Katie Lee TANNER

AT MELBOURNE

CRIMINAL DIVISION

No. 1533 of 2007

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HIS HONOUR:

1 Keith Herbert Smart, you have been found guilty by a jury of the manslaughter of Katie Lee Tanner on or about 14 October 2006. You were originally charged with the murder of Ms Tanner and were acquitted of that count and found guilty of manslaughter in the alternative. For that offence, I propose to sentence you to a term of imprisonment of eleven (11) years, and to fix a non-parole period of eight (8) years.

Circumstances of the Offence

2 As at Saturday, 14 October 2006, you were living at 22 Courtenay Avenue, Cranbourne North. That property had been the matrimonial home occupied by you and your wife, Jeannette Smart, but you and she had separated some time before and you resided there alone. In or about August of 2006 you agreed that Katie Lee Tanner, a woman considerably younger than you, could reside at the property with you. Ms Tanner had been the partner of your son, David Smart, and that relationship had produced a child, Jayden, in May of 2004. Ms Tanner also had another child Tannika. Your son David was not the father of that child and that fact caused conflict at the time it was discovered, although not with you.

3 The relationship between your son and Ms Tanner failed during 2005 and the failure was acrimonious. You nonetheless maintained what appears to have been a cordial relationship with Ms Tanner, resulting in your agreement that she could reside with you at your house. Ms Tanner and Jayden became boarders at your house and although there was some expectation that rent would be paid to your estranged wife, it is not clear to what extent that occurred. She commenced to live at your premises two months before her death.

4 On Friday, 13 October 2006, Ms Tanner spent the evening at a friend’s house with several other friends before returning to your premises in the very early hours of Saturday, 14 October 2006. Later that morning, Ms Tanner’s father arrived at the address at Cranbourne North and he and his daughter did various things in the Pakenham area, looking for car parts and having lunch at his premises in Narre Warren North.

5 There was some arrangement between Ms Tanner and Brian Moyle that Ms Tanner would visit his premises at Frankston on that Saturday evening and it would appear that during Saturday afternoon she invited you to attend with her. The purpose of the visit appears to have been for Ms Tanner and Mr Moyle to have a discussion about household outgoings and what became of a sum of money that had been given to Ms Tanner by Mr Moyle. You agreed to go with Ms Tanner to Frankston and some time between 7.30 and 8.00 pm you and she travelled to Mr Moyle’s premises in Nepean Highway, Frankston. You and Ms Tanner made that trip in your daughter’s motor vehicle, a blue Ford Meteor. Alcohol was collected along the way, being one dozen cans of beer for you and half a dozen bottles of a vodka mixer drink for Ms Tanner.

6 The evidence indicates that you remained at Mr Moyle’s place until about 10.40 pm on the night of 14 October when you and Ms Tanner returned to Cranbourne North.

7 The verdict of the jury demonstrates that they concluded beyond reasonable doubt that some time after you and Ms Tanner returned to your premises on that evening, you killed Ms Tanner using a rubber mallet. As the Crown has submitted, on that verdict this killing occurred without motive and premeditation. The Crown submits that you should be sentenced on the basis that you had a sudden and violent loss of selfcontrol, leading you to attack her and cause her death.

8 The Crown case was conducted on the basis that after having killed Ms Tanner you retained her body at your house until the following day. On the following day, using your estranged wife’s motor vehicle, you disposed of Ms Tanner’s body by transporting it in the boot of that car. Having disposed of the body at an unknown location you then returned the vehicle to your wife.

9 On Monday, 16 October 2006, Ms Tanner’s father, David Tanner, reported his daughter as a missing person to the police. After a most unfortunate delay, on Friday, 27 October 2006, police officers from the Cranbourne Police Station attended at your premises in Cranbourne North. They examined, among other things, the interior of four rubbish bins positioned in the driveway of the premises. Three of the bins were empty and a fourth contained some garden rubbish.

