Director of Public Prosecutions v Smith
[2022] VCC 358
•18 March 2022
| IIIN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02319
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEX EDWARD SMITH |
‑‑‑
JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 March 2022 | |
DATE OF SENTENCE: | 18 March 2022 | |
CASE MAY BE CITED AS: | DPP v Smith | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 358 | |
REASONS FOR SENTENCE
‑‑‑
Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Causing injury intentionally – Damaging property – Aggravated carjacking – Careless driving – Unlicensed driving – Fail to stop after an accident – Mandatory minimum – Delay – COVID-19 pandemic – Relevant criminal history – Verdins Principle 5 – Aboriginal offender – Koori Court
Legislation Cited: Crimes Act 1958 ss 18, 79A, 197(1); Road Safety Act 1986 ss 18, 61(5), 65(1); Sentencing Act 1991 ss 6AAA, 10AD, 18, 87P(f)(vii), 89A(1)(c).
Cases Cited:Worboyes v The Queen [2021] VSCA 169; The Queen v Steelie Morgan [2010] VSCA 14; Honeysett v The Queen (2018) 56 VR 375; Director of Public Prosecutions v Heyfron (2018) 56 VR 375; Mammoliti v The Queen [2020] VSCA 52.
Sentence: Imprisonment for a period of 4 years.
‑‑‑
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms H Edwards | Office of Public Prosecutions |
| For the Accused | Mr P Teo | Paul Vale Criminal Law |
HIS HONOUR:
Introduction
1Alex Edward Smith, you have pleaded guilty to one charge of causing injury intentionally, contrary to s 18 of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment (Charge 1), one charge of damaging property contrary to s 197(1) of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment (Charge 2), and one charge of aggravated carjacking contrary to s 79A of the Crimes Act 1958, which carries a maximum penalty of 25 years imprisonment (Charge 3).
2You have also admitted the related summary offences of careless driving contrary to s 65(1) of the Road Safety Act 1986, which carries a maximum penalty of 12 penalty units in this instance (Summary Charge 10), unlicensed driving contrary to s 18 of the Road Safety Act 1986, which carries a maximum penalty of 60 penalty units or six months imprisonment (Summary Charge 11), and failing to stop after an accident contrary to s 61(5) of the Road Safety Act 1986, which carries a maximum penalty of five penalty units or 14 days imprisonment (Summary Charge 12).
3You have also admitted your Criminal Record.
Circumstances of the offending
4A prosecution opening was tendered on the plea and may be summarised as follows:
5At the time of offending, you were 44 years old. You did not hold a driver licence and police enquiries established that you have never held a driver licence.
6Neil Brackenridge was 55 years old and did not know you prior to the time of the offending.
7Emma Metcalf was 23 years old and did not know you prior to the time of the offending.
8Tim Smith lived at an address in Lilydale. You and Mr Smith were known to each other prior to the offending. Tim Smith and Mr Brackenridge had been friends for many years at the time of the relevant events.
9On 23 March 2019, at approximately 2.30pm, Mr Brackenridge arrived at Mr Smith's house in Lilydale. Mr Brackenridge had planned to stay the night and return home the next day.
10At about 4.30pm, Mr Smith left his house to visit his father in Upwey. Mr Brackenridge stayed at the Lilydale address and watched TV.
11At about 6.30 pm, you knocked on the front door of the Lilydale address. The door was not locked, just shut. Mr Brackenridge went to the door to see who it was, but he did not recognise you and walked away without opening the door.
12You opened the unlocked door and entered. You were carrying a dark backpack, which you placed on the lounge room floor. Mr Brackenridge was in the hallway when you walked in. Mr Brackenridge then sat on the couch. You introduced yourself to Mr Brackenridge as 'Al'.
13You asked Mr Brackenridge where Mr Smith was. Mr Brackenridge told you he was visiting his dad. You appeared angry, so Mr Brackenridge did not elaborate on Tim's whereabouts. You then said to Mr Brackenridge, 'Do you know my girlfriend?' Mr Brackenridge replied that he did not know her. You said her name was 'Peta' and that Tim Smith had been 'playing up with her'. Mr Brackenridge told you that he knew nothing about it.
14You then went to the kitchen and took a bread and butter knife from the kitchen drawer. You returned to where Mr Brackenridge was still seated on the couch and 'swiped' at the left side of Mr Brackenridge's throat. You kept saying, 'Stop playing dumb' as you had the knife in your right hand. Mr Brackenridge blocked your attempt at swiping him with the knife. Mr Brackenridge's hand sustained a small cut to the palm. You then put the knife down. It is these facts that form part of Charge 1, causing injury intentionally.
