R v Toms
[2005] VSC 309
•17 August 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1515 of 2004
| THE QUEEN |
| v |
| PAUL ANTHONY TOMS |
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JUDGE: | KAYE J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 August 2005 | |
DATE OF SENTENCE: | 17 August 2005 | |
CASE MAY BE CITED AS: | R v Toms | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 309 | |
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CRIMINAL LAW – Sentence – Reckless conduct endangering life – Injecting another with methylamphetamine – Death of victim.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Elston, S.C. | Office of Public Prosecutions |
| For the Accused | Mr P. Chadwick | Victoria Legal Aid |
HIS HONOUR:
Paul Anthony Toms, you have pleaded guilty to one charge that at Marysville on 14 January 2004 you recklessly engaged in conduct which placed Stephanie Gracie in danger of death by injecting Stephanie Gracie with methylamphetamine. You have also pleaded guilty to a second charge that on 15 January 2004 at Seaholme you had in your possession a drug of dependence, namely cannabis L.
You first met Stephanie Gracie while you were both undertaking the first year of a science degree at the University of Victoria. In August 2003, and shortly after her eighteenth birthday, Stephanie and you commenced a relationship. At first you lived together at rented premises at Hawthorn. During the last eight weeks before January 2004 you had moved into a garage at the home of Stephanie’s father, which had been converted into a bedroom.
As a result of the injection of methylamphetamine which you administered to her, Stephanie Gracie died on 15 January 2004. Accordingly you are the only person who was a direct witness to the circumstances of the offence to which you have pleaded guilty in Count 1 of the presentment. Your account of what occurred is set out in a record of interview conducted with you by the police at the Altona North Police Station on 15 January. The account which you gave to the police is, to say the least, somewhat confused, and leaves a number of important questions either unasked or not satisfactorily answered. In particular, I find your description of how you came to acquire the drug to be unsatisfactory. So too is your description of how you say Stephanie came to have a syringe and amphetamine in her possession. The interview does not give any convincing explanation as to the circumstances in which you injected Stephanie with the drug. There is evidence that on the way home from Marysville, you stopped at a petrol station at Collingwood, and asked for the way to Gipps Street. In your record of interview you denied having that conversation, or even attending that petrol station. The console operator of that petrol station stated that, at that time, Stephanie was acting normally. On the other hand, you stated that after you injected Stephanie at Marysville she had a fast pulse and was very talkative. All of those matters cause me to have substantial reservations about accepting in its entirety the version of events which you have given in your record of interview.
Nonetheless, and bearing that caveat in mind, your record of interview does disclose sufficient of the facts for me to make appropriate findings for the purposes of passing sentence on you. It appears that in January 2004 Stephanie and you were experiencing difficulties in your relationship. After you had finished work on 14 January 2004, you drove with Stephanie to Stevenson’s Falls at Marysville in order to discuss your problems. In your record of interview you stated that while you were on route to Marysville, you stopped at a service station on the Maroondah Highway between Mitcham and Ringwood. You claimed that there you fortuitously met an old friend called Peter. You were unable to tell the police Peter’s surname. You had last seen him, as I understand it, some six or seven years previously in north Queensland. When you met Peter he sold to you a quantity of amphetamines. Stephanie and you then proceeded to Marysville. You say that you had a long discussion about your personal problems, which were substantially resolved amicably.
It is at this point that your version of events to the police becomes somewhat confused. As best as I can understand it, you then injected yourself with some of the amphetamines which you had purchased. At some stage you were outside the motor car, smoking a cigarette. You stated that you noticed that Stephanie was attempting to inject herself. I do however note that in your record of interview you told the police that you thought Stephanie was joking, and that she would not be able to inject herself. The evidence of Stephanie’s mother is that she was terrified of needles. Nonetheless, you state that you were concerned that she might inject herself in the wrong way. Accordingly you injected her with what you say was a small amount of amphetamines. You then drove Stephanie home from Marysville. You say that she was affected by the amphetamines by exhibiting a fast pulse, she could not stop talking, and that she was thirsty.
Pausing there, it is sufficient for me to accept that the two of you went to Marysville to discuss your difficulties. There you injected yourself with amphetamines. With Stepanie’s consent you also injected her with amphetamines.
