Director of Public Prosecutions v Smith
[2024] VCC 1331
•21 August 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL DIVISION
CR 23-00523
CR 24-01007
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAMANTHA SMITH |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Bendigo | |
DATE OF TRIAL: | 8 August – 20 August 2024 | |
DATE OF PLEA: | 21 August 2024 | |
DATE OF SENTENCE: | 21 August 2024 | |
CASE MAY BE CITED AS: | DPP v Smith | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1331 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Intentionally cause serious injury in circumstances of gross violence – theft of a motor vehicle
Cases Cited: DPP v Hudson [2016] VSCA 254
Sentence:Convicted and sentenced to eight years and six months’ imprisonment with a non-parole period of five years and six months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | The Office of Public Prosecutions |
| For the Accused | Mr C. Pearson | Angus Cameron Lawyers |
HIS HONOUR:
1 Samantha Smith, on the 20th of August 2024 at the County Court of Victoria sitting here at Bendigo, a jury of 12 of your peers convicted you of the following charges on Indictment C2215436.1A:
· Charge 1, theft of a motor vehicle. This charge has a maximum sentence of 10 years imprisonment.
· Charge 2, intentionally cause serious injury in circumstances of gross violent. This charge has a maximum sentence of 20 years imprisonment, and is subject to the mandatory sentencing regime, which in this case requires a minimum non-parole period of four years imprisonment.
2
The remaining charges, that is 3, 4 and 5, were alternative charges to
Charge 2.
3 There are two related summary charges that you have consented to being heard at this plea hearing. You have pleaded guilty to the following related summary charges:
Summary Charge 7, commit an indictable offence whilst on bail. That was for the 8th of May 2022; and
Summary Charge 12, committed indictable offence whilst on bail which was for the 7th of June 2022.
4
You also pleaded guilty to two charges which were on
Indictment C2215436.1B:
Charge 1, was possess cannabis. In the circumstance of your offending that offence has a financial penalty.
Charge 2, possess an explosive substance. This offence has a maximum penalty of five years imprisonment.
5 You admitted your prior criminal history. On 3 March 2005, at the Hobart Court of Petty Sessions you were sentenced to four months imprisonment, two months of which was suspended for charges of burglary, car theft and theft.
6 You admitted your criminal history in Victoria which commenced in 1995 for a minor charge of damage to property. In October 2003 at Melbourne Magistrates' Court you were without conviction placed on a nine months community based order for dishonesty offences, including theft of a motor car and having housebreak in implements. Between 2004 and 2008 you had five separate court appearances for dishonesty offences. In 2009 you had your first court appearance for a heroin use and possession. In 2014 you had two court appearances for driving offences.
7 At the time of offending before this court you were on an adjourned undertaking from the Kyneton Magistrates' Court for drug offences and one charge of possession of a controlled weapon without excuse.
8 You have been remanded in custody on these matters in the past. You have also been on bail but you have 368 days of pre-sentence detention in respect of the sentence.
The circumstances of your offending
9 I make the following findings beyond reasonable doubt consistent with the jury verdict of the circumstances of your offending.
10 On 8 May 2022 at approximately 11 pm, you attended an address in Elizabeth Avenue, Kyneton with Sean Davis. Davis was driving his Ford Utility. You were in the passenger seat. You exited the ute using a key that you had retained, unlocked Mr Shaw's blue Barina and drove it away without the lights on. The Barina was later recovered by police from the rear yard of Stockers Dairy in Kyneton.
11 On that same night you returned to the premises in Elizabeth Avenue in Kyneton. You were a passenger in the Ford Utility, again driven by Davis. At that time of your approach to the premises, Mr Shaw was out the front and on the phone to triple zero to report the theft of his Barina to the police.
12 You got out of the ute and rushed at Mr Shaw with a baseball bat in a raised position. You struck him to the left knee with the baseball bat. You then struck him to the left rib cage area with the baseball bat. Mr Shaw wrestled with you and got the baseball bat away from you. He successfully got hold of the bat. You have then lunged at him and stabbed him with a knife to the left chest area just under his left armpit. Mr Shaw did not see the knife but realised that he had been stabbed. Mr Davis picked up the baseball bat and was “shaping up” to use it on Mr Shaw but Mr Hannaford intervened saying, 'He's had enough' or words to that effect. You immediately left with Davis in the ute, taking with you the weapons.
13 The whole incident of the assault with the baseball bat and the knife was all over in approximately two minutes. It was a planned attack and efficiently executed.
14 After leaving the premises you and Davis travelled to a vacant lot next to the home occupied by Sean Taylor. Mr Taylor observed you and Davis placing items in the wheelie bin next to his fence. Taylor asked you what you were doing. You and Davis then left the Ford ute on the vacant allotment next to Taylor's place. Taylor called the police.
15 The police attended and located the baseball bat and two knives in the wheelie bin. The weapons were forensically secured, seized and sent for forensic examination. The DNA results link you and Davis to the knives and the baseball bat respectively.
