Director of Public Prosecutions v Smith
[2024] VCC 79
•8 February 2024
| IN THE COUNTY COURT OF VICTORIA AT HORSHAM CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01371
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CRAIG PETER SMITH |
---
JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Horsham | |
DATE OF HEARING: | 1 February 2024 | |
DATE OF SENTENCE: | 8 February 2024 | |
CASE MAY BE CITED AS: | DPP v Smith | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 79 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW – SENTENCE
Catchwords: Aggravated burglary – intentionally causing injury – resisting an emergency worker – early plea of guilty – prospects of rehabilitation
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169
Sentence: Total effective sentence of 18 months imprisonment with a two year community correction order – 538 days declared served by way of pre-sentence detention
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. MacDougall | Office of Public Prosecutions |
| For the Accused | Ms A. Hurst | Victoria Legal Aid |
HER HONOUR:
1Craig Peter Smith, you have pleaded guilty on Indictment N11802599 to one charge of aggravated burglary, one charge of intentionally cause injury and one charge of resisting an emergency worker on duty. You have also admitted your prior history.
2The maximum penalties for aggravated burglary, intentionally cause injury and resisting an emergency worker on duty are 25 years’, 10 years’ and 5 years’ imprisonment respectively.
3At the time of your plea hearing on 1 February 2024 you had spent 531 days in custody. Your counsel, Ms Hurst, submitted that I should impose a combination penalty of gaol and a community correction order. I have sought an assessment from Corrections and you have been assessed as suitable for such an order.
Circumstances of offending
4The agreed factual basis upon which I must sentence you is contained in the Amended Summary of Prosecution Opening for Plea dated 10 January 2024. This document was tendered on your plea and what follows is necessarily a summary of your offending.
5At the time of the offending in August 2022 you were living in St Arnaud with your partner, Charlene Boyce. Also living in the home were your stepdaughter, Jenna Seiler, who was aged about 18, and your daughter, Ruby Smith, who was about 15 years of age.
6Sometime in June or July 2022, Ms Boyce had a brief, sexual relationship with the victim, Andre Dalton. You discovered the infidelity shortly after and confided in your daughter. You told her that you were going to kill the victim, however she convinced you not to follow through.
7You attended the victim’s home and told him to “stay the fuck away from her”, referring to Ms Boyce. The victim agreed to do so and there was no further interaction between him and Ms Boyce.
8In the subsequent weeks you and Ms Boyce tried to work on your relationship.
9On 18 August 2022, you had a conversation with your daughter and showed her text messages showing a heated discussion between you and Ms Boyce.
10Later that evening, you and Ms Boyce were drinking together at home. You began discussing what had happened between Ms Boyce and the victim.
11Over the course of the evening, you and Ms Boyce became increasingly intoxicated and you became upset and agitated about what had happened. You told Ms Boyce, “I’m going to his house and I’m going to bash him” and “How dare he do this to us”.
12At the request of her mother, your daughter attempted to calm you down and you told her, “I’m going to kill this guy”. Eventually you did calm down and you promised your daughter that you would not harm the victim.
13Approximately 30 minutes later, your daughter heard a car start outside and called your phone. You told her, “I’m going to kill this guy”. She ran to the rear yard of the property and found you sitting in your Ford Falcon Ute with the engine running.
14Your daughter removed the car keys from the vehicle and pulled you out of the car. At this point you reached into the car and grabbed a black and yellow coloured wooden implement. She attempted to pull the implement away from you and said, “Craig don’t do this”. You managed to pull away and walked off with the wooden implement stating you were going to kill the victim. Concerned by your behaviour, your daughter contacted Triple 0.
15CCTV footage from the St Arnaud Apex Service Station shows you carrying a wooden implement and walking in the direction of the victim’s home on Powell Street at approximately 10.56 pm. In the footage you can be seen wearing a dark coloured jacket, dark coloured pants and dark coloured Ugg boots.
16Whilst walking to the victim’s home, you had a phone conversation with a friend, Christopher Piert. You told Mr Piert that you were going to the victim’s house to “sort him out”. Piert was unable to change your mind and the phone call ended.
17Piert then contacted one of your relatives, Jess Cooper. They drove together to the victim’s house in an attempt to intervene. As Piert and Cooper turned into Powell Street, they observed you walking to the victim’s home carrying a long wooden implement.
18You banged on the victim’s front door. As the victim opened the door, you immediately began to hit him over the head with the wooden implement.