In your interview you then say that when you got home you continued to talk together, and that you each confirmed your strong feelings for each other. You say that she then said that she felt really tired. You observed that her head lolled back and her eyes rolled back in her head. You also saw that she was foaming at the mouth. You picked her up and put her to bed. This was at about 5.00am or 6.00am. You proceeded to watch television, and apparently fell asleep while doing so. At 12.15 you had your shower. You checked on Stephanie at approximately 1.05pm. You noticed Stephanie had changed colour and was not breathing. The ambulance was called at 1.07pm. When the ambulance officer arrived at 1.15pm he confirmed that Stephanie had died. Toxicological analysis confirmed that Stephanie had both methylamphetamine and amphetamine in her bloodstream at the time of her death. The pathologist who conducted the autopsy considered that the cause of death was toxicity to amphetamine.
Originally you were charged with the manslaughter of Stephanie Gracie, and, as an alternative, with recklessly engaging in conduct which placed Stephanie Gracie in danger of death. On 1 August 2005, when the matter came on for trial, the Crown filed over a fresh presentment omitting the charge of manslaughter. It was then that you pleaded guilty to the two charges which I have described above.
The crime of recklessly engaging in conduct which places another in danger of death is a serious crime for which the maximum sentence is ten years’ imprisonment. By your plea of guilty you have accepted that you were reckless in that you foresaw that the probable consequence of your conduct in injecting Stephanie Gracie would be that Stephanie would die. Your plea of guilty also acknowledges that you thereby engaged in conduct which a reasonable person in your position would have realised placed or might have placed Stephanie in danger of death. In your record of interview with the police, you expressly acknowledged that your conduct was “very reckless”. You accepted that you knew and understood the significant risks involved in injecting Stephanie with amphetamines. You well appreciated the dangers associated with the use of illicit drugs, and in particular amphetamines. You told the police that in using drugs, “you’re cheating death, it’s only a matter of time.” You accepted that the “risks are very very high.” You acknowledged that there is a high risk with the use of any illicit drug, and that that risk includes the risk of fatality.
The circumstances in which you injected Stephanie with methylamphetamine are, in my view, particularly serious. At the time of the offence you were 34 years of age and Stephanie was 18 years of age. You had vastly greater experience in life than Stephanie. In particular, your experience with and your prior use of illicit drugs was significantly greater than Stephanie. On your own admission you had used a wide range of illicit drugs. In the past you had been a very regular user of amphetamines over a ten year period. By contrast, Stephanie was 16 years younger than you. She had completed her secondary education the previous year. She was, at least until the latter part of 2003, a good and conscientious student, and a keen hockey player. She hated needles. If – which is unclear – she had any previous experience of drugs, it was only recent. In your interview you stated that she tried marijuana, but did not like it. Certainly she had never before used amphetamines. It is clear that you were in a significant position to influence Stephanie’s decision to take the drug. Instead, you injected her when you knew that she was too scared to inject herself. You thereby put her young life at substantial risk. Tragically that risk came to pass. As a result of your actions, a promising young life has been brought to an all too premature end.
Of course, the sentence which is to be passed on you is a sentence appropriate to the offence to which you have pleaded guilty, namely, the offence of recklessly endangering life. You are not to be sentenced for any more serious offence, and in particular for the offence of manslaughter. On the other hand, the law requires me to take into account the impact of the offence on any victim, and any injury resulting from the offence. As such I am to take into account the consequences of your actions which would have been reasonably foreseen by you. Clearly by your own admission in this case, and by pleading guilty to conduct recklessly endangering life, you foresaw, as would a reasonable person, the probability of death ensuing from your conduct.
I also consider that I am obliged to take into account, as part of the circumstances of your offence, your conduct after you noticed the untoward signs exhibited by Stephanie in the garage at Seaholme. When you observed that her head lolled back, that her eyes rolled back in her head, that she was extremely tired, and that she foamed at the mouth, you did not seek medical help for her. You put her to bed. You left her there for six hours. By the time the ambulance arrived it is clear that Stephanie had died some time previously. In your interview with the police you said that you had been concerned with Stephanie’s condition when you put her to bed. The least you could have done was to take her there and then to a doctor. Instead you chose to do nothing. Having recklessly imperilled Stephanie Gracie’s life by injecting her with methylamphetamine, you failed to take any appropriate steps to redeem the situation when it became apparent that her life was indeed at risk.
The direct victim of your conduct is, of course, Stephanie Gracie, a young woman of just 18 years with a zest for life, and who was talented in her studies, sport and music. There are also other victims of your conduct. Stephanie’s death has deprived her loving and devoted parents of their only daughter, to both of whom she was particularly close, and who had high hopes for her future. The loss, grief and anguish which your actions have caused to them and their partners are a direct, foreseeable and enduring consequence of the conduct for which you are to be sentenced.