15You then went back into the kitchen and took a steak knife out of the drawer. You picked it up and said, 'That's long enough, that'll get into the heart'. Mr Brackenridge noticed the knife had a three-inch blade.
16You then came over to Mr Brackenridge and saw his phone on the table beside him. You stabbed the phone screen, which smashed, rendering it unusable. It is these facts that give rise to Charge 2, intentionally damaging property.
17You then moved closer to Mr Brackenridge, with the steak knife still in your hand, and told him to stand up. As Mr Brackenridge went to stand up, you punched Mr Brackenridge to the left eye with your fist while you were holding the knife in your right hand. His eye became very bruised and sore. You kept asking him if he knew your girlfriend and if he could ring her. Mr Brackenridge said he did not know her and did not have her number and that his phone was now smashed. You then went to hit Mr Brackenridge with your left hand but missed, and then went to hit him with your right hand and struck him. You moved closer and headbutted Mr Brackenridge to the chin/lip area, causing it to bleed and swell. The bottom front tooth punctured his lip. These facts also form part of Charge 1.
18You and Mr Brackenridge sat down and you were calm for a while. Mr Brackenridge saw you pull out an empty bottle of Dickel Whisky from your backpack and heard you say something like 'that'll knock him out', and then saw you put it on the floor next to you. You asked Mr Brackenridge about himself and he told you he had a brother and four children. You then started to cry and said you were sorry that you had hurt him, as you now knew he had 'kids'. You sat with your head in your hands, sobbing.
19You kept asking about Mr Smith, and Mr Brackenridge told you he would be home in half an hour. With the knife still in your hand, you said, 'Half an hour is up'. You grabbed Mr Brackenridge's car keys and said, 'All right, let's go to his dad's place'. Mr Brackenridge tried to explain that the car would not start, as it had an interlock device in it and Mr Brackenridge had already had two beers. With the knife in your hand, you tried to blow into the interlock device but it did not work. You then made Mr Brackenridge blow into the interlock so the car would start. It was then that Mr Brackenridge noticed a second 'short' knife in your back pocket. The car started and you drove towards Mooroolbark. It is these facts that give rise to Charge 3, aggravated carjacking.
20You were on Mooroolbark Road when you drove up closely behind Emma Metcalf, who was in a white car with green 'P' plates displayed.
21Ms Metcalf noticed the vehicle speed up and drive very close behind her. Ms Metcalf sped up a little in order to put some distance between you, but you remained extremely close behind her. You began to flash your lights at her and swerved around, sped up and then slowed down. Ms Metcalf felt intimidated. Mooroolbark Road was a single‑lane road and she could not get away from you.
22Mr Brackenridge observed that you were driving too close behind Ms Metcalf's vehicle and that, at one point, Ms Metcalf stuck her finger up at you outside the window. You then became angry and lost control.
23As Ms Metcalf began to turn right into Hull Road, you continued to follow her and she heard your vehicle slide around the corner as you tried to stay close behind her. You continued this behaviour all the way along Hull Road, where you eventually overtook her. You then wedged yourself between Ms Metcalf's vehicle and the car in front of her and braked suddenly, so that Ms Metcalf had to slam her brakes in order to avoid a collision. You then slowed down and drove slowly along Hull Road, well below the speed limit.
24On approaching the nursery on Hull Road, you suddenly pulled over to the left and ushered Ms Metcalf past you. You then pulled out directly behind her and drove very closely behind her bumper bar again. She again felt fearful. You kept in front of the other traffic and she could hear you skid around the roundabouts to keep up with her. On Hull Road, you pulled up next to her and abused her through the window, then backed off and repeated this manoeuvre.
25As you and Ms Metcalf got to the Dorset Road intersection, you pulled up next to her again and when she indicated to turn left, you drove around her, hitting the right side of her car, which caused her to swerve. You then stopped in front of her, which caused her to swerve again into a different lane. You remained in the left‑turning lane onto Dorset Road and Ms Metcalf ended up stopping at the traffic lights heading down Hewish Road. You remained in the left‑turning lane onto Dorset Road when you stopped and verbally abused her again. She told you that she was going to the police station, as you had hit her car. You then began to threaten her, and so Ms Metcalf put her window up and waited for the light to turn green. You then drove off. Ms Metcalf then drove straight to the Croydon police station, taking as many back roads as she could as she was afraid you might see her again. It is these facts that give rise to Summary Charge 10, careless driving, and Summary Charge 12, failing to stop after an accident.