10 On Tuesday, 31 October 2006, members of the Homicide Squad executed a search warrant at your premises. You were present and during the course of the inspection of your premises you were voluntarily removed to the Homicide Squad office for interview. I will return to that interview shortly. The evidence at the trial was that an inspection of your premises revealed what must be described as small amounts of blood which was later identified as Ms Tanner’s, coupled in some cases with DNA from biological material that originated from you. In the course of the trial the Crown relied on the observation of the forensic expert, Debra Ryan, that some attempt had been made to clean the premises. This evidence was relied upon as indicating that there had been some level of confrontation between yourself and Ms Tanner in the house on the night of Saturday, 14 October 2006.

11 Also during the course of that inspection of your premises a number of items were located in one of the rubbish bins which were positioned in the driveway. Those items included personal items belonging to Ms Tanner, being her mobile phone which had been smashed, her purse, various credit cards and a Centrelink card. The Centrelink card was identified as an item which Ms Ryan concluded had your DNA on it. Also amongst those items was Ms Tanner’s driver’s licence. All of these plastic cards had been cut and a photograph which was amongst them had been torn. Also in the rubbish bin was a rubber mallet with a small amount of blood on it which was confirmed in the evidence as being that of Ms Tanner.

12 It is sufficient to note that at each stage when you have been questioned by police about your knowledge of Ms Tanner’s disappearance you have denied any knowledge of the circumstances. You originally made a witness statement on Sunday, 29 October 2006, to Senior Detective Gaspari. After setting out an account of events leading up to Ms Tanner’s disappearance, you concluded the statement as follows:

I have not seen or heard from Katie since about 10pm on Saturday night the 14th day of October, 2006.

I have no idea where she has gone to. I have since been told by her friend Lee that she was using drugs, which he called Speed, full on. I took that to mean a lot. Some of her other friends have also told me that since.

13 In your record of interview, you denied any knowledge of what became of Ms Tanner or any involvement in her disappearance and death. Your position throughout the trial, which included in your sworn evidence, was that the last time you saw Ms Tanner was after you and she had returned from the visit to Frankston, you leaving her sitting on the couch playing with her mobile phone as you were going to bed on that evening. You gave police an account not only of that night but of your movements on the following day. The Crown submits that you laid a false trail. You did that, the Crown asserts, by lying in your record of interview about whether or not you used your estranged wife’s car on the following day, together with your actions after you had been arrested by the Homicide Squad in doing what was necessary to ensure that any forensic trace of Ms Tanner was removed from the boot of the car you had used for the purpose of disposing of her body.

14 The evidence before the jury disclosed that not long after you had been interviewed by police you made arrangements to replace the boot mat in the Mitsubishi Magna which had been driven by you on Sunday, 15 October 2006. Also you cleaned the boot of the vehicle with degreaser at the rear of premises in Doveton shortly after obtaining the boot mat and then returned the vehicle to your wife. The Crown case was that you considered it was important to do those things since you realised at that stage that you were a suspect in connection with Ms Tanner’s disappearance.

Nature and Gravity of the Offence

15 The jury’s verdict indicates they were satisfied beyond reasonable doubt that for whatever reason you applied such force to Ms Tanner as to cause her death either immediately or very shortly after the attack commenced. On any view of the evidence, she was unarmed when you killed her. The Crown rely on the conclusion which flows from the verdict that you consciously, voluntarily and deliberately caused her death although you did so, as the jury clearly have concluded, without murderous intent.

Culpability and Degree of Responsibility

16 The evidence does not reveal a motive or a reason why you have committed the crime of manslaughter. There is nothing to indicate that you were subjected to any form of provocation and the history of the relationship between yourself and Ms Tanner makes this incident almost inexplicable. The deliberateness and violence of the attack that you have launched against her does, however, place this offence of manslaughter in a very serious category. The offence, however, was not premeditated and the death of Ms Tanner was not something which you intended.