I now turn to matters relating to your background. In his thorough and skilful plea before me Mr Chadwick outlined your background in substantial detail. He appropriately described your background as involving a particularly dysfunctional childhood. Your parents separated when you were 18 months old. You remained with your mother. In the coming years she formed a number of relationships with different men. As a result you changed addresses and schools on a large number of occasions. From time to time you resided with members of your extended family. Your mother remarried on two occasions, each time unsuccessfully. The second of your stepfathers was violent and abusive towards you. Your childhood was marked by considerable marital disharmony between your mother and your two stepfathers. Your mother had suffered abuse as a child. I was told that she was similarly violent towards you during your childhood. Ultimately, you left your mother and resided with your father from the ages of nine to 13. Those years were a happy period in your life in which you apparently thrived. Unfortunately, you went back to living with your mother in your early teens. When you returned, you were subjected to considerable emotional abuse and stress. Ultimately, you left school at the age of 15. As later circumstances in your life reveal, you certainly had sufficient ability to take your education much further than Year 9.
Shortly after leaving school you were forced to leave home by your mother. Thus from the young age of 16 you had to fend for yourself. You undertook an occupational preparation course at Preston TAFE. In the meantime you supported yourself by working. During your teen years and early adult years, you became, to use the expression of your counsel, a jack of all trades, being gainfully employed in a variety of different situations. It is to your credit that, notwithstanding your significantly disadvantaged childhood, you have been able to support yourself over the years.
In the meantime, you had been introduced to illicit drugs. That introduction commenced while you were living with your father on the Mornington Peninsula, and involved the use of cannabis. At the age of 17, following considerable stress involving your mother, you attempted to commit suicide. At about that time you commenced using methylamphetamine. In your record of interview you told the police that you used that drug for the better part of a decade.
In your late teens you left Melbourne and spent the next eight or ten years of your life living an itinerant lifestyle. You travelled throughout Australia obtaining employment where you went. You lived in Brisbane and Darwin. In both of those cities you came into contact with people who used drugs. From there your drug habit developed. You told the police that during your twenties you used just about every illicit substance “known to man”. Subsequently you went overseas to the United Kingdom where you worked in a variety of occupations. At that stage of your life you drifted from one place to another, and from one job to another. Ultimately in the latter part of your twenties you returned to Australia. You ended up in Port Douglas where drugs were plentiful. There you met a girlfriend who was also a drug user. She became pregnant by you. Together you came to Melbourne. On your arrival you obtained employment initially in metal fabricating. You then obtained employment in pest control. During this time your two children were born. You now have a daughter aged eight and a son aged six. You were still unable to break the grip which drugs had upon you. Nonetheless you remained in employment. You then started your own pest control business.
In April 2001 your life essentially fell apart. You were still regularly using drugs. Your business failed, apparently because a cheque payable to you was dishonoured. As a result you became unemployed. You split up from your wife. She and you tried to reconcile but without success.
You then went to live with your sister Irene, who has been a rock of support to you during your turbulent life. At her insistence you were able to reduce and then cease using drugs. You were free from the use of cannabis for the first time in 15 years, and free from the use of amphetamines for the first time in approximately a decade.
In 2002 you then returned to Melbourne, to live in Hawthorn. You enrolled at Swinburne TAFE, where you successfully completed a 12 month course in industrial sciences. Because you were free of drugs your wife permitted you to have access to your two children. You obtained employment as a security guard. It was then that you pursued an ambition to obtain qualifications in forensic science. For that purpose you enrolled with the Victoria University.
Unfortunately, you returned to the use of drugs towards the end of 2002, as a response to the pressures of studying for exams while working to support yourself. By the time classes began at Victoria University in 2003 your drug habit was re‑established. You continued to work as a security guard until August or September 2003. It was during that time that, as I have stated, you met Stephanie Gracie, and entered into a relationship with her.
Pausing there, the foregoing summary of your background shows that there are a number of mitigating circumstances relating to your history which I take into account. First, you come from a background and in particular a childhood which was severely disadvantaged and indeed dysfunctional. While that does not excuse your involvement in illicit drugs, nonetheless it provides an explanation for it. Secondly and most commendably, notwithstanding the difficulties which you have had in your life, you have not resorted to criminal activity to support your drug habit. Rather and on the contrary you have been able to obtain and retain gainful employment to support yourself, and to pay for the drugs which you have used. In that respect your background is particularly unusual, and indeed somewhat exceptional, in light of your long history of prolific drug abuse. Thirdly, your background shows that you are capable of living a useful and productive life in the community. You are sufficiently intelligent to undertake tertiary education. Your history shows you to be a resourceful person with considerable initiative.
