STATE OF TASMANIA v TARA JAYNE LEWIS 17 DECEMBER 2019
COMMENTS ON PASSING SENTENCE PEARCE J
Tara Lewis, you plead guilty to aggravated armed robbery, stealing and two counts of aggravated burglary. The crimes were committed in Fingal on the night of 25 March 2019. You were present when two other women, Rose-Lee Clark and Shelly Freeman, broke into two adjoining houses looking for money. You admit that you are guilty of the crimes, but the nature and extent of your involvement is disputed. A hearing was necessary to resolve the dispute. It is necessary for me to find facts for the purpose of imposing sentence. Facts adverse to you must be proved by the State beyond reasonable doubt.
Both houses were owned by Keith Hefford. Mr Hefford was then aged 76. He lived alone in one house and used the other as a place for visitors to stay and to store some of his belongings. Another adjacent premises was used for his second hand goods business. In the course of the hearing I heard evidence from Ms Clarke and Ms Freeman and from you. I was played an audio visual recording of your police interview on 28 March 2019, three days after these crimes. I was asked to have regard to two statutory declarations made by Keith Hefford on 26 and 27 March 2019 as evidence of the truth of the contents of the representations he then made. However Mr Hefford was not called as a witness, so as to relieve him of the trauma of having to re-live these events. That affects the weight, one way or another, I can attribute to his prior representations. I was also asked to have regard to the police interviews of Ms Clarke and Ms Freeman but I give those no weight because statements in them which are adverse to you are not admissible against you.
The first crimes relate to the house Mr Hefford did not live in. Ms Clarke climbed in through a window and opened the back door. She and Ms Freeman went inside looking for money to steal but the only thing stolen was a six pack of beer. The State asserts that you also went into that property. It follows from your plea of guilty to aggravated burglary that you admit that you were a party to entry into a property ordinarily used for human habitation and that, between you and the other two women there was a joint intention to steal from inside. However, you claim that you waited outside that property and did not go inside. The stealing charge to which you pleaded guilty relates to the beer.
The other charge of aggravated burglary and the charge of aggravated armed robbery concern the house next door, in which Mr Hefford lived. Entry was gained by forcing a rear sliding door. Mr Hefford was at home alone and had gone to bed for the night. At around midnight he was woken by noise. At least two intruders entered his bedroom. One of the intruders had a baseball bat. One intruder had a hammer. Someone had a torch. Aggressive demands were made to Mr Hefford for money. When he claimed there was no money in the house he was beaten with the bat and the hammer. While money was searched for, he was struck repeatedly to his legs and arms and head. Someone said that she had a gun and would shoot him if he did not hand over money. An attempt was made to tie his hands with rope but he successfully resisted. No money was found and, when you and the others fled, only his mobile phone was taken.
Mr Hefford used a landline to call his friend who phoned an ambulance. He was taken to hospital at St Marys. On arrival he was anxious, upset and trembling. He had a deep laceration to his scalp about five centimetres long. It was repaired with sutures. He had terrible bruising to his face, torso and thighs. Two lower front teeth and one other tooth were broken. He was in hospital for four days. Since his discharge he has had to have more teeth extracted, and has had to obtain a lower denture for the first time. He has continuing psychological symptoms as the result of the attack, and still experiences pain to his body and head. He is not as mobile as he used to be.
It is not in dispute that you and the others travelled from Launceston to Fingal in your car, leaving sometime around 9.30 pm. Your daughter, aged two, was also in the car. Ms Freeman had lived in Fingal. She knew Mr Hefford, knew about his business and where he lived, and thought he had money which could be stolen. Ms Clarke joined in the plan. After leaving for Fingal you stopped at a Shell service station to use the toilet. A photograph was taken of Ms Freeman and Ms Clarke showing the face covering disguises they planned to later use. You are not in the photograph, but the Crown asserts that you also knew of, and were part of the plan. You claim that you did not know of any planned dishonesty until just before you got to Fingal when Ms Freeman told you for the first time that she intended to steal back rings which she had sold to Mr Hefford and were in the till at his business premises. On your account, when Ms Freeman told you this, she took over the driving because she was familiar with the area and intended to park at her mother’s house, across the road from Mr Hefford. You knew that Ms Freeman and Ms Clarke had a baseball bat with them in the car but you say you accepted their explanation that they had used this as a prop for sexually suggestive photographs they put on the internet for money. On your account, once you arrived in Fingal, you waited behind in the car for a short time before following the others across the road. You say you knew nothing of the intention to enter either of the other houses until after Ms Freeman and Ms Clarke unsuccessfully tried to break into the business premises and then decided to look elsewhere for money. You claim to have waited outside the first house without going inside. You agree that you went inside Mr Hefford’s home and into his bedroom, and that the events I have described occurred, but that you had no weapon, you were not responsible for the direct infliction of any violence, and that your role was limited to looking for money because the others asked you to. You put on gloves which were then provided to you and pulled up the hood of your jumper. You took the mobile phone only because you saw Mr Hefford reaching for it.