Victim Impact Statements

17 I have been provided with 11 victim impact statements. Portions of some of those statements were read by the learned Crown prosecutor during the sentencing proceedings. These documents tell a harrowing tale particularly on behalf of Ms Tanner’s parents of the trauma of the loss of a child. They particularly emphasise that the grieving process has been frustrated by the fact that Ms Tanner’s body has never been located and, as her father said in his victim impact statement, they “[c]an’t put her to rest and everybody deserves to be buried with dignity and respect”. Ms Tanner’s mother has also suffered medically as a result of the loss of her daughter and her victim impact statement vividly identifies the trauma she has suffered. Other similar statements are contained in each of the documents that have been provided to me and all of them tell of a continuing trauma and devastation by the loss of Ms Tanner.

18 Of course Ms Tanner was herself the mother of two young children and there is a serious, difficult and traumatic consequence for those children to be brought up without any real knowledge of their mother.

19 In addition, because of the fracturing of the relationship within the family and because only one of Ms Tanner’s children was fathered by your son, David, those two young children appear now to be estranged from each other.

Mitigatory Circumstances

20 You were born on 5 October 1952 and you are therefore now 55 years of age. You are apparently one of six children. Both your parents are now deceased. Your education involved attendance at the St John Vianney’s School in Mulgrave for your primary education, and Noble Park Technical School to third form. You left school just before turning 15 and had various jobs until you went to sea at the age of 25. In the career of merchant seaman you rose to the position of chief steward on a number of ships including both interstate and international travel. One of your brothers is also a merchant seaman. You maintained a long term relationship with your wife over some 32 years, although you were not married until 1981 and separated in 2005. You and your wife have not divorced.

21 You have three children aged between 25 and 39 years of age, all of whom gave evidence during the course of your trial. You are now retired, primarily because you suffered a serious knee injury and have been unable to work as a result.

22 You are supported by your family, several of whom were present in court during the trial.

23 The injury to your leg occurred in the year 2000. That injury resulted in a knee replacement and has caused degeneration of the other knee as a result of the way in which you walk and move about. It is suggested that in the future you will need to have another knee replacement. The treatment you need for that condition has apparently been sparse since you have been in custody and you take such pain killers as are provided to you. The presence of a medical condition that would make your time in custody more burdensome than other prisoners’ is of course a matter which I am required to take into account in sentencing you.[1] In addition, I am told that your worker’s compensation benefits have evaporated since you have been in custody.

24 On your behalf, Mr Toohey of counsel produced a number of documents from two orthopaedic surgeons, Mr Robert Howells and Mr Clive Jones, and from Dr N. Berlinski, a specialist. Their reports corroborate the permanent nature of your injury. Mr Toohey also produced references from Mr Mick Doleman, the Assistant National Secretary of the Maritime Union of Australia, and from Mr Richard John Ryan, who gave evidence as to your character during your trial.

25 So far as the evidence at the trial was concerned, as Mr Toohey submitted, up until the point in time when you found yourself charged with murder you had led a decent and blameless life. You have no prior convictions of any kind and you are entitled to be treated as a man of good character. Evidence to that effect was given at your trial.

Aggravating Factors

26 The Crown submits that the evidence that you laid a false trial, destroying any forensic evidence that might otherwise have led the police to you much sooner, is an aggravating feature which I must take into account.[2] Another aggravating feature is, in the Crown’s submission, that you disposed of Ms Tanner’s body, and have failed to disclose its whereabouts.

27 Ms Cannon, the learned prosecutor, cited several cases in support of her contention that failure to disclose the whereabouts of the victim’s body should be regarded as an aggravating factor in sentence.

28 In R v Cavkic, Coldrey J (quoting Cummins J who presided over the previous trial of the accused in that case) said:

Further, in the present case, there is another aggravating factor. It is now more than seven years since Keith Allan died. None of you have availed yourself of the opportunity (which most recently has existed since 14 May 2007) to reveal the whereabouts of Keith Allan’s body. Your silence has necessarily exacerbated the distress of Keith Allan’s friends and loved ones. As Justice Cummins eloquently expressed the situation:

From Monday 29 May 2000, day after day, week after week, year after year, the loved ones of the deceased by not only your actions but your silence have suffered the cruel anguish first of hoping their

 loved one was alive, then not knowing but hoping against hope, then sinking into acceptance of his death, and yet never, even now, being able to give him the dignity of a farewell and a final resting place.^[3]

