STATE OF TASMANIA v STEPHANIE ROSE LEWIS-GUMLEY ESTCOURT J
COMMENTS ON PASSING SENTENCE 30 MAY 2019
The defendant, aged 21 at the relevant time, has been found guilty by a jury of one count of unlawfully injuring property, namely by denting a door and dislocating a wing mirror on a taxi owned by Pardeep Singh, and one count of assaulting Mr Singh by kicking and punching him and grabbing him and throwing him to the ground.
The offending occurred at about 10.30 pm on 19 May 2017 at the McDonald’s Sandy Bay drive through. The defendant’s acts took place in company with her partner, Alexander Shepherd, then aged 25 years.
To the extent of the assault particularised in the indictment, the State submit that the defendant is liable as a principal offender, and/or as an aider and/or abettor of any of the acts particularised in the indictment that were committed by Mr Shepherd, after Mr Shepherd first assaulted Mr Singh following (as will be seen is my finding), Mr Singh punching the defendant.
On 19 February this year Mr Shepherd pleaded guilty to two counts of assault and was sentenced by Brett J to a 10 months’ suspended sentence and 168 hours of community service, on the following basis:
“The assaults arise out of the same circumstances. You and your girlfriend, Ms Lewis Gumley, had caught a taxi home after an evening out. You asked the taxi driver to call into a takeaway food drive-through store during the journey so that you could collect some food. While you were waiting for the food, Ms Lewis Gumley vomited out of the taxi window. The taxi driver then told you that he was not going to take either of you any further because she had vomited. Ms Lewis Gumley reacted angrily and racially abused the taxi driver. You both told him that you were not going to pay the fare. Ms Lewis Gumley then attacked the body of the taxi, causing damage to it.
It was at this point that you perpetrated the first assault. You took hold of the driver, took him to the ground and punched him to the head numerous times. Ms Lewis Gumley then kicked him to the head. The prosecution accepts that you are not responsible for this act. When the driver got up, you again threw him away from the taxi and continued to punch him. He lost consciousness for a short period of time.
You then drove his taxi to another part of the McDonald’s car park. While you were doing this, Ms Lewis Gumley again assaulted the driver. Her attack rendered him unconscious, but the prosecution accepts, again, that you are not responsible for her actions. However you did take hold of the complainant’s motionless body and dragged it to the taxi. You attempted to seat the driver in the driver’s seat of the taxi. These actions constitute the second assault. A passing driver enquired if you needed help but you declined the offer, falsely claiming that the taxi driver was drunk. This was a callous and reckless act. You had no way of knowing how badly this man was injured, and your handling of him, and refusal to accept assistance, in my view aggravates the seriousness of your conduct. However, on the other hand, at least you and your co-offender remained at the scene until police arrived.”
Having had the benefit that Brett J did not have, namely of hearing the evidence of all of the eyewitnesses as well as evidence from Mr Singh and the defendant, and also the CCTV footage from McDonald’s, I do not accept that the factual basis for the defendant’s offending ought be as described by Brett J.
It is of course for me to find the factual and legal basis for the defendant’s offending, so long as it is consistent with the jury verdicts. I should only find facts unfavourable to the defendant if I am satisfied of them beyond reasonable doubt, and I should find facts favourable to her on the balance of probabilities.
Having regard to all of the evidence, I am satisfied beyond reasonable doubt that the defendant, after refusing to pay the fare because Mr Singh proposed to take them no further because of a small amount of vomit on the outside of the rear driver’s side door of his car, got out of the taxi in compliance with Mr Singh’s requirement to do so, and took photographs of the front of the taxi on her mobile phone so that she could report the incident to the taxi company. I am satisfied on the balance of probabilities that upon her doing so Mr Singh became angry and punched her in the left eye, most likely during an attempt to grab her phone or remonstrate with her. I find that it angered him that the defendant was taking photographs of his car.
I am also satisfied on balance that the defendant did not racially abuse Mr Singh. After making due allowance for and language difficulties experienced by Mr Singh, I nonetheless did not find his evidence convincing on that point, and I suspect that he was embellishing his version of events in order to explain why he became angry enough to confront the defendant in the way he did, although he of course denied punching her.