19You entered the home and continued hitting the victim with the implement. The victim and Ms Cooper reached for the implement and Ms Cooper told you, “That’s enough mate, that’s enough”.
20The victim grabbed a golf club that was near the front door and brandished it at you saying, “Get the fuck out”. You then said to the victim, “You fucked my wife in the arse”.
21A female friend of the victim and her young daughter, , were staying with the victim when the assault took place. The assault was witnessed by the female friend and her daughter heard a voice saying, “Get out”.
22A neighbour, also heard voices yelling, “You fucked my misses up the arse” and “Fuck off, leave”.
23You left the victim’s address in Mr Piert’s vehicle along with Jess Cooper and Mr Piert dropped you off near your home.
24Emergency services were called to the victim’s address and paramedics provided medical treatment to the victim who had a bleeding head wound. The victim was taken by ambulance to the St Arnaud Hospital for further medical treatment. Medical examination identified a left parietal scalp laceration.
25The following day on 19 August 2022 at approximately 3.33 am you were apprehended by police. You resisted arrest. Police were required to use OC Foam to subdue and arrest you.
26You were then taken to Ararat police station for interview.
27Police attempted to interview you at 6:55 am, however the interview was suspended shortly after as you were too intoxicated to continue. During this initial recorded interview, you stated:
-“He fucked me misses up the arse and I went there to fuckin’ have a go at him and that’s all it is”.
-“He fucked me misses up the arse”.
-“So that’s the fuckin’ the end of story. That’s why I fuckin’ went there”.
28You were charged and remanded. You have remained in custody since that time.
Nature and gravity of offending
29Mr Smith, aggravated burglary is a serious offence and that is reflected in the maximum sentence of 25 years’ imprisonment. This penalty recognises a person’s entitlement to feel secure within their own property, particularly from violent interference.
30Despite the attempted intervention of several concerned family members and friends, including your fifteen-year-old daughter, you decided to arm yourself and confront the victim at his home late at night. You had several opportunities to reconsider your intended actions. However, you were not able to be deterred from a violent confrontation, most likely as a result of your high level of intoxication.
31The victim would have had little time to react when you immediately began to beat him over the head with the wooden implement as he opened his front door. You entered his home and continued to beat him, only stopping when a concerned friend, who had followed you to the address, intervened.
32Your drunken attack also disturbed a woman and her nine-year-old child who, unbeknownst to you, were in the victim’s home at the time. Particularly at that time of night your attendance would have caught them off guard and would have been very frightening.
33It is fortunate that, on the evidence provided, the resulting injury to the victim was not a “serious injury” within the definition in the Crimes Act,[1] and did not require ongoing medical treatment.
[1] Crimes Act 1958 (Vic) s 15.
34Evidence about the sequence of events strongly suggests your offending was a heat of the moment reaction to your distress and anger at learning the extent of your partner’s infidelity with the victim, including that Ms Boyce had experienced pain during one of the encounters.
35At the same time, you were disinhibited and your judgement severely impaired by the effects of extreme levels of intoxication with alcohol and pain medication. On the night of the offending, you had consumed approximately 17 ciders and several Lyrica tablets.
36The wooden implement used appears to be an item that was within reach in your vehicle which you entered with the original intention of driving to the victim’s address. After you were confronted in your Ute by your daughter, you ultimately walked to the victim’s home still wearing Ugg boots.
37I consider that your resistance of police upon arrest, of which you have little recollection, likely arose only due to your intoxication which was such that you were unable to be interviewed.
38Though your conduct was unacceptable, its severity is moderated somewhat by its relatively spontaneous and reactive nature, factors conceded by the prosecution.
39Intoxication may be an aggravating feature of offending, particularly where an offender has prior knowledge that they may offend when under the influence of alcohol or other substances. In circumstances where you have two priors for violent offending whilst affected by alcohol, your moral culpability in this regard is elevated.
40However, I accept the submissions of your counsel that these priors are dated and the amount of alcohol you had consumed on the night of this offending was unusual for recent years. In fact, on the evidence of Ms Boyce it was unprecedented during your 20-year relationship.
Victim impact
41Andre Dalton provided a victim impact statement which was read by the prosecutor at your plea hearing.
42Mr Dalton described how the offending has upended his life and has left him feeling fearful and depressed. He has sought counselling and has relied heavily on his parents for support. He no longer lives in St Arnaud and has found it difficult to return to work because of migraines, fatigue and memory loss.
43I note that the court has not received any medical or psychological material in relation to the impacts Mr Dalton describes. However, it is clear that the offending has had a lasting negative impact on him and undoubtedly also affected others who witnessed the assault or tried to intervene.
