R v Smith
[2007] VSC 369
•19 September 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No.1563 of 2006
| THE QUEEN |
| v |
| BENJAMIN ROSS SMITH |
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JUDGE: | Curtain J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 September 2007 | |
DATE OF SENTENCE: | 19 September 2007 | |
CASE MAY BE CITED AS: | R v. Smith | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 369 | |
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Criminal Law – Sentence – Acquitted of murder – Guilty verdict to Assist Offender – parity and disparity of sentences with co-offenders
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K. Gilligan | Office of Public Prosecutions |
| For the Accused | Mr Cash | Galbally & O’Bryan |
HER HONOUR:
Benjamin Ross Smith, you were acquitted by jury verdict of one count of murder and convicted on the alternative count of assisting an offender.
On 17 September 2005 Brian Raymond Young met his deaq`th at the flat you were then living in at 269 Malvern Road, South Yarra. How he met his death and who is responsible for it is not known to the court. What is known is that on the following day, 18 September, you borrowed your mother's car, travelling to Ballarat to get it and upon returning to your flat in South Yarra you and your co-offender, having placed Mr Young's body in a suitcase, then in the company of Richardson and Robert Saunders, removed that suitcase from the flat, taking it in the boot of the car to Flemington and then transporting the body to the You Yangs National Park where you assisted your co-offenders in digging a grave and burying the suitcase with the body in it.
On 24 September 2005 in the company of Richardson you hired a carpet cleaning machine and purchased carpet cleaning products from the Prahran Safeway, presumably to clean the carpet and the flat generally, for when the police attended at the flat on 8 December 2005 the carpet in the lounge room had been removed and Luminol testing of the walls of the lounge room revealed apparent blood stains not visible to the naked eye and signs of abrasions and or scrubbing marks consistent with cleaning.
I propose to sentence you on the basis that this was the limit of your involvement, consistent with the jury's verdict.
You are 29 years old and have no prior convictions, although on 7 February 2006 at the Frankston Magistrates' Court you were convicted of, inter alia, intentionally damaging property, making a threat to kill and breach of an intervention order, for which you received a sentence of three months imprisonment wholly suspended. Although you were on remand at the time you were convicted, you nonetheless successfully completed that sentence. Those offences arose out of the break up of a relationship which produced your now three year old daughter, Storm.
You are the only child of your mother's second marriage. You have four, half siblings who are considerably older. By reason of this age difference it is said that you have had little to do with them. Your parents separated when you were aged 13 and you and your mother moved from Bendigo to Ballarat. You were educated at Ballarat Grammar but left school during Year 10 at the age of 15. You left home at the same time and briefly lived with your father. This did not work out and between 1992 and 1996 you lived an itinerant lifestyle, living for a time on the streets.
In 1996 you commenced studying for a Bachelor of Arts degree at Flinders University in South Australia. You completed that degree with Honours in 2001 and returned to Melbourne. You again lived with your father but during this time he died, which you found especially unsettling as your relationship with him, it is said, was beginning to improve. At that time you had been working in the security industry and you continued in that field until you were suspended as a result of being charged with the Magistrates' Court offences. You have not worked since and it is said that you were not motivated to do so because of your break up with your then girlfriend, the mother of your daughter.
As at September 2005 you had been in a relationship with your co-offender, Lisa Richardson, for some nine months. You and she had been boarding in Grey Street, St Kilda and then in July 2005 you leased the flat in South Yarra where the killing occurred. It is said that you were smitten with Richardson throughout this period and you still regard the two of you as being in a relationship. You were not using drugs at the time the killing occurred and it is not put that you were suffering under any psychological or psychiatric impediment at the time.
The maximum penalty for assisting an offender is 20 years’ imprisonment. Clearly it is a serious offence and in my view this is a serious example of it. You obtained your mother's car, traveling to Ballarat in order to get it, so as to remove the body of Mr Young from the flat, and you used that car to transport Mr Young's body to the You Yang's National Park where he was buried, thus enabling you to remove the body from the crime scene and to remove it a considerable distance to a remote location.
You also assisted in the burial of the body which by reason of it's concealment in such a remote and nondescript location, it's detection was highly unlikely were it not for the cooperation of your co-offender, Robert Saunders.
Victim impact statements were tendered on behalf of Mr Young's mother, brother and sister. They each speak of their distress and sadness at the lost of Brian and in circumstances where they did not know for a time what had happened to him. I acknowledge that I am not in any way sentencing you in respect of Brian's killing. Nonetheless your actions in assisting in the removal and the burial of the body were integral in the crime being undetected until Mr Young's body was discovered in September 2005. Thus from September to December 2005 Brian Young's family did not know his whereabouts or the fate that befell him and this must have added considerably to their anxiety and distress.