I prefer the evidence of the defendant on that point. I found her statement to police in her recorded interview, namely “I am not a racist person” to be convincing and her demeanour persuasive. Her answer in cross-examination on the trial as to whether she had done so, namely, “no way”, was also convincing and her demeanour persuasive. She was not further pursued on that answer and there was no independent evidence to gainsay her.
As to being punched, one of the attending police officers, Constable Tew observed on the night, at the scene, that the defendant had some swelling to her left eye and that she explained to him that she had got that swelling when the taxi driver had punched her.
The final position of the first of the three eyewitness, Mr Lucas, on the issue of whether at least one of Mr Singh’s punches connected with the defendant’s face, was that he couldn’t remember. He said “I don’t say that it did or didn’t.” He was asked whether it was difficult for him to tell what was actually going on, because of how far he was away and he agreed that it was.
The second eyewitness, Mr Thurston, when asked whether he saw Mr Singh punch the defendant, was only able to say “No, I don’t think (sic).
The final eyewitness, Ms Laurenson, who I found to be the most careful of the independent witnesses, was asked whether she remembered the defendant walking to the front of the taxi and holding her phone up as though she were taking a photo or a film of the taxi and her answer was “No, no sorry, I don’t.” Clearly that had happened because the photos were recovered by police from the defendant’s phone.
Ms Laurenson was then asked whether she remembered seeing the taxi driver, punch the female. Her answer was “No”. So Ms Laurenson unfortunately was unable to assist me on this issue.
The McDonald’s CCTV footage is certainly not inconsistent with the defendant being punched by Mr Singh, and her head throw back by the blow.
I find that after being punched by Mr Singh, the defendant then kicked the driver’s side door of the taxi, denting it, and then kicked the driver’s side rear view mirror, detaching it from its mounting. Having been struck by Mr Singh and the situation escalating from her taking photos of the taxi to an angry argument, involving pushing and shoving, I find that what followed next was that Mr Shepherd got out of the taxi and in some misguided way decided to stop the ongoing argument by grabbing Mr Singh and throwing him to the ground. The defendant then kicked Mr Singh to the head. I cannot be satisfied beyond reasonable doubt that it was more than once.
I am unable to be satisfied to the requisite degree that the defendant aided or abetted or instigated Mr Shepherd in throwing Mr Singh to the ground this first time as on balance she is unlikely to have appreciated his response to her altercation with Mr Singh. The State does not suggest otherwise.
I am satisfied however that Mr Singh then got up and started to take a video on his phone but fell to the ground again after being punched by the defendant and Mr Shepherd. I am unable to find who punched Mr Singh with what force or how many times but the defendant is in this instance not only legally responsible for her own acts but also those of Mr Shepherd.
I am also satisfied beyond reasonable doubt that after Mr Singh went to the ground the second time the defendant kicked him again to the head.
While not losing sight of the defendant’s legal responsibility for Mr Shepherd’s actions as mentioned, I cannot say whether any of the defendant’s punches or kicks were with any particular force.
They may not have been. She is a slightly built young woman and that Mr Singh sustained, an approximately four centimetre diameter hematoma to left periorbital region/temporal region with a small overlaying abrasion, could, according to the medical evidence on the trial, have been equally caused by Mr Singh hitting the ground or a concrete wall, as much as by any punches or kicks.
Fortunately Mr Singh’s injuries were minor and he was treated conservatively when taken to hospital. He was observed in the emergency department for a period of four hours, was given analgesia and had an ice compression placed to the soft tissue injury. He was also given a tetanus injection.
It is relevant though that the assaults had a significant psychological impact which impact had been ongoing as of the date of his victim impact statement at least, and he was unable to work for a period of time, which caused him financial loss and had an adverse impact on his studies.
The defendant is now 23 years of age. She was born in Hobart and has no siblings. Her father left the relationship with her mother when she was an infant and she has had no real contact with him at all, being raised by her mother who is a nurse. Due to her mother’s shift work, her maternal grandparents looked after her during her childhood.