26You drove off and drove to the Dorset Gardens Hotel in Croydon. You and Mr Brackenridge arrived at around 7 pm. You parked out the back of the hotel, near the hotel rooms, and walked to the entrance where the gaming rooms were. Mr Brackenridge remained with you, as you still had his keys and he did not want to lose control of them.
27As you and Mr Brackenridge approached the entrance, you made eye contact with a security guard, Ahmed Agwa. Mr Brackenridge says he was walking slightly behind you and motioned to the security guard by pointing to you and shaking his head. He says he was attempting to warn the security guard that he needed help to get away from you.
28Mr Agwa refused to admit you and Mr Brackenridge to the hotel, as, in his view, both you and Mr Brackenridge appeared affected by alcohol. You became argumentative with Mr Agwa and a physical altercation ensued, during which the security guard and you punched each other. Mr Brackenridge did not run away from you at this point because he was afraid you would hurt him and because you had his keys and control of his car.
29You and Mr Brackenridge then left. You made Mr Brackenridge blow into the interlock device again. The mouthpiece was slightly broken, so it took over 10 minutes for him to get the car started. Once the car was started, you drove quickly out of the car park and back to Mr Smith's place.
30Mr Smith had returned home by the time you and Mr Brackenridge arrived at the Lilydale residence. You and Mr Brackenridge went inside. Mr Brackenridge noticed a whisky bottle on the floor where you had earlier left it. Mr Brackenridge moved it out of sight so that you would not use it. You threatened Mr Smith in relation to his aggressive behaviour toward your girlfriend. Mr Smith told you that he had not done anything to your girlfriend. You then picked up the pen off the table and held it to Mr Smith's throat but then almost immediately left the premises. You took Mr Brackenridge's car keys with you. You were only gone for a few seconds when you returned again. The door was locked this time. You yelled through the fly screen door that you wanted your phone that you had left behind. Mr Smith noticed your backpack and gave it to you and quickly shut and locked the door again. You then left. You did not take Mr Brackenridge's car but still had his keys. You never returned the car keys to Mr Brackenridge.
31Mr Brackenridge received a call from Leading Senior Constable John Heywood at about 7 pm in regard to the collision with Ms Metcalf's car. Mr Brackenridge attended at 9.20 pm the same night at the Lilydale police station and had photographs taken of his injuries. He did not attend hospital for treatment.
32On 24 March 2019, police attended at the Lilydale residence, spoke to Mr Brackenridge and took photographs and collected exhibits. DNA profiles were conducted, linking you to the scene.
33On 25 March 2019, Mr Brackenridge noticed two knives on the floor of his car, to the right of the driver's seat footwell area. He recognised one of the knives as being the steak knife that you attempted to stab him with in the Lilydale residence. It was the same knife you held in the car when you forced Mr Brackenridge to blow into the interlock device. There was another knife in the car which was not from Mr Smith's house and did not belong to Mr Brackenridge. Police subsequently seized the knives.
34On 24 March 2019, Mr Brackenridge attended at Canterbury Garden Medical Centre in North Bayswater. Medical notes state that Mr Brackenridge had bruising under his left eye and a small left subconjunctival haemorrhage. He also had bruising to his right lower lip, with internal laceration and chipped lower tooth.
35Police located you in Healesville on 1 April 2019, arrested you and took you to the Lilydale police station, where you participated in an interview. During the interview, you denied you had a friend named Tim Smith. The interview was otherwise largely a 'no comment' interview.
Nature and gravity of the offending
36Aggravated carjacking is viewed by Parliament as a very serious offence, reflected in the maximum penalty of 25 years imprisonment. Further, pursuant to s 10AD of the Sentencing Act 1991 (the Act), unless a special reason exists pursuant to s 10A of the Act, the Court must impose a term of imprisonment and fix a non‑parole period of not less than three years.
37Mr Teo, who appeared on your behalf, did not seek to rely on any s 10A special reason, however he submitted that the aggravated carjacking in this instance falls towards the lower end of seriousness for this type of offending. He relied on the fact that the offending was not in company, that there was little planning and, ultimately, you left the vehicle behind with the owner - although you took the keys with you.
38Ms Edwards, who appeared on behalf of the Director of Public Prosecutions, submitted that while the carjacking offence could not be described as sophisticated, your conduct that gave rise to all of the charges, is serious. First, the injury charge was sustained, involving the use of knife, followed by punching the victim. Secondly, that you attended the house with a whisky bottle, intending to use it as a weapon. Thirdly, that the summary charge of careless driving represents a serious example of an unprovoked road rage incident.
39In my view, while the specific offence of aggravated carjacking, if taken in isolation, may not represent the most serious example of that offence, your conduct leading up to that offence and following, which included threatening and injuring Mr Brackenridge and intimidating Ms Metcalf by the nature of your driving, represents a serious episode of criminal conduct.