In sentencing you I take into account the nature and gravity of the offence here committed and your role in it. I take into account also the need to pass a sentence which will serve to punish you and act in denunciation of your conduct and seek to specifically deter you from re-offending and deter other like minded members of the community, so that they will know that if they engage in conduct with the intention of impeding the apprehension, prosecution or conviction of persons they know or believe to have committed a serious indictable offence, they can expect condign punishment.
In sentencing you I take into account, in your favour, that at the beginning of the trial, through your counsel, you admitted your involvement to the extent that you were present when Mr Young was killed and you assisted in the burial of his body, and that through your counsel, you invited the jury to return a verdict of guilty to the offence of assisting an offender. Thus, from the outset of the trial and throughout you acknowledged your guilt for the offence for which you are ultimately convicted.
Further, through your counsel you co-operated with the Crown through the conduct of the trial and did not resile from the position that you were involved in that limited sense. Accordingly, as the Crown would not have accepted your plea of guilty to assisting an offender, even if it had been made on arraignment, I nonetheless accept that for all practical purposes you are to obtain such benefit as if you had so pleaded and that you are not in any way to be disadvantaged by seeking to obtain such tactical forensic advantage as was properly open to you.
It is common ground that there are significant distinguishing features between your case and that of your co-offender, Robert Saunders and it is not suggested that any sentence imposed upon you should achieve parity with the sentence imposed upon him. Mr Saunders received a sentence less than would otherwise have been imposed upon him by reason, inter alia, of his considerable co-operation with the police, which included making two telephone calls to you at the request of the police and more significantly, disclosing to the police where the body of Mr Young was buried. Mr Saunders also undertook to give evidence on behalf of the Crown at your trial. For these reasons he was sentenced to no more than time served.
Your counsel has submitted that you would have a justifiable sense of grievance if there was any appreciable difference in the sentence imposed upon you with that imposed upon your co-offender, Lisa Richardson, who was sentenced to three years imprisonment with a non-parole period of 20 months.
Lisa Richardson had a prior criminal history but there was much in her personal circumstances which mitigated the sentence so imposed. She had a significant history of poly-substance abuse and a significant history of psychiatric problems. She was diagnosed with an underlying anxiety and psychological disorder. She had led a hard and disturbed life such that her mental health had indeed improved while she had been in the structured environment of prison life and she had used her time, whilst in custody, in a productive manner and had taken constructive steps towards her rehabilitation.
In my view the role of Lisa Richardson was considerably less than yours. While she travelled with you to Ballarat to borrow the car, it was you who was able to obtain the car from your mother and the getting of the car was absolutely essential to the removal of the body from the flat and its subsequent transport to the You Yangs National Park and burial.
For these reasons, although Lisa Richardson was with you when the carpet machine was hired, I am nonetheless of the view that her role was less significant than yours.
No psychological or psychiatric material has been placed before the court which may either explain your involvement in this offence, or moderate considerations of general deterrence. Nothing has been said about how you have spent your time in custody and what steps you have taken, or propose to take, towards your rehabilitation.
I accept that you have the continued support of your mother and that you were not a drug addict at the time of this offence and that you have had the benefit of a tertiary education and that you have previously been in full-time employment.
Apart from these matters, little has been placed before the court to enable the court to adequately assess your prospects for rehabilitation.
In sentencing you, I take into account your age, that at the age of 29 you have no prior convictions and apart from the subsequent convictions, you are otherwise to be regarded as a person of good character. I take into account your prospects for rehabilitation, such as can be inferred from your antecedents and I take into account that you acknowledged at the outset of the trial, your involvement in this offence, consistent with the jury verdict. I take into account parity of sentence with that imposed upon your co-offender Lisa Richardson.
Accordingly, taking into account all matters which go in your favour and without in any way diminishing the nature and gravity of the offence here committed, you are sentenced to three years imprisonment with the non-parole period of 24 months, and I declare that you have already served by way of pre-sentence detention, a period of 679 days. Do you understand the sentence I have imposed upon you Mr Smith?
PRISONER: Yes Your Honour.
HER HONOUR: It is a sentence of three years imprisonment with the non-parole period of 24 months and I declare that you have already served 679 days of that sentence. Any other matters gentlemen?
MR GILLIGAN: No Your Honour
HER HONOUR: Yes, very well, thank you. Remove the prisoner.
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