R v Tamme
[2005] VSC 168
•13 May 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1531 of 2001
| THE QUEEN |
| v |
| EMMA-JAINE TAMME |
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JUDGE: | COLDREY J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 APRIL 2005 | |
DATE OF SENTENCE: | 13 MAY 2005 | |
CASE MAY BE CITED AS: | R v EMMA-JAINE TAMME | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 168 | |
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Criminal Law – Sentence – Manslaughter – Plea of guilty – Three offenders involved – One co-offender convicted of murder, the other manslaughter – Victim subjected to vicious drug fuelled assault – No evidence of this offender's precise involvement in the killing – Traumatic effect of an earlier trial taken into account – Regard had to demonstrated capacity for rehabilitation – Seven years with a non-parole period of four years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Kayser | Stephen Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Accused | Mr M. O'Connell | Slades & Parsons |
HIS HONOUR:
Emma‑Jaine Tamme, you have been found guilty by a jury of the manslaughter of Katriana Smyth (also known as Meaghan Smith) at Little River on 16 February 2001. In sentencing you it is necessary not only to set out the factual circumstances of this matter, but also its history.
In November 2002, you, together with a co‑accused, Natasha Morgan, were found guilty of the murder of Ms Smyth and you were sentenced to 18 years' imprisonment with a non‑parole period of 12 years. In your case, however, a retrial was ordered by the Court of Appeal in September of 2004, and on 7 April 2005, at the commencement of your retrial, you pleaded not guilty to murder but guilty to manslaughter. The trial nonetheless proceeded with the Crown calling as the key witness a Ms Michelle Jackson, an uncorroborated accomplice in the events leading to the death of Ms Smyth.
The Crown case depended solely upon Michelle Jackson's evidence to link you to the killing of Ms Smyth. There was no objective evidence of your involvement.
Prior to your first trial Ms Jackson had pleaded guilty to manslaughter and agreed to give evidence for the Crown. On that basis she had received a sentence of four years with a minimum of two years before eligibility for parole.
In the present trial it became increasingly apparent that her evidence was unreliable. It is not necessary for the purposes of this sentence to catalogue all of the factors which pointed to her lack of credibility. They included lack of any independent support for her account; the factual impossibility of some of her evidence together with its many internal contradictions; and the fact that she was affected by a cocktail of drugs at the relevant time. Indeed, Ms Jackson was linked forensically to the assault on Ms Smyth and had a motive to harm her. Consequently, at the conclusion of her evidence, the Crown determined to lead no further evidence on the count of murder and to accept your plea to the alternative offence of manslaughter. In my view that was an entirely proper course to take.
The major consequence of the unreliability of Ms Jackson's account is that this court is unable to make any specific findings as to your role in the assault which led to Ms Smyth's death. Through your counsel and, more importantly, through your plea of guilty to manslaughter, you conceded some involvement in Ms Smyth's death but it was put by your counsel that your role was peripheral compared to those of Morgan and Jackson. You gave a "no comment" record of interview and have never gone on record with your version of these events, although you told Mr Jeffrey Cummins, a Clinical and Consulting Psychologist who prepared a report on your behalf, that you were not involved in the actual assault and did not stab anyone.
In the days leading up to this offence you had become reacquainted with Michelle Jackson who you had originally met while working in the sex industry. Through her you were introduced to Natasha Morgan, another sex worker, at her unit in Fawkner. Over the ensuing days drugs such as marijuana, ecstasy, cocaine and amphetamine were consumed by you and the other women. From time to time you were joined by male hangers‑on.
You spent the day and early evening of Thursday 15 February at the Fawkner unit. Apart from drug ingestion, alcohol was consumed, Michelle Jackson having purchased a bottle of Jim Beam bourbon and a bottle of Jacob's Creek red wine. At some point the decision was made to bash Katriana Smyth, a friend of Ms Jackson who also worked in the sex industry. The reasons for this are not clear. On one version it was because she was thought to be a police informer. Another possible reason was that she had reneged on an agreement to share accommodation with Michelle Jackson. Yet another possible reason is that she had become romantically involved with a former lover of Ms Jackson. What is clear is that you had not met Ms Smyth before this evening.
