Director of Public Prosecutions v Smith

[2020] VCC 1194

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00193

DIRECTOR OF PUBLIC PROSECUTIONS

v

KHIAL SMITH

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	22 July 2020
DATE OF SENTENCE:	6 August 2020
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2020] VCC 1194

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Attempted aggravated carjacking – summary charge of unlicensed driving – Imitation firearm – Steps taken towards rehabilitation – Genuine remorse – Imprisonment – Licence suspension and cancellation

Legislation Cited: s.79A, s.321M Crimes Act 1958 - s.30(1) Road Safety Act

Cases Cited:Azzopardi v R [2011] VSCA 372 – DPP vMilson [2019] VSCA 55 - Hart v R [2020] VSCA 194

Sentence:Total effective sentence of 4 years imprisonment with a non-parole period of 2 years. Further declare that 70 days be declared as pre-sentence detention. With conviction order that Mr Smith’s licence be cancelled and suspended for a period of 2 months from 6 August 2020.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. J Parker (Sentence) Ms C. Boult (Plea)	Office of Public Prosecutions
For the Accused	Mr R. de Kretser (Sentence) Ms M. Carroll (Plea)	Emma Turnbull Lawyers

HIS HONOUR:

1Mr Khial Smith is now aged 24, he was born on 28 September 1995. He was aged 23 at the time of these offences, unemployed and unfortunately drug addicted, if not addled. 

2At the plea, which was conducted on 22 July 2020, Ms Boult appeared on behalf of the Director, Ms Parker appears today and Ms Carroll appeared on behalf of Mr Smith, Mr De Kretser appears today. 

3Mr Smith pleaded guilty to the one charge on Indictment K12536240.1. That charge was an attempted aggravated carjacking. In addition, he pleaded guilty to a summary charge, that is, drive whilst disqualified. In regard to the charge on the indictment, being an attempted aggravated carjacking, the maximum penalty prescribed for such an offence by Parliament is 20 years imprisonment, pursuant to a combination of s.79A and s.321M. Obviously that sentence indicates the seriousness with which Parliament views this crime.

4It should, of course, be noted that if one was facing a charge of aggravated carjacking, that is not attempted, as you are, Mr Smith, the maximum is a period of 25 years, with a standard sentence provision, which obviously is not applicable here. 

5In regard to the summary matter, the offence is one against the s.30(1) of the Road Safety Act, the maximum sentence is two years' imprisonment and/or 240 penalty units. 

6Exhibit A was tendered by the prosecution and was the summary of the facts.  Ms Carroll accepted that those facts were the facts upon which I am to sentence you, Mr Smith. 

Circumstances of the Offending

7The circumstances, of course, relate to this crime being committed on
17 September 2019 at the Caltex Service Station at Nepean Highway, Frankston.

8The victim, who is on WebEx during this hearing, is Jason Grant.  He went to the self-service to buy some coffee.  After he paid, he was confronted by Mr Smith with an imitation gun.  There is no photo of the gun and I was unable to see it on CCTV, Mr Smith has instructed that, it was a cap gun.  However, whatever it was, it certainly appears to scare Mr Grant in the CCTV footage, Exhibit B.

9Exhibit B in fact shows the confrontation. In Exhibit A, [8] to [24], is summarised by the prosecution, the circumstances of the crime. Despite being confronted in such a manner, Mr Grant refused to hand over the car keys. He was subsequently struck with the gun and injured, not badly, but blood from the side of his head can be seen on the CCTV footage.

10In Exhibit A, the prosecution opening, [25], set out the injuries suffered by Mr Grant and I will recount those.  The victim detailed to police that he received the following injuries:

a.A couple of cuts on his head from falling when he was hit with the imitation firearm.  As I say, you could see the bleeding to the side of the head on the CCTV footage;

b.A cut to his right hand from falling, when he was hit with the imitation firearm, and then impacting the glass coffee jar;

c.Grazing to his left-hand knuckles from falling over; and

d.A couple of cuts to his left knee from falling over.

11The PSD served to date is 70 days.  In regard to the offence in the indictment, it is necessary for me to impose, pursuant to s.89(4), a penalty, insofar as the licence is concerned.  There is no set penalty in the circumstances because of the conviction, but as I have indicated, I intend to record a cancellation and suspension from obtaining a further licence for a period of three months.

12There was no victim impact statement filed, however I have read Mr Grant's statement at p.34 of the depositions.  I have also been able to see, with the CCTV footage, the most courageous manner in which Mr Grant handled himself when confronted.  He bravely afterwards followed the getaway car.  Wisely, he did not pursue Mr Smith any further, once he found the car parked. 

13It appears from what I understand, that Mr Grant has recovered from the injuries quite well, albeit left with some anxiety, given the circumstances of what he went through on this night. 

14Exhibit C was the prosecution submission on sentence.  Given the gravity and nature of the offence, the prosecution submitted that a period of immediate gaol was appropriate, indeed there was no dispute from defence counsel in that regard.

