Director of Public Prosecutions v Smart

[2018] VCC 1867

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT WARRNAMBOOL
CRIMINAL JURISDICTION

CR 18-00537

DIRECTOR OF PUBLIC PROSECUTIONS

v

BEN SMART

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Warrnambool
DATE OF HEARING:
DATE OF SENTENCE:	14 November 2018
CASE MAY BE CITED AS:	DPP v Smart
MEDIUM NEUTRAL CITATION:	[2018] VCC 1867

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hevey
For the Accused	Ms B. Northey	Victoria Legal Aid

HIS HONOUR: 

1Benjamin Smart, you and the victim have been in a relationship for approximately 13 years.  In recent years the victim had been in poor health and you were her - you were registered as her carer.  On 4 September 2017, you were released from prison having served an eight-month sentence.  You resumed living with the victim in Camperdown.  You were required to comply with a 12-month community corrections order. 

2On 8 October 2017, you accused the victim of seeing other men while you were in prison.  She responded to this allegation by saying, "The accuser was usually the cheater".  This enraged you and you attacked the complainant, dragging her off the bed by her feet and dragging her along the hallway.  She attempted to get away from you but you punched her to the face and head repeatedly.  You grabbed her by the back of her head, pushing her head into a mirror.  You continued to punch her.

3Although you were violently attacking her, when the phone rang, you spoke on the phone.  It allowed the victim to take the opportunity to go to the front of the house and climb out a bedroom window.  She had to then climb over a number of neighbouring fences before getting to the house of someone she knew.  You were yelling out trying to locate her.  The acquaintance of the victim took the victim inside the house and rang 000 for ambulance and the police.  The victim was taken for treatment to the hospital in Warrnambool.

4The radiological assessments undertaken at the hospital confirmed the following injuries:  fracture of the left maxillary sinus, that is the cheek space, the depression of the right zygomatic arch, that is the cheek bone, which may represent a fracture, and non-displaced fractures through the right mandible, that is the jaw.  A small focus of extra-axial density over the left frontal lobe that is equivocal in nature for a small subdural or tiny volume of subarachnoid haemorrhage, that is a bleed on the brain that was - there was some sense that may have occurred.

5The scalp haematoma on the right, suborbital ridge, that is the bony ridge corresponding to the eyebrow.  Haematoma is a bruise.  Left periorbital soft tissuing, that is around the eye, and possibly fractured teeth.  The clinical examination that was undertaken noted that she had swelling around both eyes, multiple bruising over her shoulders and down her arms, grazes on the right elbow, jaw malalignment and drowsiness.  The victim was advised to follow up with the maxillofacial department of the Geelong hospital following her discharge from hospital, however, she did not attend this follow up appointment or follow up with any other medical professionals for that matter.

6Photographs were taken and I have examined them.  They show dreadful bruising and injury.  The above catalogue of injuries revealed by the X-rays and the scans, taken with the clinical observations and the photographs, make it crystal clear that your attack upon the victim involved very significant force.  It is to be noted that you are a big man.  It was a sustained and brutal attack resulting in facial fractures.  A small and perhaps equivocal brain injury also reveals just how risky this violent conduct was.

7The extent of the injuries make this a very serious example of the crime of intentionally causing injury.  Although the victim did not want you charged, you were arrested on 11 October 2017, and gave an account that while both of you and the victim were affected by ice, she had gone to grab you and then you, "Flogged her".  You said that you hit her three to four times with an open hand but you did not believe you had punched the victim.

8This minimisation is concerning.  Your lack of insight makes it important to give weight to deterrence to you and to the need to protect women from you.  On that, the importance of protection of the community and deterrence is further emphasised by your entrenched propensity to attack and hurt your domestic partners.  On 2 November 2004, you were sentenced to two months' imprisonment with one month suspended.

9The summary of that offending, which was provided to me, outlines that in August 2004, you grabbed your then partner by the head and neck area and pushed her against a wall and thereafter you pushed her over a dining table that had been turned over.  All this conduct was in breach of an intervention order that had been taken out to protect her and stop your violence.  The pattern of showing disdain for intervention orders continued.

10On 9 August 2005, you were sentenced to 12 months with a non-parole period of six months with two unlawful assault, intentionally causing injury, as well as wholly restoring a suspended sentence that was imposed earlier.  In the summary of that offending, it reveals that like the current offending, you accused that victim of seeing other men.  You spat at the victim, grabbed her by her throat and pushed her against - back against furniture and grabbed her by her hair and ears, banging her head back against a wall.

11You had both hands around her neck, squeezing her neck, making it difficult for her to breathe.  As can be seen, your violent offending towards your partners at the time was escalating.  In October 2005, you received three months' imprisonment for breaching an intervention order and unlawful assault.  On this occasion you were arguing over the use of a mobile phone, which caused you to hit the victim, your then partner to the head, 10 to 12 times causing both eyes to swell shut.