44I take the impact of your offending on Mr Dalton into account in sentencing you.
Personal circumstances
45You are currently 55 years of age and you were 53 at the time of the offending.
46You were born in Byron Bay and have three siblings. Your parents separated when you were three years old and you had no further contact with your father.
47Your childhood home environment was often dysfunctional. You had a good relationship with your mother however she drank heavily, and you frequently observed fights between her and her partners. Your mother’s numerous relationships caused you to be the subject of some ridicule at school.
48You attended school in Lismore and Casino in New South Wales before relocating to the Gold Coast at some point between the ages of 10 and 12.
49You left school at age 14 and worked as a roof tiler with your stepfather for two years. You went on to work at various factories on the Gold Coast. This included steel work, constructing outdoor furniture, shopfitting and building pergolas.
50In your mid to late teens you experienced periods of homelessness.
51At age 19 you were the passenger in a car involved in a motor vehicle accident. You were in a coma for two weeks and spent three months in hospital. During the accident you suffered a major back and head injury and sustained several fractured ribs.
52After recovering, you moved between several states doing cladding and shopfitting work until your remand for manslaughter in 1999. Whilst you were serving sentence for that matter you met your current partner, Charlene Boyce.
53Following your release in 2006, you moved between St Arnaud and Queensland with Ms Boyce until eventually settling in St Arnaud where your mother was living at the time.
54Over the course of your work history you sustained further injuries to your back and other areas of your body which now limit your ability to work.
55In 2015 you fell from the roof of a house and fractured three vertebrae which required you to be airlifted to The Alfred Hospital. Following a further back injury while working on a crocodile farm you began receiving the Disability Support Pension. You have been taking medication for many years to manage the ongoing pain associated with these injuries.
56You report never using illicit drugs besides a brief period of experimenting with cannabis as a teenager. You conceded that at times you have abused the prescription pain medication, Lyrica. You have indicated that you do not want to return to managing your pain with Lyrica when you return to the community.
57Prior to your remand, you drank alcohol daily, usually consuming four to six beers a night. You considered your drinking as a teen and a young adult to be problematic and this was also the case when you were convicted for manslaughter. Your alcohol consumption just prior to the time of the offending was lower than it had been in the past. However, you admitted you would sometimes ‘go overboard’ in combination with your prescription medication in order to manage your back pain and insomnia.
58You have been in a relationship with your current partner, Charlene Boyce, for approximately 20 years. Shortly after your relationship with Ms Boyce began, she became pregnant with your first child together who passed away at around nine weeks of age from a rare heart condition.
59Your prior offending is relevant although is now dated. Your most recent prior conviction was in 2012 for recklessly causing serious injury. You were sentenced to a 12-month term of imprisonment, wholly suspended for two years, and an
18-month community correction order. In addition to community work, you were required to undergo drug and alcohol treatment including time at a rehabilitation facility. You completed this Order without any breaches.60You also have a Queensland conviction from 1999 for manslaughter for which you were sentenced to nine years’ imprisonment. You have several other relatively minor, non-violent convictions between 1987 and 1994 for which you mostly received fines.
61Prior to your remand for the current offences, you were living with Ms Boyce in St Arnaud along with your daughter, Ruby, who is now 16 and Ms Boyce’s 22 year old daughter from another relationship also lived with you at St Arnaud.
62You had a close relationship with your mother until her passing from breast cancer. One of your sisters has also passed away from cancer, however you have several other surviving siblings living across regional Victoria. You understand that your father is now deceased.
63Several people provided character references on your behalf including your sister, Jacinta Hepburn; your partner, Charlene; (who also gave evidence) and St Arnaud community members, Robyn Vanrenen and Jane Ryan.
64Each of your referees attests to your considerate and amiable nature and the extent of the support you have provided to family, friends, neighbours and the St Arnaud community over many years.
65Robyn Vanrenen described how you provided substantial support to her elderly mother who was living alone next door to you in St Arnaud. She credits your support in allowing her mother to live at least two more years independently on her own property before she moved into a nursing home. Following her mother’s death four years ago, you continued to help Ms Vanrenen with her home and garden maintenance.
66Your partner, Charlene Boyce, gave evidence at your plea hearing. She described how, with the support of you and your mother, she was able to overcome a 10 year heroin addiction and be reunited with her children. Ms Boyce also explained that prior to your remand when at home in St Arnaud, you did the majority of the home duties in addition to the considerable work you do around the community. The household has struggled without your income and other contributions, and you are missed by your daughter and stepdaughter.
