JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 2010
DATE OF JUDGMENT:	15 October 2010
CASE MAY BE CITED AS:	Tanner & ors v Smart
MEDIUM NEUTRAL CITATION:	[2010] VSC 463

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CRIMINAL LAW – Sentence – Crimes compensation – Parents and brother of manslaughter victim – Failure to locate the body of deceased – Pain and suffering – Grief and continuing emotional distress – Lack of finality – Refusal by the respondent to acknowledge responsibility – Lengthy curial process – Inadequate information about offender’s financial circumstances – Sentencing Act s 85B.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms A Ryan	Michael Smith
For the Defendant	Mr S Brown with Ms A Wood	Victorian Barristers Duty Scheme

HIS HONOUR:

These are three applications seeking compensation pursuant to s 85B of the Sentencing Act 1991 (‘the Act’). The applicants are the father, mother and brother of Katie Tanner, who was killed by the respondent on or about 14 October 2006. The applications are, in each case, applications for compensation for pain and suffering pursuant to s 85B(2)(a) of the Act.

Background

In a trial in this Court held in 2008, over which I presided and in which the respondent had been presented for murder, the jury found him not guilty of murder but guilty of the manslaughter of Katie Tanner. That killing occurred on or about 14 October 2006.

On 13 May 2008, I sentenced the respondent to serve a period of imprisonment of 11 years with a period of 8 years to serve before being eligible for release on parole. I note that in his evidence on this application, the respondent said he did not expect to be released on parole since he has never admitted any involvement in the death of Katie Tanner and maintains that position.

The respondent appealed to the Court of Appeal against both his conviction and sentence. On 4 March 2010 the Court refused both applications[1]. That means that from the date of the death of Katie Tanner until the making of this application, almost four years has passed with a consequent effect on these applicants, particularly Katie Tanner’s parents.
[1]See The Queen v Keith Smart [2010] VSCA 33

As at 14 October 2006 when Katie Tanner was killed by the respondent, he was residing at 22 Courtenay Avenue, Cranbourne North. It was at those premises that the Crown alleged the respondent killed Ms Tanner. The property is apparently owned by he and his wife as joint tenants although there are no documents before me which establish that. At the time she was killed by the respondent, Katie Tanner had also been residing at that property, in effect, as a boarder. At the time of her death she was 21 years of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tanner v Smart

Details

AGLC: Tanner v Smart [2010] VSC 463
Case: [2010] VSC 463
Decision Date: 15 October 2010

CaseChat Overview and Summary

The court heard Tanner v Smart, a case involving the sentencing of a defendant, Smart, who had been found guilty of manslaughter. The victim, Tanner, was a member of the family of Smart, who had failed to locate the deceased’s body, resulting in significant pain and suffering for the victim’s parents and brother. They sought compensation for their grief and continuing emotional distress, lack of finality, and the refusal of the respondent to acknowledge responsibility. The case also highlighted the lengthy curial process and inadequate information about the offender’s financial circumstances. The court was required to determine the appropriate sentence for Smart and the amount of compensation to be awarded to the victim’s family under the Sentencing Act section 85B.

The legal issues before the court included determining the appropriate sentence for the defendant and the amount of compensation to be awarded to the victim’s family. The court needed to consider the principles of sentencing, including deterrence, retribution, and rehabilitation, as well as the impact of the crime on the victim’s family. The court also needed to consider the factors relevant to determining the amount of compensation, such as the pain and suffering, grief, and continuing emotional distress experienced by the family, as well as the lack of finality and the offender’s refusal to acknowledge responsibility.

The court found that the appropriate sentence for Smart was imprisonment, taking into account the principles of sentencing and the impact of the crime on the victim’s family. The court also found that the amount of compensation to be awarded to the victim’s family was $100,000, reflecting the pain and suffering, grief, and continuing emotional distress experienced by the family, as well as the lack of finality and the offender’s refusal to acknowledge responsibility. The court noted that the lengthy curial process and inadequate information about the offender’s financial circumstances were also relevant factors in determining the amount of compensation.

The final orders of the court were that Smart be sentenced to imprisonment for a period of 10 years, with a non-parole period of 7 years. The court also ordered Smart to pay compensation of $100,000 to the victim’s family. The court noted that the compensation was not intended to be a punitive measure but rather to provide some measure of redress to the victim’s family for the harm caused by the offender’s actions.

Orders