40While no victim impact statements were tendered, it is self‑evident that Mr Brackenridge was in fear, following your threats and physical assault. Ms Metcalf was alone in her car when you targeted her. Ms Metcalf stated that she felt intimidated by your relentless pursuit of her and ultimately hitting her car.
Personal circumstances
41You are now 46 years of age. You are an Aboriginal man and the youngest in a sibship of five. You have a twin brother who passed away in 2016 as a result of a car accident and you have three older sisters. You have the support of two of your older sisters, one of which attended the plea with your mother. You also have, in recent years, reconnected with a daughter from a previous relationship. She is now 28 years of age and you have expressed that you have a desire to spend more time with her and her own young children.
42You describe your childhood in negative terms and have disclosed a history of sexual abuse. You did not enjoy school, you experienced learning difficulties and you left school at the end of Year Eight. You then worked for a short period of time in a sawmill and report that otherwise you have been unemployed for the past 16 years, relying on government benefits.
43You have a long and complex drug and alcohol history. You report that at times through your life you have consumed whisky and beer daily. As to illicit substances, you state that you began smoking approximately two grams of cannabis daily from age 14 and, when not incarcerated, you have continued to use this amount daily. You have used amphetamines, GHB and heroin.
44Two reports were tendered on the plea, authored by Dr Loretta Evans, clinical neuropsychologist. The first is dated 25 July 2017 and was prepared for a previous court appearance. The second, dated 9 February 2022, essentially involved a reassessment of your cognitive abilities, to determine if there had been any significant changes. Dr Evans also confirmed some of your history. I have taken the contents of both reports into account.
45In the earlier report, Dr Evans formed the opinion that you were suffering from a mild, substance‑related acquired brain injury. In the second report, Dr Evans states:
I remain of the opinion that longstanding cannabis and heroin abuse (and to a lesser degree alcohol), together with amphetamine abuse (of which the extent is now known to be greater than previously known) are the key elements that have negatively contributed to Mr Smith's overall profile of Very Low to mildly impaired level of cognitive functioning. Hence, it is my opinion that he continues to declare a mild substance related brain injury.
46Dr Evans is also of the view that other factors influence your presentation, including symptoms of major depressive disorder and complex post‑traumatic stress disorder.
47As to whether the impact of your conditions would make prison more burdensome for you than the ordinary burdens, Dr Evans stated that in absence of a comprehensive treatment plan, your mental health is likely to deteriorate over time and, as such, a term of imprisonment is likely to become increasingly more onerous for you when compared with that of the average prisoner.
48I was informed at the plea that since being on remand you have engaged in courses, including drug rehabilitation. You have also been working in custody and are involve in producing aboriginal art. Some historical references were tendered, including a letter from your sister, Susan, who also attended the plea. I have read these documents and taken them into account.
Sentencing considerations
49I take into account your pleas of guilty in this matter. You ran a contested committal and the matter was awaiting trial in this court before it resolved on 2 July 2021. While the plea is not an early plea, in the circumstances, it has nonetheless saved the court significant time and expense and spared the victims from having to give evidence at trial and relive the indecent. Further, as the plea was entered in circumstances where the pandemic has created a substantial backlog of cases in the criminal justice system, it carries additional weight which must be reflected in a further amelioration in sentence.[1] In all the circumstances, your plea, therefore, has high utilitarian value.
[1]Worboyes v The Queen [2021] VSCA 169 at [39].
50While you intended for a period of time to plead not guilty, nonetheless, it was submitted that over and above your pleas of guilty you have demonstrated genuine remorse. First, during the offending, after you had assaulted and threatened Mr Brackenridge, you calmed down and began asking him questions. He told you he had children and you then apologised to Mr Brackenridge for hurting him. You then began to cry. Secondly, during the sentencing conversation at the plea, you stated that you had inadvertently run into Mr Brackenridge following the incident and you apologised again to him. In the circumstances, I accept that you have some insight as to the impact of your conduct on the victims and that you have demonstrated a degree of remorse.
51Mr Teo submitted that, based on the psychological evidence, Verdins principle 5 is enlivened. Ms Edwards submitted that the opinion of Dr Evans is qualified, first, because Dr Evans found that your mental health is likely to deteriorate in custody absent any mental health treatment plan and, secondly, because Dr Evans found that some aspects of your mental functioning would not deteriorate in the custodial setting. Thus, it was contended that, as Dr Evans' finding is qualified, any weight given to Verdins principle 5 should be limited. In my view, the principle is enlivened. However, I accept that the weight given to Verdins principle 5 in this instance is limited in the sentencing calculus.
