R v Newton [2002] VSC 182

Supreme Court of Victoria|2002-05-17|Before: FLATMAN J.

CRIMINAL LAW - Sentence - Assist offender - Undertaking to give evidence against principal offender - Suspended Sentence.

Charlotte Emma Newton, you have pleaded guilty to one count of assisting an offender, knowing or believing that he had committed the crime of murder. The principal offender named in the presentment was one, Harris Kadrick. As with your co-accused, Brooke Frances Rees, the facts in this case can be simply stated.

On Friday 23 February 2001, you went with Harris Kadrick to Springvale to buy heroin. You had with you about $600 and you were looking to buy between half a gram and one gram of heroin. You were going to divide that up and sell some and use the rest for yourselves. In Springvale, you met up with Nick Chiacchietta and his girlfriend, Brooke Rees. After going to St Kilda, you then went to the main street of Footscray in Chiacchietta's Volvo car.

There you entered into a deal involving Tan Vu Tran, Li Thi Phong and an unknown female supplier. Your group paid over $400 towards the deal and a further $100 was paid by Tran. As soon as you tasted the substance you believed it was not heroin. You returned to Chiacchietta's home and Brooke Rees took over the driving of the vehicle. You were all of the view that you had been "ripped off". Ultimately, you made contact with Li Phong, and Phong was forced to get into the vehicle now driven by Brooke Rees. An altercation then took place in the car involving Kadrick and Phong. According to your statement, you were involved to the extent of trying to prevent Phong using his knife. It would appear that Phong was stabbed a number of times by Kadrick and later died of those wounds. The full extent of his injuries is set out in the reports by Professor Cordner and Dr Michael Coman. As the precise circumstances under which the deceased met his death are the subject of further proceedings, I should emphasise that the evidentiary framework for this sentence is based on the hand-up brief admissible against you.

As it was with Brooke Rees, it can be said that you had no way of anticipating these events and to some extent you were less involved than Rees in that Rees was in the position as driver. It has also been put that you suggested going to the police after the stabbing.

Your criminality is constituted by assisting Rees cleaning the inside and outside of the motor vehicle and removing from it property belonging to the deceased, namely, a blue-grey Billabong backpack, running shoes and some broken spectacles. Together you disposed of these items in a Brotherhood of St Laurence bin in a car park. You also removed a bloodstained blanket from the car. Your criminality is therefore constituted by the cleaning-up of the vehicle after the stabbing and the disposal of relevant evidence.

As I said in the sentence of Brooke Rees, it is clear that it is very much against the community's interest that persons should assist others in the concealment of the commission of very serious crimes, and clearly as a general proposition, the engagement in such activity must be deterred. In the case against Rees, it was suggested that the facts of the case put the criminality towards the lower end of the scale and that was acceded to by the Prosecutor. Similar considerations apply to you.

There are significant factors which are personal to you that need to be taken into account in the exercise of my sentencing discretion and I have read the report from Bernard Healy dated 3 May 2002 and I have heard evidence from your mother, Jean Carol Tremayne.

You migrated with your family to Australia from England in 1982. Your parents separated when you were 13 years old. You have one sibling, a half-sister who is married with two children and lives in Adelaide. You left home to live on your own and then went to the Gold Coast where you became pregnant at the age of 18 years. Your child was born on 15 November 1995 and you had a turbulent relationship with your de-facto partner. Your daughter remained in your care until November 2000. During the course of the relationship with your de-facto partner you came to use progressively more heroin. You met the co-accused in this matter, Harris Kadrick, while undergoing detoxification at Windana in November 2000. In March of 2001, you were the victim of a rape at Keysborough. While working for an escort agency in Adelaide in April 2001, you were again raped. This resulted in a prosecution of the offender. You gave evidence against this accused in a trial in January 2002 which trial resulted in a guilty verdict.

In relation to your work history, you have had limited work experience after the birth of your daughter, although you worked as a nail technician in Prahran for some time. Currently, your daughter is in the care of your former partner and his family and you hope to apply for custody of her as your rehabilitation progresses.

You have one prior conviction, namely, soliciting for the purposes of prostitution in a public place which, in my view, is of limited relevance. Your subsequent conviction for armed robbery on 31 October 2001 at the District Court of South Australia has much more relevance. You were there sentenced to a term of imprisonment of three years six months, with a minimum non-parole period of nine months to be served before being eligible for parole. You were released on a South Australian Parole Order on 28 February 2002, after serving a nine month non-parole period.

I have read the report from the Parole Board of South Australia dated 15 January 2002 which sets out positive programmes for your rehabilitation. I have also read a report dated 7 May 2002 from Ms Helen Mallen, a social worker/Community Correctional Officer, who has been your supervisor since your release on the parole order. She indicates that since your release you have encountered no problems in fulfilling and abiding by the conditions of your parole. She says you have never missed a supervision appointment and it would appear that you are taking positive steps towards your rehabilitation.

It has been put by both the Crown and the defence that although different considerations apply between you and Brooke Rees, in effect the balancing of those considerations should lead to parity of sentencing and I agree.

I note that you have pleaded guilty, made full admissions when interviewed by the police, and you have undertaken to give evidence in the forthcoming trial of Harris Kadrick. Pursuant to s.5(2AB) of the Sentencing Act I have taken this undertaking into account in imposing a less severe sentence than I otherwise would have imposed and direct that the undertaking be noted in the records of the Court.

I am mindful of the guidelines contained in s.5 Sentencing Act 1991 and I have familiarised myself with the range of penalties which have been imposed upon persons presented before this court over recent years for this offence.

As with Ms Rees, I consider that a term of imprisonment must be imposed, but having regard to the factors that I have already mentioned I am satisfied that the appropriate course to adopt would be to suspend the service of that sentence in its entirety.

Before I make such an order I am bound to explain certain things to you . Firstly , the purpose and effect of a wholly suspended sentence is to impose a sentence of imprisonment on you but that sentence is not to be served by you unless you breach the order. A breach occurs if you commit another offence punishable by imprisonment during the period of suspension. Punishable means liable to be punished , whether or not it was in fact punished by imprisonment. If you commit such an offence it is very likely you would then have to serve the full period of the sentence that has been passed upon you.

Accordingly, you are sentenced to imprisonment for a period of eighteen months and I direct that the service of the entirety of that sentence be suspended and that the designated period of suspension be a period of two years.

I direct that this declaration and its details be entered in the records of the court.

At a glance

Court

Decision date

Before

Source

Judgment (20 paragraphs)

Parties