67Ms Boyce said that on the night of the offending, you were intoxicated to an extent she had never seen before. She affirmed her commitment to abstaining from alcohol together with you in the future, acknowledging that it had exacerbated conflicts within your relationship in the past.
68During your present time on remand, you have focused your energy on your health and fitness, losing 30 kilograms in the process. You have also been employed as a unit billet, although your ability to work is restricted due to your back injury. You have been prescribed an anti-depressant which you take daily, as well as buprenorphine for back pain.
69You are motivated to be abstinent from alcohol upon your release and have completed the course ‘Alcohol and me’. You report this is the only course you have been able to access whilst on remand, though you are interested in completing an anger management course or Men’s Behaviour Change Program.
70You speak with Ms Boyce several times a day from custody by phone or video call.
Psychological history
71For the purposes of your plea, you were assessed by forensic and clinical psychologist, Jeffrey Cummins.
72You told Mr Cummins that you have never received any ongoing mental health treatment and you have never been hospitalised for mental health reasons. You deny ever experiencing suicidal ideation or attempting suicide.
73From your mid to late twenties you have periodically been prescribed an anti‑depressant. You took an anti-depressant for the majority of your nine-year sentence for manslaughter and you are currently prescribed 60 milligrams of the anti-depressant, Duloxetine, daily whilst in custody.
74Due to several periods of depression across your life, Mr Cummins considers that you met the criteria for Major Depressive Disorder.
75Mr Cummins opined at the time of the offending you were experiencing symptoms consistent with Acute Stress Disorder which was initially triggered by the suspicion that Ms Boyce had been cheating on you. The symptoms were exacerbated when, on the day of the offending, you were told by Ms Boyce that she had been unfaithful.
76He also considered that you were suffering from Alcohol Use Disorder at the time. He noted, and you acknowledged, that your prior violent offending also occurred in the context of intoxication. From your explanation of the offending, Mr Cummins formed the opinion that it occurred in response to the situational trigger of learning of Ms Boyce’s infidelity against a backdrop of intoxication with large amounts of alcohol and pain medication.
Plea of guilty
77Your plea of guilty, entered on the day of Committal Hearing, is a plea at an early stage in the proceedings.
78No witnesses were required to give evidence, either at the Committal or trial, and the court system was also spared the significant resources and expense of conducting these processes. In these circumstances your plea has significant utilitarian value and I find you have facilitated the course of justice.
79Though the court’s case backlog caused by the pandemic had largely eased by the time of your plea hearing, I still consider there is some additional residual benefit to your plea given the time it was entered.[2]
[2] Worboyes v The Queen [2021] VSCA 169.
80In the circumstances, I propose to allow a significant sentencing discount for your plea of guilty.
Remorse
81Based on the material provided at your plea, including evidence given by Ms Boyce, I consider you have demonstrated genuine remorse for your offending.
82You told Mr Cummins you had poor memory of the offending; however you were apologetic towards the victim for assaulting him, in particular as it inadvertently occurred in the presence of a child. Mr Cummins quotes you as saying words to the effect of, “I know I shouldn’t have done what I did – I regret what I did.”
83Ms Boyce gave evidence that you had made comments to her of a similar effect.
84You also instructed through your counsel that the offending was a ‘stupid mistake’ and you had no desire to cause any more trouble for the victim and wanted to get on with your life.
85Due to your intoxicated state, it is difficult to ascertain evidence of remorse proximate in time to the offending. Nonetheless, your remorse is evidenced by your plea of guilty at an early stage and the evidence to which I have just referred. I find your remorse to be genuine.
Prospects of rehabilitation
86It was the opinion of Mr Cummins that you have a low-moderate risk of further violent offending, noting your most significant risk factor for offending of this nature is excessive alcohol consumption.
87In considering your prospects of rehabilitation, I take into account the presence of several strong protective factors.
88This includes family and community support and, notwithstanding your limited capacity for paid employment, your demonstrated commitment to occupying your time in the service of your family and community members.
89The provided character references, in combination with the significant temporal gap between your last prior conviction, demonstrate that this offending seems to be an aberration from your conduct over the previous decade.
90This is supported by Mr Cummins’ opinion that this offending was an unfortunate confluence of an acute experience of distress caused by Ms Boyce’s infidelity and a high level of intoxication that was atypical for you at that time.
91I consider it likely your generally good prior behaviour can continue provided you address your issues with alcohol and other underlying factors which contributed to this offending. Positively, you have demonstrated awareness of the role these factors have played in your current and prior offending and a commitment to addressing these issues.