16
You attended at the address armed with weapons in the company with Davis and with a clear intention to seriously injure Mr Shaw. But for the intervention of the ambulance service and medical treatment to Mr Shaw at the
Royal Melbourne Hospital you would have killed the father of your two sons, Storm and Diezel.
17 Your offending was a vicious and unprovoked attack on Mr Shaw. Your statement to Ms Caraffa that 'He deserved it', shows your complete lack of remorse for your actions.
18 In respect of the related summary offences, the factual basis for these charges is at the time of your arrest both on 8 May and 2 June 2022, you were on bail for other drug offences which have subsequently been dealt with.
19
In respect of Indictment C2215436.1B, at the time of your arrest on
2 June 2022, the police located a small amount of cannabis and a fireworks item on the tallboy in your bedroom.
Victim impact statement
20 Mr Shaw prepared a victim impact statement dated this day, 21 August 2024, the day after the jury verdict. He set out how as a result of the assault his spleen had been removed and is required to take antibiotics frequently on a daily basis. He also sets out the other effect of anxiety and a sleep disorder that he now endures.
21 The victim impact statement is as Mr Pearson described it as somewhat understated. I agree with that observation and it is consistent with the manner in which he gave his evidence during the trial.
Your personal circumstances
22 You are 46 years old. At the time of the offending you were 44. You were born in suburban Melbourne and raised there until you were approximately five years of age when your family moved to Romsey to live.
23 You have an older brother and sister and one younger sister. Both of your parents are alive. Your mother attended your trial on a regular basis.
24 In an interview with Warren Simmons, Forensic Psychologist, who prepared a report dated 1 December 2023, you describe your childhood as really good and your parents were supportive and financially comfortable. You had regular family holidays. You were involved in activities of dancing, swimming and weight lifting. Both of your parents worked. You did your primary education at Tullamarine Primary School. You were a capable student but became bored easily. You report you had good relationships with your teachers and fellow students.
25 You then attended at Gisborne Secondary College. You left school halfway through Year 11. You were a member of the school swimming team and the weightlifting team.
26 At the age of 13 you commenced part-time work as a horse strapper. Your work was both before and after school. You report that the work distracted you from school. Ultimately, you were expelled from school due to drinking at school during the week.
27 You then worked as a full-time horse strapper and breaker until you were aged approximately 17 and then worked for two years at a transport depot with the role of operations manager in sight. In this period your drug use started to get a grip of your life and you quite that job.
28 Your employment history since the ages of 19 and 20 was hotel jobs here and there until you had a serious accident in 2005. You have been in receipt of the disability pension since that time.
29 You have had an extensive drug problem, commencing with cannabis use at the age of 14. You were also abusing alcohol at that age. From 16 years onwards you used ice, ecstasy, Xanax and mushrooms. You had smoked and injected heroin. You have used methylamphetamine.
30 I read the BailSafe documents tendered in court and you have made attempts to remedy your drug addiction problem whilst you have been on bail.
31 You have had a number of relationships over your life. Predominantly your partners have been met in the circumstances of your drug use. You have one daughter now aged 18 from one of those relationships. You have two sons aged 8 and 12, from a relationship with the victim of your crime, Jordan Shaw. Your two sons currently live with your parents. There are Family Court proceedings by Mr Shaw to get custody of your sons.
32 Mr Simmons conducted a Montreal Cognitive Assessment of you to determine if you suffer from any neuropsychological problems arising from the injuries you received in the 2005 accident or at some other time. His conclusion is that there is no identifiable acquired brain injury. Mr Simmons did not diagnose you with any mental health issues there has been and cannot be any explanation for your offending.
Sentencing considerations
33 The basic purpose for which a court may impose a sentence of just punishment, deterrence both specific and general, rehabilitation, denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.
34 I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that as an offender you are rehabilitated and re-integrated into society.
35 I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for those sentences. I have considered current sentencing practices and the statistics, mindful that each case must be considered in light of its own particular circumstances and as many of the cases would be distinguishable from your case, as indeed they are from one another.
36 In this case Charge 2 on the indictment intentionally cause serious injury in circumstances of gross violence enlivens the mandatory minimum non-parole period of four years imprisonment. This minimum period is mandatory unless you, as the offender, establish on the balance of probabilities that there are substantial and compelling circumstances that are exceptional and rare and justify to finding special reason not to be bound by the mandatory sentencing provision.
37 I find that you have not established a special reason required under the s10A of the Sentencing Act 1991 (‘Sentencing Act’). And consequently, a minimum mandatory term of imprisonment is four years for Charge 2.
38 You have had the advantage of a stable and supportive family in your formative years. Your parents continue to support you by caring for your young sons, Storm and Diezel.
39 Your long term problem has been alcohol and drug abuse. In the period that you have been on bail from June 2023 to now you have made progress in rehabilitation for your drug problem. You have not offended in that time and you have provided clean urine screens according to the BailSafe reports.
40 This is a positive sign for your rehabilitation into the future. I assess your prospects of rehabilitation as far when balancing your long term drug use problem against your more recent and relatively short term successful drug control.
41 The objective seriousness of your offending in respect of Charge 2 is indicated by the following factors:
1) The offending was planned by you and Davis.