29 Similarly, in R v Mitchell, Whelan J said:

The fact that your subsequent conduct ... has probably significantly impeded the prospects of locating Andrew Preston’s body is also an aggravating factor. Those who knew and cared for Andrew Preston have had to endure, and will have to continue to endure, suffering as a result of that circumstance.^[4]

30 In R v Tran, Redlich J found that the accused’s conduct in placing the victim’s body in the boot of a car and concealing her whereabouts, coupled with his attempts to distance himself from involvement in her death, were aggravating circumstances. He noted that the accused denied any involvement in the victim’s death to her family, and joined them in futile attempts to locate her. In an interview with the police, the accused in that case lied about the last time he had seen the victim. As a consequence, by the time the victim’s body was found it was badly decomposed.[5] Throughout this period after the commission of the offence, his Honour considered that the accused “showed little remorse for [his] conduct being more concerned to protect [himself] and conceal [his] involvement in this crime”.[6]

31 In R v Serrano, Kaye J held that:

The gravity of the conduct of the prisoner is aggravated by his conduct following the murder. The prisoner removed Ms Trailovic’s deceased body from her home, and hid it in a location which has still not been discovered. He took further elaborate steps to endeavour to remove and conceal evidence which would have implicated him in the murder of Ms Trailovic in her own home. As I stated, he cut up a large section of the carpet, and managed to dispose of it. He hid the chair leg with which he had beaten Ms Trailovic to death, and also hid her spectacles, which had been damaged in the assault. He concocted and maintained a false account to friends, neighbours and acquaintances, and then to the police. His conduct in doing so, and his demeanour during the three recorded interviews which he had with the police, demonstrates that he has no remorse at all for his crime. Further, as the authorities indicate, his conduct in concealing the death and the body of Ms Trailovic, and endeavouring to lay a false trail in relation to her disappearance, aggravates the gravity of his wrongdoing. That conduct was intimately connected with the murder by the prisoner of Ms Trailovic. It was part and parcel of the offending, and as such added to the seriousness of the offence.^[7]

32 The Crown also referred me to the case of R v Bangard, where the Court of Appeal upheld the learned sentencing judge’s finding that the false trail laid by the appellant after the commission of the crime was an aggravating factor, “involving as it did the arrangement of the deceased’s body to suggest that she had been sexually assaulted and the attempt to cast suspicion on a number of entirely innocent persons.”[8]

33 Following the verdict of the jury and in submissions made on sentence, your instructions to Mr Toohey have been that you are not guilty of any offence. There is therefore no remorse on your part for the killing of Katie Lee Tanner. There is no acknowledgement by you of any wrongdoing and the desperate plea on behalf of Ms Tanner’s family for you to reveal the whereabouts of her body have gone unrequited. One can only imagine the agony that that will cause that family for the rest of their lives or until somebody reveals the location of Ms Tanner’s body.

34 While you sought to convey, through counsel, your sadness and concern to Ms Tanner’s family, Ms Cannon submitted that given the jury verdict in your case, and given your refusal or failure to disclose the whereabouts of Ms Tanner’s body, I ought to reject those sentiments as being “nothing more than selfserving and completely flying in the face of the prisoner’s actions.”[9] I note in this respect the decision of Coldrey J in R v Sharp, where his Honour held that despite the assertion of the accused in that case that he was innocent of the charges, his failure to acknowledge his responsibility for the killing deprived him of the benefit of any genuine remorse for the offence. Further, he said, “[e]xpressions of regret for Mr Wilkes’ death, to which you apparently subscribe, carry no weight in the context of your claim that you had no role in that death.”[10]

35 Despite the fact that you maintain your innocence of the killing of Ms Tanner throughout the trial, as you are entitled to do, I am bound to sentence you on the basis that the jury found you guilty of causing her death. Thus, your failure to take responsibility for your involvement in the offence must be taken to go to the question of remorse, and your prospects of rehabilitation.