I reject your explanation of why you went to Fingal and your claim that you only learned of any planned dishonesty just before you arrived. I find your evidence and account to the police to be so inherently implausible that it can be excluded as a reasonable possibility. Your account was vague and lacking in the sort of detail which accompanies a true account, even allowing for the passage of time and the circumstances of the events. You had been with Ms Freemen for some hours on that day. You gave evidence that Ms Freeman asked you to take her to Fingal. You claim to have agreed because she had no licence and because you had done this for her before, even though it was already after 9.00 pm on Monday night, Fingal was about an hour and twenty minutes’ drive away and your ten year old daughter was home alone. You had already put $20 worth of petrol in your car. You say that this was because it was empty and you had been asked to take Ms Clarke home, even though you did not know where that was. After buying petrol you returned to Ms Freeman’s home at which time your phone was used for two calls to Ms Freeman’s mother, Christine, once at 9.10 pm and once at 9.19 pm. Mrs Freeman lived at Fingal and looked after her daughter’s children. You told the police that you went to Fingal because Christine Freeman asked her daughter to come down. The first of those two calls was made by Ms Freeman to her mother. You heard someone mention the “second bedroom”. The second call was from Christine Freeman. She spoke to you because her daughter was not in the car. She asked you to pass on a message that there were “no cops in Fingal that night.” I reject the innocent explanation you gave for those calls. The police asked you when the plan to break into Mr Hefford’s house was formulated. You told them that when her mother phoned, Shelly Freeman told you that the plan wasn’t to break into his house, it was to break into his shop to get her rings back. It is possible that some of your answers may have been mistaken or out of context, but I am satisfied beyond reasonable doubt that you knew of the plan before you left Launceston, including the plan to use weapons to at least threaten Mr Hefford. There are many other aspects of your account that I do not accept. One example, is your claim that Ms Freeman and Ms Clarke were still outside the business premises when you first saw them after crossing the road, but then you did not see how they got into the unoccupied house because it was dark, that you were standing back, or not present. I am satisfied that you went together with the others into that first house. Ms Freemen and Ms Clarke both said you went inside that house and I believe them. I find that you did so with shared intention to search for the money Ms Freemen told you she believed Mr Hefford had.
I will now deal separately with the question of whether you were directly responsible for the infliction of violence. In his first declaration Mr Hefford gave a physical description of the person, whose voice he thought he had heard before, who entered the room with a torch and struck him with a wooden stick. That was the bat. He described a second smaller person as having a shorter stick covered by a cloth. That was the hammer. He said a third female remained in the hallway shouting threats, including a threat to shoot him. In his second declaration he said he thought he recognised the voice of the person who had struck him with the bat as the daughter of the female who lived across the road, that is, Ms Freeman. By then, however, the identity of that person had been suggested to him by a friend. I think it possible he confused the voices he was describing. Ms Clarke and Ms Freeman both gave evidence. They are persons who are criminally concerned, but both have already been sentenced. It was not suggested that either sentence was reduced as a result of an agreement to give evidence against you and neither can obtain any advantage by incriminating you. My impression was that both were, at least for the most part, honest witnesses although I do not think that Ms Clarke’s evidence is very reliable. She was a reluctant witness. She said that, at the time, she had been using drugs heavily. She was frank about her role but said little about the role of others. She asserted that when she entered Mr Hefford’s bedroom she had the bat which she used to strike Mr Hefford. She could not remember who had the hammer or if anyone else hit him. Her evidence was firm however that you were first into Mr Hefford’s house and into his bedroom. Ms Freeman’s evidence was clearer. She said that you forced open the sliding door at the back of Mr Hefford’s house and that you were first into the house and bedroom. I accept that evidence to be true. She said that she remained in the hallway. That evidence is consistent with Mr Hefford’s account that one of the three intruders remained outside the bedroom. Mr Hefford knew her and she thought she would otherwise be recognised. However