Director of Public Prosecutions v Smith

[2019] VCC 575

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00556

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK SMITH

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	30 April 2019
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2019] VCC 575

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Stougiannos	OPP
For the Accused	Mr S. Ranjit	Papa Hughes

HIS HONOUR:

1Mark Anthony Smith, you pleaded guilty to three charges of intentionally causing injury.  You were found guilty by jury verdict of false imprisonment, make a threat to kill and rape.  You pleaded guilty to the three injury charges in January 2019, just as a trial, which included those charges, was about to begin.  On 6 February 2019, a jury found you guilty of the above mentioned charges.

2The three charges of intentionally causing injury relate to three separate incidents.  Two of which in 2016 and one in 2017.  The first injury charge arises on 14 February 2016.  You had met the victim the previous December 2015.  You had offered her a room to stay.  I will refer to her as 'S'.  She would stay with you and at times leave of her own accord.  This was a controlling and oppressive relationship from the start.

3Her life circumstances at the time meant that she felt she had very few options but to remain at your premises.  She slept on a mattress on the floor of the loungeroom.  By July 2015, she had obtained an intervention order against you, but you continued to have contact with each other despite that order.  She felt she had nowhere to go and did not care. Her partner had died and her daughter had been molested.  She described herself as going off the rails.

4On 14 February she answered a call on your phone, a call from a female.  You were outside working on your car.  She came out and she opened the glovebox, looking either for a torch or a pen.  There she found a card which may have been a Valentines Day card, of which she had not received.  When she raised the issue of the card with you, you became enraged and starting hitting her about the head.

5It is clear from her evidence that such assaults were routine upon her.  You had some keys with other items hanging with them and you had that in your hand when you struck her.  And you then dragged her by the hair and her feet.  She lost consciousness during this assault.  She remained in the house, which she described as having been locked up and she was constrained to remain on the mattress without being able to leave, at your whim.

6On 17 February, having been in that house since the 14th in a precarious and injured situation you boasted that you would make the news for killing her and she believed you were going to kill her.  You again assaulted her by beating her.  On that occasion she took the first opportunity to escape.  She ran next door and to the neighbour who assisted her.

7The third incidents of injury occurs in September 2017, which forms part of the incidents in relation to 8 September.

8I should say right from the beginning that I found the victim to be an honest and reliable witness, whose account of her ordeal at your hands was harrowing and compelling.  It is clear that your ill treatment of her was longstanding and ongoing, and often brutally violent, viciously callous and cowardly.  These incidents were not isolated.

9I will sentence you specifically for the offending to which you have pleaded guilty, or of which you were found guilty.  However, it would be inappropriate or artificial in the extreme to sentence you in a vacuum without acknowledging the life context within which these offences were committed.

10The most telling aspect of the evidence about the 2016 matters and the matters in September 2016 is the sense of dread and lack of care which your behaviour engendered in 'S'.  She did not care if you killed her, because she wanted to die, she said.  She had nothing left to live for in her mind and the oppressive and frightening environment of abuse and domestic violence created by you left her enveloped by fear, rendering incapable of escaping the situation at will.  I will return to the impact on her in a moment.

11On 8 September 2017, you took her from the car and dragged her inside.  The jury found you guilty of having falsely imprisoned her.  In that circumstances you again assaulted her by beating her with a metal pole about the head.  You threatened to kill her and she fell asleep on the mattress with her face and head covered in blood.  When she woke up you were sexually penetrating her from behind and at some point pulled out, spat on her back and called her a slut.  During this ordeal you had rendered her unconscious probably a number of times.

12It is notable that 'S' was a small and petite woman, while you were a tall, large and powerful man.  You left, finally, to get some cigarettes and as you did she made her way out of the house.

13During this event you had taken her to the shower to clean herself up and as part of the assault you had held the metal pole under her chin and her neck, rendering her unconscious.  You grabbed at her breasts violently and hit her repeatedly about the head.  You broke her false teeth and threw them on the floor in a further humiliating display of contempt for her.

14The details of these matters is contained in the trial prosecution opening and will be retained on the court file, as well as the transcript of her evidence.

15I note here that the jury, perceptibly, gave you the benefit of the doubt in relation to two charges pf false imprisonment and perverting the course of justice , being matters relating to the period May to June 16, and to the kidnapping charge related to the event of September, which is Charge 5.