I also accept that you have been and remain remorseful as a result of the tragic events which bring you before me. When the ambulance arrived you were, literally, prostrated by your grief for Stephanie. You had the good sense to then seek assistance, both for your grief and depression, and also for your drug problem. You attended at the Drug Treatment Services of Barwon Health and Community Mental Health on 5 February 2004 requesting assistance to maintain your abstinence from amphetamine and methylamphetamine abuse. The report from that service, dated 6 April 2004, indicates that you engaged well in the counselling process. When you attended for your third counselling appointment in March 2004 you were assessed to be a high level of suicidal risk. You were taken to the Swanston Centre where you remained for three days. You were treated by a psychiatrist, Dr Von Ammers, for a period of three months. During this period you also attended at the Drysdale Family Support. Mrs Janet Schultz, a counsellor, who saw you there, gave evidence before me. Her evidence, which I accept, is that you were particularly conscientious about your counselling. Mrs Schultz was impressed with your determination and commitment to change your life. You continued with treatment from the Drug Treatment Services until August 2004. Thereafter you continued to see your own general practitioner. During this time you were living with your sister.
In late 2004 you left Geelong and lived in Gladstone Park. One month or so later you met an old female friend. She was separated from her partner, with three young children. You have commenced a relationship with her. I have read the character reference provided by your current partner’s mother. She describes you as a thoughtful, caring and honest person who has been a positive influence on your partner Kellie and her children.
During your plea I was told that, with one minor blemish, you have remained free of the use of illicit drugs since January 2004. The one blemish was when you recently used cannabis. Unfortunately you have not been subjected to any random screen tests to confirm that your drug use has ceased. Further, no evidence was called from any of your family, or those close to you, as to your abstinence from the use of drugs. Mrs Schultz did speak to you at court for half an hour, and she considered that you are genuinely free of drugs. For the purposes of sentencing you, I accept that, at the least, you have made genuine and sincere efforts to cease your use of drugs since the death of Stephanie. With some hesitation and reservation, I accept that those efforts have probably been successful. At the same time, I note that Mr Ian Joblin, the forensic psychologist who saw you on 4 August 2005, referred to your fragility to drug use, an observation well borne out by your past history. Nonetheless, I do accept that you have endeavoured to take genuine steps to rehabilitate yourself after the tragic events of January 2004.
In summary, then, there are a number of mitigating circumstances which I take into account. They include the matters pertaining to your background to which I have referred, and in particular your difficult childhood, the fact that you had no previous convictions, and your past work history. In addition, I take into account your plea of guilty, which is not only of utility in saving court time and public expense, but also has spared the family of Stephanie the trauma of a contested trial. I also take into account the fact that in your record of interview you freely admitted to injecting Stephanie, and freely and candidly admitted to knowing the lethal risks associated with that conduct. In addition, I take into account the remorse which you have shown since the incident, and of your efforts to rehabilitate yourself.
In determining the sentence which is to be imposed on you, I am required to balance, on the one hand, the seriousness of the offence which you have committed, and, on the other hand, the mitigating circumstances which I have already summarised. The sentence which I impose must be of sufficient gravity to properly reflect the Court’s condemnation and denunciation of your recklessly dangerous conduct. In a case such as this the concept of general deterrence is, I consider, important. As the events of this case so tragically demonstrate the use of illicit drugs involves significant and lethal risks to the lives of others. It is important that the sentence which I pass on you be of sufficient severity to send a clear message to the community that this type of conduct, involving the reckless administration of drugs to others, is unacceptable and will not be tolerated. In addition the sentence must be sufficient to deter you from any repetition of that or similar conduct.
Taking all those matters into account, I sentence you as follows. On Count 1 of the presentment, I sentence you to a term of 6 years’ imprisonment. I direct that you serve a minimum term of 4 years’ imprisonment before you become eligible for parole. Pursuant to s.18(4) of the Sentencing Act I declare that the period of 10 days be reckoned as already served under the sentence which I impose. I shall cause a notation to be made in the records of the Court that that declaration was made.
In relation to Count 2 of the presentment, the amount of cannabis involved was small. In light of your sentence on Count 1, it is appropriate to convict you on Count 2 but otherwise discharge you without penalty.
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