12The victim sustained a cut under her left eye which was bleeding.  She ran from the house but you coerced her back.  There were other occasions of violence towards her, causing a black eye.  In August 2009, you were sentenced to one year imprisonment with a non-parole period fixed at four months for, amongst other things, recklessly causing injury.  This sentence was set aside on appeal and you received a term of six months' imprisonment that was wholly suspended.  You ultimately breached that suspended sentence and it was wholly restored.

13There are other troubling prior matters involving criminal damage, violent gaol offences, as well as dishonesty and driving offences.  As noted, you were sentenced to an eight-month term of imprisonment just prior to committing the offences that are now before me.  And in addition to that eight months you were to undergo the community corrections order for 12 months upon your release.  Thus at the time of this offending, you were the subject of a community corrections order.  It is clear that you have a concerning criminal history that dates back to 1994.  You have been given opportunities with community corrections orders and suspended sentences.  Most of which have been breached.

14However, my principal concern is your entrenched propensity to commit violence against your domestic partner.  This is a matter that I must consider in assessing the gravity of your offending, as well as matters relating to deterrence to you, protection of the community from you and your overall prospects for rehabilitation.  In this regard, I need to consider and refer to the important decision of the High Court of Australia, the Court of Appeal of Victoria and the highest appellate courts in other states, that explain how in modern times this scourge of domestic violence is now viewed by the courts and the community as just that, a serious scourge.

15Firstly, in 2001 in the New South Wales court of criminal appeal, the following was said but in the matter of Queen v Edigorov.  Chief Justice Wood said this:

"Violent attacks in domestic settings must be treated with real seriousness.  Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically or otherwise to enforce their silence and their acceptance of such conduct.  In truth, such conduct is brutal, cowardly and inexcusable and the courts have a duty to ensure that is adequately punished and that sentences are handed out which have a strong element of personal and general deterrence".

16Later in New South Wales in 2006 in the matter of Hammoud, it was said:

"An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent and may escalate over time.  Domestic violence typically involves the violation of trust by someone with whom the victim shares or has shared an intimate relationship".

17In 2007, in the Court of Appeal in Victoria, Justice Dodds-Streeton observed the following in the matter of the DPP v Smeaton, when she said:

"Violence, in particular violence by men against women as a means of control in current relationships or in relationships which have ended is a prevalent and even critical social evil.  As in the present case, the perpetrators, not uncommonly express remorse immediately after a violent assault".

18Her Honour went on:

"That sufficiently expresses the deep abhorrence excited by a violent and brutal physical assault by an adult male and a slight young woman, which is in no degree abated by the fact of a prior relationship between the victim and the perpetrator".

19In 2014, the Court of Appeal in Victoria spoke in like terms in Pusiniz V The Queen.  The court said:

"Historically, perpetrators of family violence were rarely prosecuted, even when offenders were convicted of such offences the often received lenient sentences.  Fortunately the criminal law now gives greater recognition to the devastating effects of family violence".

20The court went on:

"This makes both specific and general deterrence very important factors in sentencing men who assault their partners".

21The High Court in 2013 in Mundea, in Western Australia recognised the role of the courts in dealing with domestic violence and gave appellate authority or approval to significant weight being attached to specific and general deterrence, denunciation and protection of the community.

22The High Court again took that approach in the sentencing decision of The Queen v Kilic in 2016.  That case involved a single incident of very serious violence against a previous partner.  That case analysed the role of current sentencing practice.  In the sentencing task of the judge of Victoria, the court said, paragraph 21:

"The requirement of currency recognises that sentencing practices for a particular offence or type of offence may change over time, reflecting changes in community attitudes to some forms of offending.  For example, current sentencing practices with respect to sexual offences may be seen to depart from past practices by reason (indistinct words) of changes in understanding of the long-term harm done to the victim.  So too may current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations. 

23Finally, in the comprehensive analysis of the topic undertaken by the Victoria Court of Appeal in late 2017 in Kalala v The Queen, the following was said and I need to quote at some length.  What was first said was:

"It is well recognised that the prevalence of a particular type of crime may be relevant in the sentencing consideration.  In 2016, the Royal Commission in to family violence reported that although it was not clear whether the incidence of family violence was increasing, there had been a marked increase in the reporting of it.  This is reflected in family violence incidence data for Victoria".

24The court went on to set out some of the data.  What was then said by the court after quoting from Pusiniz, as I have already, the court said this about the allegation of a partner's infidelity:

:"Unsurprisingly, counsel for the applicant did not suggest that their client's moral culpability for his deliberate criminal conduct was in any way reduced by a perception of infidelity which actuated the offence.  In our view, the position is quite the contrary.  The applicant's motivation, that is, to have her killed as punishment for perceived infidelity, is expressive of the very worst of male attitudes towards women.  It follows that this offending must be viewed as involving moral culpability at the highest level.  Sentencing law has long recognised the prevalence of violence by men against women in or after domestic relationships and the importance of general deterrence in such circumstances."