Current Sentencing Practises

36 The maximum penalty for manslaughter is 20 years’ imprisonment, having been increased from 15 years’ imprisonment in 1997.[11] I am required to have regard to current sentencing practises, and it has been observed by members of this Court that this is a factor “about which views are likely to differ”.[12] The Court of Appeal in R v AB (No. 2) said:

The maximum sentence provides a guide as to the seriousness with which a particular offence should be viewed. It serves as a directive to the courts on how to weigh the gravity of such criminal conduct, the maximum penalty itself being prescribed for the worst class in the offence in question. Recently in R v Sibic, this court referred to the following passage from the decision of the High Court in Markarian v R, where the majority said:

[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.^[13]

37 As is often noted, the crime of manslaughter covers a very broad range of human conduct which, in turn, will have significantly varying degrees of moral culpability. Having considered that range of sentences, I return to the obvious conclusion that in this case you have killed Ms Tanner in circumstances where your acts were conscious and deliberate although the jury were not satisfied that your intent was to kill or cause really serious injury.

Conclusion

38 I regard your offence as a serious case of unlawful and dangerous act manslaughter. Consistent with the verdict of the jury, I proceed on the basis that your offence did not involve murderous intent. Nonetheless, the jury have found beyond reasonable doubt that you took the life of a defenceless young woman for which you bear a high degree of culpability and responsibility. The sentence I impose on you must express the denunciation of the community and provide adequate general deterrence. I must also give weight to the mitigatory considerations to which I have referred, including your good previous character and the hardship which, at your age and in your state of health, imprisonment will impose on you.

Sentence

39 On the count of manslaughter of Katie Lee Tanner of which you have been convicted by a jury I sentence you to eleven (11) years’ imprisonment. I set a nonparole period of eight (8) years commencing this day. I declare that the period to be reckoned as already served under the sentence is 555 days inclusive of today’s date. Finally, I will make the retention and disposition orders which the Crown has applied for and which you have not opposed.

Fears for missing woman
Kate Hagan - The Age
November 5, 2006

Victorian POLICE fear a 21-year-old Cranbourne mother of two, missing for three weeks, has met with foul play.

Katie Lee Tanner was last seen by her ex-partner's father, Keith Smart, at the home they share in Courtenay Avenue, Cranbourne North. Katie and her son Jayden, 2, were boarding with Mr Smart when she disappeared.

Her parents yesterday made an emotional plea for anyone with information about her disappearance to come forward.

Her voice breaking, Sharon Tanner described Katie as a good daughter. "If anybody knows anything out there, ring the police and let us know," Mrs Tanner said. "We love her and we want her back."

Mr Smart has told police he last saw Katie about 10pm on October 14 when she went to bed after they had attended a party together in Frankston.

Neighbours heard raised voices outside the house about the same time.

Acting Senior Sergeant Tim Argall, of the homicide squad, said Katie's disappearance was out of character. "We fear Katie may have met with foul play, and that may have happened at or in the vicinity of the house in Courtenay Avenue."

Mr and Mrs Tanner saw Katie at their Narre Warren home on the afternoon of her disappearance. She spent time with her daughter Tammika, 1, who lives with her grandparents, while son Jayden was having an access visit with his father, David Smart.

Information to Crime Stoppers on 1800 333 000.

Police fear mum dead
Kellie Cameron November 05, 2006 12:00am
Article from: Sunday Herald

A MURDER probe has been launched for a missing Cranbourne mother of two.

Katie Lee Tanner, 21, was last seen on October 14 at the house she shared with her former de-facto's father, Keith Smart.
Mr Smart, the last person to see Ms Tanner, has denied any involvement in her disappearance.

Police and Ms Tanner's distraught family yesterday made an appeal for information.

Acting Senior Sergeant Tim Argall said Ms Tanner went to a friend's house with Mr Smart for drinks on October 14.

"It is believed Katie and the paternal grandfather of her child, Jayden, returned home about 10pm," he said.

"She hasn't been seen or heard from since."

Ms Tanner's mobile phone and purse were found at her address on Courtenay Avenue. Her bank account has not been used.