2) You attended the premises where you knew Shaw was present.
3) You were armed with the baseball bat and knife when you attended at the premises.
4) The offending occurred late at night.
5) You were on bail for drug offences at the time of your assault on Shaw.
6) You struck Shaw with the baseball bat to the leg and to the rib cage area.
7) After Shaw disarmed you from the bat you then stabbed him with a knife.
8) You were the main aggressor and attacker. It was submitted on your behalf during the course of the plea that at the time you were under the influence of methylamphetamine.
9) Davis was present during the attack but his direct involvement, physical contact to Shaw was by punches to the head.
10) The injuries to Mr Shaw were very serious, involving the loss of his spleen and seven days in hospital at the Royal Melbourne Hospital.
11) The evidence is but for the medical intervention by doctors, Mr Shaw would have died from the stab wound injury.
42 The finalisation of this prosecution comes after a delay of two years and three months from the time of your arrest in June 2022 to the jury verdict in August 2024. In that time you initially engaged in rehabilitation whilst on remand in custody, as set out in Exhibits 3 and 4. As previously noted, upon release you continued that progress on BailSafe.
43 I accept that at the time you have in custody will have the added burden of separation from your two sons. They have been living with your parents but you have been able to have access to them during that time. That level of access will now be limited by your incarcerations.
44 Your co-accused, Mr Davis, has not been sentenced for his part in this offending. Mr Davis has accepted a sentence indication of four and a half years for the charge of intentionally cause serious injury. The plea hearing is listed for 30 September 2024 before another judge of this court.
45 The charge Mr Davis has pleaded to, intentionally cause serious injury, does not have the mandatory minimum sentencing regime applicable to it. I was told that Mr Davis has a criminal history which involves violent offending.
46 You do not have a criminal history involving violent offending. The prosecution case was that you and Davis were complicit or acting under an agreement when the assault offending took place. After a trial and a jury verdict you are to be sentenced for a charge of intentionally causing serious injury with circumstances of gross violence. This is a different charge to the one pleaded to by Mr Davis after a sentence indication hearing.
47 Mr Pearson on your behalf, submitted that the principle of parity and sentencing had application to your case. He relied on the authority of DPP v Hudson[1] to support that submission. The charge you are to be sentenced for has a different and more severe sentencing regime than Mr Davis's charge. Mr Davis's sentence indictment would necessarily have taken into account a discount under s6AAA of the Sentencing Act for his plea of guilty. No such discount has application in your case as you are to be sentenced for a different charge after a jury verdict.
[1] [2016] VSCA 254.
48 Mr Davis's plea of guilty must carry with it some level of remorse. In your case you maintain your position that you did not use the baseball bat or indeed stab Mr Shaw. Your statement to Ms Caraffa is clear. You had no remorse for this offending or any care for your victim, Mr Shaw.
49 These matters reduce any proper application of the principle of parity of sentencing to a very minor consideration in your case.
50 My sentencing remarks have concentrated heavily on Charge 2, that is intentionally cause serious injury in circumstances of gross violence. In respect of the theft of the motor car the offending is at the lower end of that offence but you have prior convictions for that type of offending. A small level of cumulation of sentence is appropriate for that charge. The breach of bail offences are part of the principal charges of seriousness and the concurrencies appropriate for each of those charges. The cannabis possession and fireworks possession are appropriately punished by the imposition of a monetary penalty.
51 The sentencing principles of specific and general deterrence, just punishment, denunciation of your actions, protection of the community, including your rehabilitation dictate that a term of imprisonment with a non-parole period are the only appropriate sentence.
52 Would you stand please?
53 On Indictment C215436.1A, Charge 1, theft of a motor vehicle, you are convicted and sentenced to nine months imprisonment on Charge 2, intentionally cause injury in circumstances of gross violence, you are convicted and sentenced to eight years and three months imprisonment.
54 And the related summary charge, Charge 7, which is committing an indictable offence on bail, you are sentenced to one month imprisonment. And in relation to related summary charge, Charge 12, commit an indictable offence on bail, you are convicted and sentenced to one months' imprisonment.
55 On Indictment C2215436.1B, on the charges of possess cannabis and possess explosive substance you are convicted and sentenced to an aggregate fine of $500.
56 For cumulation the base sentence is the eight years and three months for the intentionally cause serious injury in circumstances of gross violence, to that sentence three months of the sentence in Charge 1 is to be cumulated upon that sentence. That is a total effective sentence of eight years and six months imprisonment.
57 I fix a non-parole period of five years and six months imprisonment. I declare that you have served 368 days of pre-sentence detention in respect of that sentence.
58 Obviously, there is a $500 aggregate fine and there were disposal and forfeiture orders signed.
59 Is there anything else?
60 MR PEARSON: No, Your Honour.
61
HIS HONOUR: Yes. Thanks. Thank you. You can remove the prisoner.
Mr Pearson and Mr Cordy, thanks very for your assistance during the course of the trial and the pleas hearing.
62 MR PEARSON: If Your Honour please.
63 MR CORDY: Thank you, Your Honour.
64 HIS HONOUR: Thank you.
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