25Your offending, which arose in the context of you considering your partner had been unfaithful is more serious because of that, not the opposite.  Cowards like you need to understand that brutally attacking women is simply not on.  In this case, the special vulnerability of the victim due to her ill health, which you well knew, makes your offending that much more serious. 

26As to your personal circumstances, you have just turned 40.  As outlined, you have been in trouble with the law most of your adult life.  You grew up in Geelong and Warrnambool.  You witnessed violence perpetrated on your mother by your father.  Your mother remains a support for you as does her current partner.  You explained to the medicolegal psychologist, Ms Lechner, that because of your behavioural problems you left home at the age of 13 or 14.

27School thereafter was difficult as you had nowhere really to live.  You did not go beyond year nine.  You worked in an abattoir and on dairy farms.  That work depended on the state of the dairy industry.  You had long-term problems with drugs, first using cannabis at age 13, then heroin.  You are currently on methadone.  You have also used amphetamines and methamphetamines.  You instructed that you have had periods of abstinence, the lengthiest being from 2012 to 2013.

28Ms Lechner considered your risk of reoffending.  The results of her testing and analysis are a depressing catalogue of factors that establish your high risk of like reoffending.  She concluded, taking all of these factors into account:

"Mr Smart currently presents as a high risk of violent behaviour.  This risk would be reduced through abstinence from substance abuse and psychological assistance to manage his impulsivity and sensitivity to loss and abandonment.  Continued use of anti-depressant medication as well as pharmalogical management of his addictions is recommended".

29She went on:

"Mr Smart acknowledges his role in the above offences, making no attempt to shirk responsibility or minimise the seriousness of his actions.  He stated of his behaviour towards the victim that, 'Is not the right thing to do because shouldn't be violent to anyone, let alone the person you love'."

30He stated, so Ms Lechner said, that upon his release from custody he did not use drugs for about four weeks.  He stated that his partner was abusing ice and he eventually relapsed.  "We got into an argument.  She told me she didn't care anymore about anything.  I tried to leave and she kept grabbing me and holding me back".  He became enraged and assaulted her.  You said that you deeply regret your actions because you have lost everything:  your partner, your house, "My stuff".

31I have little confidence, in the end, in your rehabilitation.  I can give that sentencing purpose little weight, though it is never totally ignored.  Your plea of guilty means that your sentence will be less than it otherwise would have been.  As to remorse and regret, all that can be said is that in your record of interview, you said what I have outlined already about not punching her and hitting her with an open hand three or four times.  As is said, you said the things that I have just read out to Ms Lechner.

32However, from what you said to Ms Lechner, she wrote the following, that she considered that you were making no attempt to shirk responsibility or minimise the seriousness of your actions.  It is hard to reconcile the view of Ms Lechner or the one she took, given what you said about your offending.  Beyond that, I do not share Ms Lechner's view as to your acknowledgement of the full impact of your crime, or that you have really taken responsibility or have a pathway to reverse your violent ways.

33In my view, your regrets are about yourself and your losses, not empathy for the victim.  As you said that you have lost everything, "My partner, my house, my stuff".  Your counsel in a comprehensive written and oral plea said all that could be said in mitigation.  I have taken all the submissions, written and oral and the report from Ms Lechner into account.  But in the end, the importance of denunciation, deterrence to you and to others and the need to protect the community, especially women from you, are the weighty sentencing purposes.

34As mentioned, your rehabilitation is not overlooked but it is a matter that must yield to other sentencing purposes.  Notwithstanding that there are no fixed formulas in setting of a non-parole period, the appellate courts require explanations if the non-parole period is beyond two-thirds or thereabouts.  As noted already, you have had many chances in the way of sentences that have been imposed and structured.  You have not taken up these opportunities.

35There is a need to fix a period of incarceration, that is what justice requires.  Also I sentence you on the basis that you might have to do every day of the head sentence that I fix.  But given your poor prospects, your entrenched violence and your criminality, the non-parole period ought, in my view, be higher and the period of potential parole, shorter.  Can you please stand?

36For committing the crime of intentionally causing injury you are sentenced to five years and six months and I fix a minimum non-parole period of four years.  You have already served - how many days is it now?

37MS NORTHEY:  Sorry, Your Honour, 387 plus 14, which brings us to 401.

38HIS HONOUR:  You have already served 401 days of the sentence that I have just imposed in this sentence.  You have been on remand for 401 days.  That period of time having been reckoned, I declare that 401 is part of the sentence that I have just imposed.  I will ensure this declaration is entered into the records of the court so the authorities are left in no doubt that you have already served 401 days of the sentence I have just imposed.  Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of seven years, with a minimum term of five years and six months.  Are there any other orders?

39MR HEVEY:  No, thank you, Your Honour.

40MS NORTHEY:  No, Your Honour.

41HIS HONOUR:  Thank you.  Mr Smart, you have to go with the prison authorities now.  Thank you for your assistance, Ms Northey, and for your patient in waiting around.  I hope you can get away as soon as possible.

42MS NORTHEY:  Thank you, Your Honour.

43HIS HONOUR:  Thank you.

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