In pursuance of the agreement to bash Ms Smyth, you, Natasha Morgan and Michelle Jackson travelled in Morgan's Holden Gemini car to the deceased's Frankston flat. In the car was a knife belonging to Michelle Jackson which, it appears, was later used by Natasha Morgan to stab Ms Smyth. Also transported was the bottle of Jacob's Creek wine which was later smashed at the scene of the killing and used to inflict injuries on the deceased.
It is not possible to make a finding as to whether you were a party to the decision to provide these weapons.
Clearly, part of the plan was to induce Ms Smyth to come in the car and, thereafter, to drive to a remote location where she would be, at the very least, assaulted.
The preponderance of the material is that Ms Smyth was persuaded to accompany you as a result of an untrue claim that there was a job in Geelong for which she would be paid $500 as well as all the drugs she could use.
It appears that at Frankston some marijuana was smoked and, en route to Little River, the vehicle was stopped while cocaine was consumed.
Eventually, in the early hours of 16 February, the Gemini arrived at Boadles Lane, Little River, stopping in an area without street lights and surrounded by paddocks.
On the material before me, it is not possible to determine who instigated the attack on Ms Smyth. Natasha Morgan admitted to one act of stabbing while Michelle Jackson asserted that, at one point, she had taken the knife from Ms Morgan and simulated stabbing Ms Smyth at a time when she was lying on her back. It was Ms Jackson's assertion that she drove the knife into the ground adjacent to Ms Smyth rather than into her body.
At a time subsequent to these events, Ms Jackson hid the knife in the garage of Ms Morgan's unit and it has never been located. As for the bottle of wine which was smashed and used as a weapon, the only significant fingerprint located on it was found on an interior surface of the bottle ‑ that is after it had been smashed. It belonged to Michelle Jackson.
Even acting upon the assumption that the original plan was only to bash Ms Smyth, the actions of the participants escalated to a high level of violence. Apart from the injuries inflicted by the use of the knife and the bottle, Ms Smyth was struck to the head by a rock. The probabilities are that this blow was the cause of a fractured skull located by Dr Malcolm Dodd in his postmortem examination.
Ms Smyth suffered a large number of injuries. These included cuts to the face, stab wounds to the chest and abdomen, the left upper arm and right forearm and the back. In Dr Dodd's opinion the wounds to the left arm were consistent with defensive injuries. It was also his opinion that death would have ensued within minutes of the skull fracture.
On any view this was a brutal and violent attack. It has all the hallmarks of a drug‑fuelled frenzy with the level of violence increasing in conjunction with the participants' loss of self‑control.
In accepting your plea, the Crown conceded that it could not prove any specific acts of violence on your part and that your liability was on the basis of your agreement to bash Ms Smyth and your presence for that purpose. This is in distinction from any intention to kill Ms Smyth or cause her really serious bodily injury.
Following the attack on Ms Smyth her body was placed in the boot of the Gemini. There was evidence from Ms Jackson of hearing two loud thumps from the boot about five minutes into the return trip to Melbourne. This seems unlikely given Dr Dodd's evidence of imminent death following the skull fracture.
Eventually you all returned to the Fawkner unit and discussions were held as to the disposal of Ms Smyth's body. About midday on that day persons by the name of Sam and Terrence arrived at the unit willing to assist in this activity.
Together with Morgan and Jackson you travelled in the Gemini following the men's vehicle to an area off the Kilmore‑Wandong Road. Here efforts were made to dig a grave but when the ground proved too hard, the deceased's body, which had been removed from the boot of the Gemini, was dumped in a dry creek bed which was nearby. Ms Smyth's body was discovered on 18 February.
On any view this was a vicious assault. At the very least you were agreeable to this bashing and you were party to the luring of Ms Smyth to the relatively remote location where it occurred. Whilst it is impossible to ascertain your precise role in the ensuing assault, there is no suggestion you did anything to assist Ms Smyth or prevent what occurred to her. Thereafter you willingly participated in the disposal of her body.