I accept the submission made on the defendant’s behalf that she is in almost every regard a young person who gives back to her community in ways that are well beyond what is often seen and well beyond paid employment, that is, in voluntary roles and in important roles assisting others who are unable to assist themselves, or in teaching others, including the most vulnerable young people and elderly people in our community. The State did not suggest otherwise.
The defendant completed her pre-tertiary education at the Friends school to Year 12. She is currently an undergraduate at the University of Tasmania engaged in a Bachelor of Nursing degree, with her hope to be a registered nurse. She is an excellent student. She was one of very few selected from the UTas undergraduate course to go to the Royal Prince Alfred Hospital earlier this year to participate in training at that hospital.
Quite apart from her excellence as a student, she has, since she was 14, been employed as well as going to school. She started work at a Legs and Breasts outlet in North Hobart after school as a 14-year-old, and has worked in other retail outlets achieving supervisory roles even as a student. My instructions are that she then took up paid employment when she left year 12 at a Banjos outlet where she was also in a supervisory role. She worked there from 5 am until 1 pm each day, and then worked as an early childhood educator at an after school facility on the Eastern Shore from 2.30 pm to 6 pm each day.
More recently while she has been studying at university she has worked at the Royal Hobart Hospital, a position that she still holds. She is an Assistant in Nursing. Her role there involves helping nurses with their patients, but also sitting with high-needs patients such as psychiatric inpatients, dementia patients and others, to basically care for them, talk to them and keep them calm wherever possible while they are awaiting treatment or recovery.
She has also combined that employment with working at New Norfolk in an aged care facility. She has also volunteered at that age care facility, going there outside of her hours of employment on a volunteer basis to sit with and talk to the elderly patients. Her maternal grandfather has also been recently diagnosed with Alzheimer’s and she has been assisting with his care.
The defendant is a champion horse rider in eventing and she has also taken that interest outside of her own participation, by training children to ride as well as training young people and inexperienced people to train their own horses.
The defendant has no prior (or subsequent) convictions of any kind.
She is due to graduate from the University of Tasmania this year however, unless she can persuade the Australian Health Practitioner Regulation Agency that she is a fit and proper person to be registered as a nurse despite this aberrant offending, she will lose the benefits of her chosen career and will have wasted her studies. I cannot however take that into account in sentencing. That was made clear by Crawford CJ in sentencing a young 29 year old lawyer on 9 October 2009 to a sentence of 4 months’ imprisonment wholly suspended on condition that he be of good behaviour until 9 October 2011. His Honour said this:
“He was in a highly intoxicated state at a Hobart bar on the night of 3 April last. He had been refused more alcohol. Because of his drunken condition, he concerned and upset a man and his wife, and another woman, at whose table he sat. Eventually, and after first making an effort to assist him, one of the women suggested that he move on. He used offensive and insulting language to her and the man also suggested that he leave. There was a period of about half a minute when nothing happened. Then the accused got up from his chair, walked to the man and, without warning, delivered a roundhouse right handed punch to the side of his face. Following that he quickly walked away, without concern for the man. When police approached him later that month, he declined to be interviewed. However, he has pleaded guilty at a fairly early stage.
The punch broke the man’s nose and fractured his left orbit. Unsurprisingly, he sustained a black eye and facial swelling. He had a week off work. He had to return to hospital because of an infection which took two weeks to recover. Presently he has some nerve damage to his face, resulting in two or three numb teeth and part of his jaw being numb. There is a possibility that he will require dental work.
The accused is 29 years old. He is employed as a legal practitioner. His employer and a senior counsel have spoken well of him as a practitioner and from what has been said by them and another referee, the conclusion I must come to is that the crime was out of character. He appears to be of good reputation. He has no record for offending. It seems likely that the effects of the alcohol he had consumed on this occasion were made worse by medication he had also consumed. Of course that is not any form of excuse for what he did.
