R v Smith
[2014] VSC 245
•26 May 2014
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. S CR 2013 0040
| THE QUEEN |
| v |
| TANIA LEIGH SMITH |
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JUDGE: | BEACH JA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 May 2014 | |
DATE OF SENTENCE: | 26 May 2014 | |
CASE MAY BE CITED AS: | R v Smith | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 245 | |
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CRIMINAL LAW - Sentencing – Intentionally cause serious injury – Unlawful imprisonment – Theft – Joint criminal enterprise – Torturing victim.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S Borg | Office of Public Prosecutions |
| For the Accused | Ms M Casey | Lethbridges |
HIS HONOUR:
Tania Leigh Smith, you have pleaded guilty to one charge of intentionally causing serious injury, one charge of unlawful imprisonment and one charge of theft. The maximum term of imprisonment for intentionally causing serious injury is 20 years. The maximum term of imprisonment for unlawful imprisonment is 10 years. The maximum term of imprisonment for theft is 10 years.
The charges to which you have pleaded guilty are as follows:
(a)Charge 1: Between 9 October 2012 and 10 October 2012, you unlawfully imprisoned Cameron Bradley Gable and detained him against his will.
(b)Charge 2: Between 9 October 2012 and 10 October 2012, without lawful excuse, you intentionally caused serious injury to Mr Gable.
(c)Charge 3: Between 9 October 2012 and 10 October 2012, you stole a wallet containing personal documents and a mobile phone belonging to Mr Gable.
On the evening of 9 October 2012, your three co-accused (Joshua Bryant-Dawson, Phat Tuan Truong and Jason Walkley), together with Mr Gable, were present at your flat. At about 9.00pm, Mr Gable asked you if he could sleep at the flat. He was permitted by you to go to a bedroom and sleep. While Mr Gable was in the bedroom, there was discussion to the effect that Mr Gable owed you or your co-accused money for drugs. Two of your co-accused went into the room where Mr Gable was sleeping, and a short time later Mr Gable ran out and ran into another room. Mr Gable was grabbed and eventually taken to the kitchen. He was then tied up. Mr Gable’s pants and underpants were removed. Mr Gable was then tortured throughout the night and into the early hours of 10 October 2012, until about 5.00am.
This torture involved your co-accused:
(a)poking Mr Gable with a knife and making little slices on his body and hitting him;
(b)carving the word “pedo” on Mr Gable’s forehead;
(c)cutting Mr Gable’s cheeks;
(d)placing scissors into Mr Gable’s mouth with one blade of the scissors on the inside and one on the outside, and then cutting Mr Gable’s cheek with the scissors;
(e)cutting the top of Mr Gable’s right nipple with a razorblade and then attempting to tear off Mr Gable’s right nipple;
(f)cutting Mr Gable’s right ear with a razorblade;
(g)putting cigarette butts out on Mr Gable’s chest and arms;
(h)smashing a vase on Mr Gable’s head; and
(i)stabbing Mr Gable.
Other acts performed by your co-accused included carving the words “dog” and “rat” onto Mr Gable’s back, kicking Mr Gable in the head and burning him with an ice pipe on a number of occasions. Mr Gable was also hit over the toes with a screwdriver. Additionally, during what must have been a terrifying and extremely painful ordeal, there were attempts made to cut open Mr Gable’s nostrils.
Your involvement in the torture of Mr Gable included kicking him, and stabbing him with a serrated steak knife in his left thigh. Stabbing Mr Gable with the knife caused a deep wound and significant blood loss. While the Crown case is that you also used an aerosol can to set Mr Gable’s hair on fire, you deny this and say that this was done by one of your co-accused. In the circumstances, I am not prepared to conclude beyond reasonable doubt that it was you who set Mr Gable’s hair alight. However, it was an act committed as part of the joint criminal enterprise for which you, like your co-accused, are liable.
At one stage during the course of the night of 9 October, Mr Gable managed to run to the front door of the flat. However, he was caught and brought back. In the course of catching and restraining Mr Gable, Mr Gable was choked until he lost consciousness. He thought he was going to die. When Mr Gable awoke, he was back in the kitchen. The torture continued.
On the night in question, you participated in a joint criminal enterprise with each of your co-accused. During the course of the plea made on your behalf this morning, your counsel correctly accepted that this made you liable for the various injuries inflicted on Mr Gable in the hours during which he was tortured.
During the course of the hours of torture to which Mr Gable was subjected, you and your three co-accused took Mr Gable’s wallet and telephone. Ultimately, Mr Gable was released, but his wallet and telephone were not returned to him. The theft of Mr Gable’s wallet and telephone constitutes charge three.
While the acute effects of his physical injuries may have now healed, Mr Gable’s physical scarring remains. Additionally, as I said when I sentenced your co-accused,[1] I have no doubt that Mr Gable has been mentally scarred by his ordeal. In his victim impact statement, Mr Gable states:
My personality has been changed dramatically. I have a loss of confidence. I have agoraphobia whereby I don’t go out sometimes for days. I have recurring nightmares of that night which leave me extremely anxious so that I don’t want to go back to sleep yet I don’t want to get up either. I wake up feeling sick and sweating most mornings.
The experience of being choked to the point of blacking out had a huge impact on me. I thought at the last stages of that moment that I had actually died. The level of aggression shown, told me that I wasn’t going to be leaving alive. That terrified me then and still does to this day. Then to wake tied up on the floor, with a man proceeding to slice me in various different areas of my body leaving permanent scars, was something that I myself could never do to another and thus was unthinkable.