52I take into account that a proportion of your time on remand has been served under onerous conditions in custody due to the COVID-19 pandemic. On current information, while some restrictions have eased, personal visits, programs and work in prison continue to be restricted and lockdowns are in place in certain circumstances. Thus, you will continue to be subjected to such conditions as you serve your sentence. I take these matters into account.
53As to your prospects of rehabilitation, Mr Teo submitted that, given your history, your prospects must be guarded. While I take into account the difficulties you have battled from your early years, as was pointed out by Ms Edwards, since 2009 you have only been out of custody for approximately six months. You have an extensive criminal history that commenced in 1993 and you have been provided with a number of opportunities to engage in rehabilitative programs. At 49 years of age you have effectively become institutionalised, and while you have strong family and community support you need significant support upon your release.
54I take into account your participation in the Koori Court. It is confronting to sit face to face with respected elders of your community, and your involvement in the process is a factor that is relevant to sentencing. In your case, at the plea hearing you also had the support of your sister and your mother who made contributions. Further, Christopher Hume, a worker from Mullum Mullum Indigenous Gathering Place, supported you at the plea and offered his continued support upon your release from custody. You engaged in the sentencing conversation and accepted the advice and support of the respected elders who took part, Aunty Lyn McInnes and Uncle Rod Jackson.
55The Court of Appeal has recognised that the 'sentencing conversation' in the Koori Court is designed to 'further the reformation of an Aboriginal offender'[2] and is rightly considered to be a mitigating factor.[3] More recently, these principles have been reiterated in Director of Public Prosecutions v Heyfron.[4]After referring to the principles outlined in Honeysett v The Queen, Kaye JA stated:
In the present case, those factors apply, in fair measure, to the manner in which the respondent has participated in the Sentencing Conversation in the course of the plea hearing. While the participation of an offender, in that process, is by no means a ticket to freedom, nevertheless, as a matter of sentencing principle, it is appropriate to take it into account for the reasons explained by the Court in Morgan and Honeysett.
[2] The Queen v Steelie Morgan [2010] VSCA 14 at page 11.
[3] Honeysett v The Queen (2018) 56 VR 375 at [54].
[4] [2019] VSCA 130.
56I must also balance other relevant sentencing considerations. In this instance, general deterrence, denunciation of your conduct and protection of the community must be given weight. As to specific deterrence, it too must carry weight, as you have a relevant and consistent offending history, which demonstrates a pattern that needs to be broken. While you need significant support to assist you in that regard, specific deterrence must also play a part as you engage in rehabilitation.
57As noted above, pursuant to s 10AD of the Sentencing Act 1991, Charge 3 calls for a term of imprisonment with the imposition of a non‑parole period of not less than three years. However, as noted by the Court of Appeal in Mammoliti v The Queen,[5] the mandatory minimum serves as a yardstick alongside existing sentencing principles and does not displace the instinctive synthesis.
[5] [2020] VSCA 52, [27]-[28].
Sentence
58Mr Smith, would you please stand.
59Alex Edward Smith, on Charge 1, causing injury intentionally, you are convicted and sentenced to two years' imprisonment.
60On Charge 2, intentionally damaging property, you are convicted and sentenced to three months imprisonment.
61On Charge 3, aggravated carjacking, you are convicted and sentenced to three years and nine months imprisonment.
62On Summary Charge 10, careless driving, and Summary Charge 12, failing to stop after an accident, you are convicted and fined $500 on each charge.
63On Summary Charge 11, unlicensed driving, you are convicted and sentenced to one month imprisonment.
64I direct that three months of the sentence imposed on Charge 1 be cumulative on the sentence imposed on Charge 3. That makes for a total effective sentence of four years imprisonment. I direct that you serve three years and three months' imprisonment before becoming eligible for parole.
65Pursuant to s 18 of the Sentencing Act 1991, I declare that 793 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
66Pursuant to s 6AAA of the Sentencing Act1991, if not for your plea of guilty I would have sentenced you to a period of imprisonment of six years, with a non‑parole period of four years and nine months.
67In relation to Charge 3, as the evidence is uncertain as to whether you were under the influence of drugs or alcohol at the time, I am not satisfied that s 87P(f)(vii) of the Sentencing Act 1991 is enlivened. Nonetheless, in my view, taking into account the seriousness of your conduct in relation to Charge 3 and Summary Charges 10, 11 and 12, pursuant to s 89A(1)(c) of the Sentencing Act 1991, you are disqualified from obtaining a driver licence for a period of two years from today.
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