she claimed no knowledge of who struck Mr Hefford. I have little faith in that aspect of her evidence. It may be that because Ms Freeman was sentenced on the basis that she remained in the hallway, and was not the other person who entered the room and struck Mr Hefford, that she has an interest in defending that position, even though it can no longer make any difference to her sentence. You were wearing gloves which you said were later given to another person to burn, that you subsequently washed the clothes you were wearing and you were wearing shoes borrowed from Ms Freeman. I think that conduct is also probative of your direct involvement but not necessarily inconsistent with your own account. I think it very likely that Mr Hefford was struck by at least two people. However the evidence falls short of satisfying me beyond reasonable doubt that you were directly responsible for the blows. I am satisfied beyond reasonable doubt that you were a willing and knowing party to a plan to, at least, threaten violence with weapons against Mr Hefford to achieve the joint aim to obtain money. I am not satisfied beyond reasonable doubt that you were party to an advance intention to resort to actual violence to the extent which occurred. However you knew of the weapons. The presence of weapons on a criminal enterprise of this nature made resort to their use an obvious likely consequence. You were directly responsible for unsuccessfully attempting to tie Mr Hefford up. You were looking for money while the violence was taking place and I reject your claim to have been the person who put a stop to it. A couple of days later you presented yourself to the police station to be interviewed, but I am satisfied that, by then, you knew your apprehension was imminent. At first you lied. Then you gave a version which was closer to the truth, but by which, I find, you still sought to minimise your involvement.
This was a very serious home invasion. It was premeditated and planned. You joined in Ms Freeman’s plan to commit the crime and drove to Fingal for the purpose of carrying it out. The victim was a vulnerable elderly man who had been living alone for over 20 years. He was entitled to feel safe in his own home. He suffered a terrifying ordeal, was badly injured and will likely suffer the physical and psychological impact of the crime for the rest of his life.
Ms Clarke was sentenced for her part in the crimes on 3 June 2019. She was sentenced to imprisonment for three years with eligibility for parole after 18 months. The Chief Justice contemplated a sentence of something like five years, but reduced it on account of Ms Clarke’s early plea of guilty, her full co-operation with the police, her lack of prior convictions and her remorse. Ms Freeman had a worse record and was subject to parole and a suspended sentence. She was sentenced to imprisonment for three and a half years on the basis that she was not directly responsible for the application of force, but she was the one who identified Mr Hefford as a target and she actively participated in the planning and execution of the crimes.
You are now aged 30. You have three children aged 12, 10 and 2, all of whom are currently in the care of your mother. Your record is mostly for driving offences although there are some for dishonesty and one for common assault. In 2013 you were given community service and probation for using a computer with intent to defraud, but the circumstances of that offence were very different to this. You have been in custody since your arrest. You have trusted positions in prison and you are undertaking courses in an attempt to improve yourself. You now receive medication for your mental health although that should not reduce your sentence. In light of my findings, and all other relevant matters, I think that you should receive a sentence which is the same as Ms Clarke. Unlike her, you are not to be sentenced on the basis of the actual infliction of violence. You were a knowing party to it and you share criminal responsibility and moral culpability. The factors which counted in her favour to reduce her sentence do not apply as strongly to you. The mitigation from the guilty plea is reduced by the dispute. Although Mr Hefford was not required to give evidence, I am satisfied that your account to the police and your evidence in this Court were aimed at, largely falsely, minimising your involvement. Your claim to remorse is much reduced, although I think that you have now come to appreciate the wrongness of your actions. I will allow the earliest possible parole period. You have been in custody since 28 March 2019.
Tara Lewis, I make a compensation order in favour of Keith Hefford and adjourn the terms of that order to a date to be fixed. You are convicted on all of the charges to which you have pleaded guilty. I impose one sentence. You are sentenced to imprisonment for three years from 28 March 2019. I order that you not be eligible for parole until you have served half of that sentence.