Then later in the early hours of the morning to be stabbed all the way through my left leg with a steak knife, I saw a lot of blood shooting from my leg wound and within minutes passed out. Over the next few hours I was passing out frequently and all I could think was that once these people had taken their offence to this level I would not survive this. These permanent scars I have now constantly remind me of the event and the way I look to persons in public.
[1]R v Bryant-Dawson & Ors [2013] VSC 331.
Ms Smith you were 37 years of age at the time of this offending. You have had eight children, some by different fathers. All of your children have been removed by the Department of Human Services.
I have read the reports of Mr Martin Jackson (consultant clinical neuropsychologist), Dr Danny Sullivan (consultant psychiatrist) and Dr Jennifer McCarthy (clinical and forensic psychologist). I accept the material set out in those reports. You have never held a job. You were pulled out of school when you were in grade 6. You have not had any additional education. The reports to which I have referred disclose that, over your life, you have been subjected to a significant history of violence and sexual assaults. Your upbringing was, to say the least, a deprived and difficult one. The reports also disclose the circumstances of the violent shooting death of your father, in your presence, when you were eleven, and then the later suicide of the sibling who was responsible.
You have a history of substance abuse and possible head injuries from a motor vehicle accident and domestic violence, as well as a history of mental health issues. You meet the criteria for a major depressive disorder as well as a substance abuse disorder. You have a clinically significant cognitive impairment, having been assessed at one stage as having a full scale IQ of 54 on cognitive testing (although Dr Sullivan thinks that your adaptive functioning appears to be higher than this, and that it is likely that you are functioning in the mild range of intellectual disability).
I accept that the conditions to which I have just referred reduce, to some extent, your moral culpability in relation to the offending for which you fall to be sentenced. I also accept that the existence of the conditions to which I have just referred is likely to result in imprisonment weighing more heavily on you than it would on a person in normal mental health with a normal intellect. Additionally, to some extent the conditions from which you have suffered, and continue to suffer, moderate the sentencing considerations of general deterrence and specific deterrence.
Your criminal history discloses court appearances and convictions on various dates since 1993. Some of your more recent convictions include possessing a controlled weapon without an excuse, robbery and assault. These convictions make it difficult to accept your counsel’s submission that you are not a violent person.
You indicated an intention to plead guilty, and pleaded guilty, prior to a contested committal. In the circumstances of this case, I accept that you pleaded guilty at the earliest reasonable opportunity. By your plea of guilty, you have shown remorse. That said, while your criminal history is not as significant as two of your co-accused, it is not completely insignificant. Further, the offending that you engaged in on 9 and 10 October 2012 was not of a quick spur of the moment nature – but rather was protracted over some hours.
I have looked carefully at the prospects of rehabilitation for you. While the level of remorse that you have shown is suggestive of corresponding prospects of rehabilitation, your past criminal history does not fill one with confidence so far as these prospects of rehabilitation are concerned. However, the material tendered on the plea today discloses real efforts being made by you in custody to rehabilitate yourself. Additionally, the Crown accepts that the remorse you have expressed in letters to the Court and the victim is genuine - and I propose to sentence you on that basis.
While, to some extent, your disgraceful conduct (and that of each of your co-accused) may be explained by the consumption of varying levels of alcohol or drugs on the night, this, as your counsel correctly conceded, does not provide any legitimate excuse for your conduct. As your counsel rightly conceded during the plea on your behalf, this was serious and disgraceful criminal conduct. It is no great answer on your behalf to say that the actual physical acts performed by you were less than those performed by your co-accused. You were as much a willing participant in the totality of the events the subject of these charges as they were.
As well as the maximum sentence and the matters referred to in s 5(2) of the Sentencing Act, the Court must consider the purposes for which sentences may be imposed, being:
(a) to punish the offender to an extent and in a manner which is just in all the circumstances;
(b) to deter the offender or other persons from committing offences of the same or a similar character (although, as I have said, these considerations are moderated in your case);
(c) to establish conditions within which it is considered by the Court that the rehabilitation of the offender may be facilitated;
(d) to manifest the denunciation by the Court of the type of conduct in which the offender engaged; and
(e) to protect the community from the offender.[2]
[2]Section 5(1) of the Sentencing Act requires these purposes to be considered individually, or if relevant, in combination.
Taking all of the matters to which I have referred into account, and having due regard to the principles of parsimony and proportionality, I will impose the following sentences.
On the charge of intentionally causing serious injury to Mr Gable (charge 2), I sentence you to a term of imprisonment of six years and nine months. On the charge of unlawfully imprisoning Mr Gable (charge 1), I sentence you to a term of imprisonment of 19 months. On the charge of theft (charge 3), I sentence you to a term of imprisonment of six months. I will order ten months of the 19 month sentence and two months of the six month sentence to be served cumulatively with each other and cumulatively with the sentence on charge 2. This makes a total effective sentence of imprisonment of seven years and nine months. I fix a non-parole period of four years and nine months. I am not able today to fix the amount of pre-sentence detention under s 18(4) of the Sentencing Act. By reason of extraneous matters, that calculation cannot be performed today. Instead, I will adjourn the further delivery of this sentence to a date to be fixed once the pre-sentence detention can be calculated. At that time I will make the declaration required by s 18(4) of the Sentencing Act.
Pursuant to s 6AAA of the Sentencing Act, if you had not pleaded guilty, I would have sentenced you to a total effective sentence of imprisonment for ten years with a non-parole period of seven years.
Finally, I will make the disposal order sought by the prosecution.
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