15It was submitted by the prosecution that I should assess the gravity of this crime at mid-range, in particular because of the use of a disguise, the fact that it occurred at night and was an attack on an innocent member of the public, in this case, simply going to a local service station to buy some coffee. The prosecution put that in sentencing, general deterrence, specific deterrence and denunciation must be strongly considered.

16Mr Smith has prior offences, nothing of this sort, he was 23 at the time.  To be involved in crime of this gravity is a big jump, as far as he is concerned.  As I said during the hearing, he has no priors for violence.  He was when he was aged 20, sentenced to 12 months' detention for aggravated burglary, he was still a young offender. 

17When he was 21, for reckless conduct, it does not suggest what that was, but assuming it was driving, he had a further conviction.  He has had further convictions for possession of methamphetamine.  They are the only prior matters he has had.  He has, however, had subsequent sentences, again related to his drug life and milieu.  They were for theft and drugs, for which he was given a sentence of eight months in March of 2020.  And of course, this particular offence, that is, the one in this indictment that I am dealing with, in fact effects a breach of a community corrections order given to him in August of 2019.

Plea of Mr Khial Smith

18In the plea conducted, by Ms Carroll, the written submissions were of much assistance to the Court, Exhibit 1. Ms Carroll also relied upon Exhibit 2, being the prison course certificates, the psychological report of Mr Warren Simmons, dated 22 May 2020, Exhibit 3; the letter of Mr Smith to this Court, dated 22 July, Exhibit 4; and the two character references, Exhibit 5.

19Ms Carroll, at [6] of her written submissions, and indeed in this Court, submitted that there was no alternative but for an immediate period of gaol, however, she asked, in all the circumstances given the steps taken towards rehabilitation, that a shorter than usual non-parole period be imposed. 

20As to the offending, as set out at [7] to [11] of her written submission, Ms Carroll was at pains to point out to the Court that such offending occurred, irrespective of the terror it would have brought to the victim, in a context of drug offending; that it was not sophisticated; that it was done in circumstances where clearly Mr Smith must have known recordings would be made. That in the circumstances, it should be seen as a mid-range-type offending.  That was accepted by the prosecution. 

21Insofar as the victim is concerned, there is no mid-range, of course, for him.  It was, no doubt, a terrifying experience, but the victim will understand that when this Court comes to sentence a person for a crime, it is necessary to relate it to far more serious crimes than this one, albeit for the victim, it was a terrifying experience. 

22As to the personal factors, as I said to Ms Carroll at the time of the plea,
I thought, after reading the defence material, that Ms Boyle's comment in Exhibit 5, her character reference, was apt. As to Mr Smith, she said:

'Since he turned 16 and left home:  "Drugs, trouble and heartache have been his companions ever since."' 

23It would appear from the ages of 17 to 18, his life has been affected by instability, homelessness and lack of stable employment.  All, it would appear, having a background of a failure to get appropriate care when he was very young, however, it is to be noted that, from the age of three through to 14, he was very well supported by his subsequent foster family. 

24Insofar as Exhibit 3 is concerned, that is, the report of the psychologist, Mr Simmons, I want to read from p.5 of that report, in the section under 'Opinion'.  Mr Simmons says as follows: [23]:

'Mr Smith is a 24-year-old man who does not know his parents and has no desire to.  He was adopted by his mothers, whom he indicates have provided him with a positive childhood and there is no history of abuse or neglect.  There were no childhood disorders.  He does not have any intellectual impairment.  He's maintained only limited employment', that being, as I understand it, with the McDonalds organisation, 'however due to an appendix situation, that very employment failed.'

25Just going back to Mr Simmons at [25], he says:

'There appears little in Mr Smith's childhood to suggest he was a significant risk of substance use.  He started having cannabis with his peers at the age of 14 and however was subsequently introduced to methamphetamine and GHB.'

26[27]:

'He has a history of offending, commencing in his teens and although it's noted that his peers have been a factor in his offending, much of his more recent offending behaviour has been related to his degree of homelessness, lack of funds and a need to fund his substance abuse.'

27Finally at p.6, Mr Simmons said this:

'While disposition is a matter for the Court, it's respectfully suggested
Mr Smith would benefit from ongoing drug and alcohol counselling.  He's recommenced on anti-depressants, which seems to be positive.  Further it's suggested he would benefit from a referral to a psychologist to assist him with cognitive behavioural strategies.' 

28It is also suggested that Mr Smith said to Mr Simmons that he intends to make changes in his life, although what is clearly important, is that the degree to which those changes can be made depend, particularly when he comes out of gaol, on his ability to remain substance-free.

29In addition, I had the letter from Mr Smith, which was Exhibit 4.  I note his reference to being addicted at the time.  He is positive about his chances of rehabilitation, given the steps he has been taking during his incarceration, by way of taking the various courses, that I have set out in Exhibit 2. There is also positivity from the character references, Exhibit 5, as to his capacity to live a crime free life.  He says that he appreciates he is going to have a gaol sentence to serve.  He puts before the Court, a plea of mercy.  He submits that this was an isolated incident, not one of many.  He says to the Court, 'I'll never put myself or anyone else', talking of the victim in this matter, 'into those circumstances again.  I carry genuine remorse for the victim and his family'. 