It was submitted by your counsel that you should not be sentenced as having played any greater role in this offence than Michelle Jackson. On a factual basis that submission has merit. However, it cannot be overlooked that, quite apart from matters of personal background, Ms Jackson's sentence was substantially reduced because of her early cooperation with the police, her plea of guilty which was found to indicate remorse, her willingness to give evidence for the prosecution, and the onerous effect that course of action would have upon her treatment in custody. As the sentencing judge put it: "The sentence I impose will be substantially less than that I would have imposed if there had not been that cooperation".
This is a very significant distinction between you and Ms Jackson. It outweighs the five year age difference and any relative prospects of rehabilitation adverted to by your counsel in his submissions on parity. I note, in passing, that Ms Jackson's prospects of rehabilitation were described as "relatively good" by the sentencing judge.
Of course, your relative youth at the time of this offence and your prospects of rehabilitation are in themselves relevant sentencing factors. Moreover, I take into account as a distinguishing factor the stress occasioned not only by your initial conviction for murder and your serving of almost two years of the sentence imposed, but also the uncertainty as to your future that you have experienced in the time since that conviction was overturned.
There are a number of matters personal to you, which have an important bearing on the sentence to be imposed. Before referring to them I wish to say something about the victim of this offence.
Katriana Smyth was 30 years old at the time of her death. After leaving school at Year 10 level she had been gainfully employed. Her work included a period in which she undertook secretarial duties for the Heart Foundation in Hobart. She also had two children from a de facto relationship who were aged 12 and 9 at the date of her death. In the years after Ms Smyth moved to Melbourne in 1991, she saw less of her children and her mother, Mrs Carolyn Smith, than they would have wished. Nonetheless, they remained close to her. It is clear that her death has had a devastating effect upon all of them. This is graphically described in Mrs Smith's Victim Impact Statements of June and December of 2002. Katriana Smyth's untimely death, and the manner in which it occurred, is something from which her family will never fully recover.
Emma Tamme, you are presently 26 years old. You were born in Melbourne and have one younger sister. Your mother, Mrs Helen Tamme, is a receptionist and she and your sister are very supportive of you. The former is in a de facto relationship with a person she describes as being akin to a father figure to you and she is able to provide you with accommodation at her Heathmont home. This is the culmination of the restoration of a mother‑daughter relationship that was disrupted in your teenage years.
In the course of her evidence Mrs Tamme described your maturation while in prison, exemplified by the manner in which you coped with the recent death of your grandmother, a person to whom you were particularly close.
Your early life was quite traumatic. The domestic scene was marred by violence and your parents separated when you were aged 12. Thereafter your relationship with your mother deteriorated to the extent of her making you leave home. You were forced by circumstances to reside with your father who was, at this stage, involved in heroin use and trafficking. Just prior to this occurring, you were the victim of a rape perpetrated by a 16 year old neighbour. You chose not to report this assault to police for about a year but it manifested itself in behavioural problems which resulted in your referral to a Dr Geoffrey Swift, a Child Psychiatrist. Having eventually reported the matter to the police, you ultimately decided not to pursue the complaint.
Your education commenced at North Ringwood Primary School and concluded halfway through Year 9 at Norwood Secondary College, Ringwood. In these circumstances your subsequent educational attainments, which I shall refer to in a moment, are all the more creditable.
From the time you went to live with your father there are two strands to your life.
The first was a continuation of the damaging experiences which commenced with domestic trauma. During the period of about 18 months that you lived with your father in Bayswater, he introduced you to heroin and to a friend of his named Hass with whom you subsequently had an intermittent relationship spanning some five years. Hass, who was about twice your age, introduced you to prostitution at the age of 16. The money you earned at such venues as The Oasis, in Thomastown, went to service his heroin habit. At the ages of about 15 and 16, while involved with Hass, you had two pregnancies terminated.