Sen Sgt Argall said an argument between a man and woman was reported to police at midnight on the night of Ms Tanner's disappearance.

Ms Tanner's family said the disappearance was out of character and have made an emotional plea for information.

"It's not like her to disappear like this," her father, David Tanner, said.

"If she was stuck somewhere, she'd call us."

Last Update: Saturday, November 4, 2006. 8:43pm (AEDT)
Police hold 'grave concerns' for missing mother - ABC

Victorian police say they hold grave concerns for a missing Cranbourne woman.

Homicide detectives are investigating the disappearance of 21 year old Katie Lee Tanner, from a house in Courtnay Avenue, that she shares with her ex-father in law.

Acting Senior Sergeant Tim Argall says police are trying to trace her movements the night she disappeared on October 14.

"Katie visited some friends in the Frankston area where she had a few drinks

"It is believed that Katie and the paternal grandfather of her child, Jaiden, returned home about 10:00pm to the Cranbourne house and she hasn't been seen or heard from since."

Sergeant Argall says her mobile phone, purse and other belongings were found at the house.

"Neighbours have reported hearing raised voices in the street on that Saturday evening, we are unsure whether that's related to Katie's disappearance but it's certainly an avenue we are pursuing."

Family plead for news on daughter
November 04, 2006 05:14pm
Article from: AAP - Herald Sun

THE family of a young Melbourne mother missing since last month have appealed for public help to find her.

Police suspect foul play in the disappearance of Katie Lee Tanner, 21, from Cranbourne in Melbourne's south-east, who was last seen on October 14.

Ms Tanner, mother of two-year-old Jayden and one-year-old Tammika, is thought to have disappeared from the Courtenay Avenue home she shared with Keith Smart, the father of her ex-partner David Smart.

Today, Tanner's parents, David and Sharon Tanner, made an emotional appeal to the public.

"Anyone who knows anything about Katie's disappearance, could (you) contact someone? We just think it is not like her to disappear like this," said Mr Tanner.

"She was a good daughter. We would go out once a week, or once a fortnight," said Mrs Tanner.

"If anybody knows anything out there ... ring the police and let us know. We love her," she said.

Police said that on the night of her disappearance, Ms Tanner had been at a party in Frankston with Keith Smart and friends. Her son Jayden was with his dad, David Smart, and Tammika was with David and Sharon Tanner.

Acting Senior Sergeant Tim Argall from the Homicide Squad said police had grave concerns for Ms Tanner.

He said her mobile phone, purse and other personal items were at her home, so it was believed she disappeared at or near her home.

Ms Tanner was last seen at about 10pm (AEST) on the Saturday.

Neighbours reported hearing raised voices coming from the street nearby about midnight. The voices belonged to a male and a female.

David Tanner reported her missing on Monday or Tuesday, Acting Sen Sgt Argall said.
There was no sign of a forced entry to the home.

"We fear that Katie may have met with foul play, and that may have happened at, or in the vicinity of, the house," he said.

Police have ruled out any connection between Ms Tanner's disappearance and the discovery of a woman's body at a lake in central Victoria on Thursday night.

Anyone with information about the disappearance has been urged to contact Crime Stoppers on 1800 333 000.

Man charged with murder over missing mum
November 06, 2006 08:57pm
Article from: AAP

MELBOURNE detectives have charged a man over the murder of a missing Cranbourne woman.

Keith Herbert Smart, 54, of Cranbourne, has been charged with the murder of Katie Tanner.

A Victoria Police spokesman said Smart was remanded in custody and would appear at Melbourne Magistrates Court on Wednesday.

The 21-year-old mother of two was last seen about 10pm at her Courtenay Avenue home on October 14.

Police said the night of her disappearance Ms Tanner had been at a party in Frankston before she returned home.

Neighbours reported hearing raised voices coming from the street near her home about midnight. The voices belonged to a male and a female.

Ms Tanner's body has not been found.

Court hears of car clue

Article from:

Katie Bice

June 26, 2007 12:00am