There is a possibility that the crime and its consequences may affect his future in the legal profession and his ability to travel overseas. They are issues that will need to be resolved by others later, but they should not affect the punishment that is appropriate for his crime.” (My emphasis)
As it transpired the legal profession disciplinary body on 19 April 2011 imposed a suspension from practice on Mr Saric for the balance of the period of suspension of his prison sentence. But these things cannot be foretold.
The defendant has the support of her family who I note have attended court during the trial. I have received two character references, both of which were written with knowledge of the defendant’s offending, and both of which speak very highly of her.
A retired Senior Public Servant, Siobhan Gaskell who has known the defendant since she was a baby, describes the defendant as mature and well balanced, and intelligent and caring and compassionate, with incredible patience caring for her grandfather who has developed Alzheimer’s.
The second referee, Nicola Zalstein states:
“I am writing to acknowledge Stephanie’s good character, understanding she is answering matters before the Court, which seem so much at odds with the young lady my family has come to know.
My family and I have only observed Stephanie to be kind, devoted, diligent, caring and entirely trustworthy when looking after our children and household this last 5 years as a baby sitter and house sitter without lapse or error”.
Leaving the current offending to one side it is obvious that the defendant is a person of exceptionally good character, and that her conduct on this occasion was entirely out of character. The fact that she was affected by alcohol, although coherent according to Constable Tew, does not excuse her conduct in anyway, but coupled with being punched by Mr Singh, it would explain her angry reaction. Legally she was by no means entitled to retaliate in the way in which she did, but the perceived offence to her puts her unjustifiable response into a context.
I accept that the defendant has learned from this experience. This was a rare combination of circumstances, in my view. I am told, and the State does not suggest otherwise, that she is not a drinker, she does not take drugs and she is not a violent person. Given all of these factors, it is unlikely she will offend again in this way, or any other for that matter. Accordingly denunciation and general deterrence are more important sentencing considerations in this case than any need for personal deterrence.
I need to consider the defendant’s relatively young age at the time of this offending and the question of parity with the sentence passed on her co-offender, bearing in mind her accessory liability.
Unlike Mr Shepherd of course the defendant is not entitled to the benefit of an otherwise appropriate penalty for having pleaded guilty and demonstrated remorse for her conduct. Having said that the defendant was entitled to have the allegations against her proved. However, unlike Mr Shepherd, the defendant has only one count of assault to answer and not two and moreover, part of the particularised assault was offending for which the defendant was not responsible as a principal offender but as an aider or abettor.
As Brett J commented in passing sentence on Mr Shepherd the objective seriousness of the defendant’s conduct is relatively high. I do not however, with respect, accept his Honour’s comment that the defendant’s conduct was “marginally more serious” than that of Mr Shepherd, because as well as punching Mr Singh she kicked him to head.
As I have observed, the force of the defendant’s kicks cannot be determined and it is well known that punches as well as kicks, even single punches, can cause serious injury or even death. On the evidence that I have had the benefit of hearing in full, Mr Shepherd delivered the majority of the punches, and it was he who threw Mr Singh to the ground.
This assault by the defendant was carried out at night, in company with another, in a public place, overseen by others and on a person who was vulnerable because of his occupation. In those circumstances the only sentence that will sufficiently denounce the defendant’s offending and deter others is one of imprisonment. However, in view of all of the matters to which I have alluded, including the defendant’s otherwise excellent character and record, her young age at the time, the clearly aberrant nature of her offending and the fortunately, relatively minor nature of Mr Singh’s injuries, any prison sentence should be wholly suspended.
Taking all matters into account the defendant is convicted of one count of unlawfully injuring property and one count of assault. I impose a single sentence of 8 months’ imprisonment wholly suspended on condition that she commit no offence punishable by imprisonment for a period of 12 months, and I make a community correction order that contains, in addition to the statutory core conditions, a special condition that the defendant must within the next 12 months satisfactorily perform community service as directed by a probation officer or a supervisor for a period of 147 hours.
I make an order for compensation in favour of Pardeep Singh which is adjourned to a date to be fixed for assessment.