It was during your association with the sex industry that you were exposed to ecstasy, cocaine and speed. From time to time you were on a methadone program to counteract your heroin use, but it was not until you were about 20, had left Hass, and formed a friendship with a man named Sebastian that you stopped using heroin. For a time you also left the sex industry. However, when your association with Sebastian ended in October 2000, you returned to The Oasis parlour in order to finance your re‑emerging drug needs. As you told Mr Cummins, you would take speed so that you could work as a prostitute and you would use ecstasy and cocaine socially.
In early February 2001, you were drugged while at a friend's house and you later learnt a number of men had had sex with you. In effect you had been gang raped. This unwanted and traumatic experience, which occurred close to the time of this offence, caused you great distress.
Remarkably, however, there has been another aspect to your life. From time to time you obtained work selling computers. This employment even occurred during the period you were with Hass who had a brother in the computer industry. Indeed, there were times during this stanza of your life when you returned to live with your mother and resumed your studies.
In 1997, you undertook a number of subjects at Swinburne TAFE and acquired qualifications in the area of office administration (including computer operations). Thereafter, you obtained employment in computer sales with Trilynx Systems, Alphington; then MBM Office Systems and Supplies in Coburg; and finally at Harvey Norman in Nunawading. Each firm has supplied references to this Court which speak favourably of your sales capacity, honestly and reliability.
During the year 2000, you again were living with your mother but late in that year, and into January and February 2001, your visits to home became irregular as you slipped back into a life of partying and prostitution. Despite the support of Terrence Katsonis, a long term friend, you eventually lost your job at Harvey Norman on 10 January 2001, due to a lack of punctuality.
Effectively you have no prior convictions. A charge of using a drug of dependence, being cannabis, was found proven and dismissed when you were aged 16. You have never before faced a court for any offence involving violence and your participation in this offence may well be explained by drug usage which impaired your judgment.
About the only advantage this Court has in this difficult sentencing exercise is the ability to examine your conduct over the past four years. That examination reveals that, during the time you have been in prison, you have once again attempted to reconstruct your life. I give some examples. In 2002/3, you commenced and completed Certificates 1 and 2 in General Education for Adults. In 2003, you obtained your VCE. Your subjects included English Literature, Business Management and Economics. In 2004, you completed Certificate 1 in Horticulture (Parks and Gardens) and you are continuing to study Business Management (Marketing). Given your past history these are significant achievements. Tests conducted during your sojourn in custody have demonstrated you to have remained drug free.
I was also provided with a letter from Mr Brendan Money, the General Manager, Women's Prisons Region, congratulating you on your performance and work in a production entitled "Somebody's Daughter" presented in 2004 at the Dame Phyllis Frost Centre.
The psychological report of Mr Jeffrey Cummins is now two and a half years old, but it does contain the opinion that you do not present as psychotic or as having any anti‑ social personality disorder.
In light of your efforts to overcome the physically and mentally debilitating features of your early life; your lack of any prior convictions; the ongoing support that you have from family and friends; your maturation over the past four years; your demonstrated intelligence; and your capacity for gainful employment, I regard your prospects of rehabilitation as excellent.
In addition to your age at the time of the offence, and the effect upon you of the history of uncertainty that has accompanied this matter, I also give you credit for your plea of guilty to manslaughter which, I am informed, was first offered to the Crown in October 2002.
Finally I note that, in the course of your plea, the Crown Prosecutor, Mr Kayser, submitted that a sentence which resulted in incarceration for no longer than you have already served would be within the sentencing range properly open to this Court.
In fact, the period to be reckoned as already served under any sentence to be imposed upon you is 1,533 days inclusive of today's date. That declaration is to be noted in the records of the Court.
Balancing as best I can the principles enunciated in the Sentencing Act, including punishment, special and general deterrence, and rehabilitation, I have concluded that you should be sentenced to be imprisoned for seven years with a period of four years before you become eligible for parole.
Given the time already served, which I understand is in the order of four years, three months, no doubt the Parole Board will set in motion whatever is required for your release.
MR O'CONNELL: If Your Honour pleases.
MR SCHULTZ: As Your Honour pleases.
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