use of a weapon, that such conduct will be met with strong punishment. Also, the sentence must seek to deter you from any future offending. In that way, it is also hoped that the sentence I will pass will serve to protect the community from you in future.
I have not lost sight of the interest of rehabilitation. As I indicated, your prospects of rehabilitation are not strong. Having said that, I take them into account, and I have certainly sought to avoid passing a sentence that could in any way be described as a crushing one, in light of your age, your personal circumstances, and the serious crime for which I sentence you.
Sentence
For the manslaughter of Tamara Ann Turner, you are sentenced to be imprisoned for 11 years. I fix a period of 8 years during which you will not be eligible to be released on parole.
By operation of law,[16] the sentence I have passed commences today and will be served concurrently with the sentence you are still serving which was passed by Judge Quin.
[16]Sentencing Act 1991 ss 16(1) and 17(1).
In this case, there is no declaration of pre-sentence detention.
I indicate pursuant to section 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have imposed a sentence of 13 years’ imprisonment with a non-parole period of 10 years.
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