Sentencing principles
92The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.
93I consider that general deterrence and denunciation are paramount sentencing considerations for offending involving alcohol fuelled violence, particularly where it violates the sanctity of a person’s home.
94Though you have priors for violent offending under similar conditions, in my view, specific deterrence should be somewhat moderated in your case. Your counsel submitted that your intoxication on the night of the offending was such that you urinated on yourself in the back of the police van and eventually required medical evaluation. During your arrest, you were capsicum sprayed and a previous shoulder injury was aggravated. You report that you spent several days in the police cells without being able to take a shower or receiving proper treatment for your injuries. You eventually required cortisone injections for the shoulder injury. You have experienced direct and immediate consequences for your actions in circumstances where your arrest and initial remand period were somewhat more humiliating and onerous.
95Protection of the community is a relevant consideration but I consider this would be best served by facilitating your rehabilitation with a period of support and supervision in the community. These objectives would be furthered by ensuring that you do not regress back into institutionalisation and the progress you have made in establishing a productive and pro-social life in the community is not undone.
96I take into account the sentencing guidelines referred to in s5 of the Sentencing Act, where relevant to your case.[3] In particular, I have had regard to the sentencing landscape for the offending before me, particularly the charge of aggravated burglary. Ultimately the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case.
[3] Sentencing Act 1991 (Vic) s 5.
97In sentencing you, I have also given consideration to the principles of totality, proportionality and parsimony. They require me to ensure the total sentence is appropriate to the total criminality, that the punishment should fit the crime and that I should do no more than necessary to appropriately punish you.
Disposition
98In relation to each of the charges before the court you are convicted.
99Charge 1 aggravated burglary you are sentenced to 14 months' imprisonment.
100In relation to Charge 2 intentionally cause injury you are sentenced to 6 months' imprisonment.
101In relation to Charge 3 resist emergency worker you are sentenced to 6 months' imprisonment.
102Charge 1 is the base sentence. Two months of the sentence on Charge 2 and two months on the sentence on Charge 3 is to be served cumulatively. On my calculation this should be a total effective sentence of 18 months.
103I declare you have served 538 days by way of pre-sentence detention and this is to be deducted from your sentence as time already served.
104Mr Smith in addition to the term of imprisonment I intend to impose a 24 month community correction order on Charges 1 to 3 on the indictment.
105Your order will commence upon your release from custody which I believe should be probably in about 10 days' time. The conditions of this community correction order include that:
(a) you must submit for assessment and treatment for alcohol abuse;
(b) you must participate in programs to reduce reoffending; and
(c) you are also to attend for supervision.
106In addition to the conditions that I have imposed, there are standard conditions that you must comply with. The most important of these is that you are not to commit another offence punishable by imprisonment for the period of the Order, which is 24 months. In effect this order hangs over you for the next two years.
107You are required to advise your supervising Corrections officer of any change of address where you are living or working within two clear working days. It is also a term of all community correction orders that you must submit to visits as directed and obey the instructions and directions of the Corrections officer. You cannot leave the State of Victoria without prior permission. You must report to Horsham Community Correction Service within two days of your release from custody.
108Mr Smith if you re-offend you will breach the corrections order and if you do not comply with either the special conditions I have imposed, or the standard conditions, then you would breach the corrections order as well. If you do that you come back before me and you may be re‑sentenced in relation to the original charges which is why I say it hangs over your head. I expect that you will comply with it and I expect that you will not reoffend in the next two years.
109So I can only place you on a correction order if you agree. So first of all, do you understand what is involved in the order?
110OFFENDER: Yes.
111HER HONOUR: Do you consent to such an order?
112OFFENDER: Yes.
113HER HONOUR: Pursuant to s6AAA of the Sentencing Act but for your plea of guilty the sentence I would have imposed is 3 years with a 20 month non‑parole period.[4]
[4] Sentencing Act 1991 (Vic) s 6AAA.
114Lastly, I do not propose to make the disposal order that has been sought by the Crown.
115Is there anything further?
116MISS MacDOUGALL: No, thank you, Your Honour.
117HER HONOUR: Thanks very much to counsel for your assistance and thanks very much to Mr Dalton for your attendance as well. I hope that this matter now being resolved in the way that it has, that you can perhaps move on a little bit. I know that it's had a lasting impact on you and it probably will continue to do so, but at least this part of things are over and I hope that you can get on with your life and return to some normality.
- - -
0