30As I said, Ms Boyle's letter, who is a cousin, amply summarises the issues in Mr Smith's life and further, his friend, George Kanakaris, the other referee and is a close friend, equally confirmed his remorse. 

31As to his sentence, Ms Carroll submitted that, albeit his current age of 24, that it is still appropriate to view him as a youthful offender and I accept that.  She also submitted that rehabilitation for a young man is important, especially a young man with limited prior offences. As I have said, this criminality was a huge step for him.

32Ms Carroll accepted the difficult balance that this Court has to effect when dealing with a young offender, the ongoing need for consideration of rehabilitation against the principles of deterrence, punishment and denunciation.  She referred me to the difficulties of such a balance, as set out in Azzopardi v R [2011] VSCA 372,[38], the Court said that:

'Youth and rehabilitation forfeits its primary focus, where you have a serious crime and there's a need for deterrence, punishment and general deterrence.'

33I want to point out, that while the importance of rehabilitation may be reduced in the circumstances of a particular case, it is not eliminated, and still remains a matter for this Court to take into account. 

34I was also referred to Milson [2019] VSCA 55, [71], where the community interest of appropriate steps for rehabilitation is taken into account. However, again, the issue as to difficult balance was taken up.

35Indeed this week the Court of Appeal published Hart v R [2020] VSCA 194, [4] and [31]. The offending in that case was, much more heinous than this offending, the person involved had prior offences of violence. The principles as to the issues that a Court faces when dealing with a youthful offender in balancing rehabilitation as against the principles involved where there is serious offending are referred to.

36Ms Carroll also, as to mitigation, submitted that an early plea had been made and I accept that.  Such plea effected remorse, it was utilitarian and assisted the attainment of justice.  She submitted that genuine regret and remorse has been shown by Mr Smith, as detailed in his comments, not only to Mr Simmons, his own letter to the Court, but the comments made by his character references. 

37It was submitted by counsel that Mr Smith has been abstinent from drugs while in prison, indeed that this is the longest time since the age of 14 that he has not been partaking in drugs.  While in no way disputing those instructions, I note of course, that there is no support for that.  Mr Smith has the support, of his family, and has set out his intentions, insofar as rehabilitation is concerned.  This Court, of course, must be guarded because it was the impact of drugs which has led him to commit this serious crime. The Court is well aware from many, many experiences of the difficulty in overcoming the impact of drugs.

38Further Ms Carroll submitted how important it was, based on Mr Simmons' report, that Mr Smith continue with his learnings, that have been carried out in gaol; that he continues not to be involved with drugs, taking steps in gaol to assist him in that regard and most importantly, as she recognised, maintain drug abstinence once released. 

39I also accept that in the particular circumstances of the virus that this community is now dealing with, being in gaol is particularly difficult.  There is clearly a risk if the disease, fortunately it has not got into the main gaols yet, there is an increased risk obviously because of the environment.  There is, unfortunately, in all of the institutions, a half-day lockdown effected now, and of course there are no visits.  I take that into account and I take that into account for the foreseeable future, one would think, at least until Christmas.

40Taking all of those factors into account, as I said, this is a very difficult balance. However, the seriousness of this crime, involving a attack upon an innocent member of this community, means, as is not disputed, a gaol sentence must be imposed. 

41As I said to you, Mr Smith, I would normally ask you to stand up, but I will pronounce sentence formally now. 

42Mr Smith, you will be convicted of the attempted aggravated carjacking, an offence, as I have said under s.79A of the Crimes Act, and for that offence, you will be sentenced to imprisonment for four years.

43Insofar as the summary charge, drive while disqualified, I sentence you to imprisonment for two months.

44I do not intend to make any order as to cumulation. 

45As to the total effective sentence of four years, I intend to order that the non-parole period that you must serve before being eligible for parole, is two years.

46I order that the pre-sentence detention that you have served to date, being
70 days, be deemed to be service of this sentence and that a declaration to that effect be recorded in this Court.

47Pursuant to the provisions of s.89(4), your licence will be cancelled, and you will be suspended from obtaining a licence for a period of two months.

48Mr Smith, it is necessary for me to tell you what the benefit to you is of your plea of guilty.  It is, of course, difficult in these circumstances, because the Parliament, under s.6AAA requires me to tell you the benefit to you of the plea of guilty when, as you have now heard, there are many, many factors that I have taken into account in your sentence. However, doing as best I can, had you not pleaded guilty, the sentence I would have given you is not four years with a minimum period before you can be paroled of two years, but it would have been five years and four months with a minimum period of three years and six months before parole.

49Either counsel have any queries.

50COUNSEL:  No, Your Honour.

51HIS HONOUR:  Yes, I thank everyone for their assistance.  Mr Smith,
I wish you well, I hope that, in the community's interest and people like the victim, that you maintain the intent that you have indicated to the Court, that you do reform, because now with this serious conviction and sentence upon you, you should understand that if you do not maintain the lifestyle you have suggested you will, the next sentence will be even harsher.  Yes, so good luck. 

52Yes, thank you.

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