16'S' wrote a victim impact statement for the court.  The serious consequences of your callous behaviour towards her are best understood by her own words,

'Most of the time I feel like I should have let him kill me.  I couldn't even take a shower without telling him.  If I caught him out in a lie he'd get angry, if I moved anything and didn't put it back in the same exact place or if I used anything without asking there would be yelling and hitting.  I'm finding this really difficult to say because I've blacked it so I don't have a breakdown, so I don't go to a place I can't come back from, ever.  I feel sorry for you, I cared for you.  I always looked after you, I understood you; what did I ever do to deserve it?  He made me feel unlovable, useless, ugly, hopeless.  I thought lots about getting out, but I didn't think anyone cared or would help me.  I had nowhere else to go, it took all my self-worth.  I'd go back only because it was better than being homeless, I felt dead inside'.

17She describes her fear and her hyper vigilance in public, her problems with memory, confusion and bodily pain,

'There is no peace in my head, I don't get any enjoyment out of anything, I just want peace.  All I want is my teeth'.

'He took everything.  I am broken in so many places that I can never be put back together, even animals aren't cruel like that'.

18The criminal law has had, out of sad necessity, to give greater recognition to the devasting effect of domestic family violence.  General and specific deterrence are very important factors in sentencing men who assault their partners.  Women who are killed by their partners have frequently been assaulted by them many times previously.  The effects of such violence are not unique to 'S'.  Victims who have been dominated, controlled and beaten by their partners over a significant period experience serious and long-lasting psychological trauma, well beyond the physical injuries.

'The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm' (See Pasinis v The Queen [2014] VSCA 97.)

19The physical degradation of the complainant was complete by your rape of her, in circumstances where you made plain by your conduct that you wanted to humiliate and act in utter disregard for her physical and personal dignity and integrity.  I consider that your conduct was high gravity and that your moral culpability, similarly, is high.

20I do not accept that, as was submitted by your counsel, that in relation to Charges 1 and 2, the injury was minimal and that they were in any way ameliorated because the complainant had voluntarily attended your unit at a time when you lived apart.  The injuries sustained in the September episode were of a serious order, caused by a weapon, resulting in facial fractures.  This was a vicious assault.

21I take into account your pleas of guilty in relation to the three charges related to the infliction of injury.  Although there is a measure of utilitarian benefit, the nature of the proceedings meant that these matters had to be traversed in any event, and your plea upon these matters was inevitable, given the evidence, particularly medical and photographic.  They were not offered early in the proceedings.  Your main concern was always the rape charge as was made clear many times during the course of proceedings by your counsel.  In relation to these offences, particularly a reduction in sentence will be applied as a result of your guilty plea.

22You also pleaded guilty to two related summary offences, which pertained to contravention of family violence intervention orders, which relate to
14 and 17 February 2016, in which the complainant was the protected person.  Penalties in relation to these contraventions will be concurrent to the sentences for the injury charges.  Particularly as it would fairly appear that such contraventions were in part committed by the mutual agreement between you and 'S' to reside in the same house from time to time.  That aspect may have been agreed but the assaults were not.  Such conduct whilst subject of court orders must also, in my view, carry a measure of punishment in recognition of the existence and meaning of such orders.

23I should indicate that the pleas to the injury charges seem to be, in my view, not accompanied by any measure of remorse by way of your demeanour in court in response to the evidence of the complainant, and in your record of interview and in any of the material provided.  There is no evidence of any remorse or insight into your conduct.

24I take your personal circumstances into account.  Your plea outlined an upbringing which was disadvantaged and dysfunctional.  Even if your behaviour was a manifestation of uncontrolled emotions, anger and impulsive aggression, this background does not in my view make your behaviour any more acceptable.

25Your background was set out in two reports which the court received and in particular in the sworn evidence of your sister, Leanne, who has been visiting you a few times a month during your reclusion on remand.  Other family members, two of your sisters and a niece, were also in court during your plea.  She confirmed the family history and gave evidence that upon release your plan is to live with your sister in Bendigo, where other family members live.  She has endeavoured to remain in contact with you and provide you with some link to family and normality, and is one of the few positive factors in your profile.

26Your family history, which she confirmed, is contained in the report dated
March 2019, of Clinical Psychologist Alison Mynard.  It is there, set out together with educational and vocational history, history of significant relationships, substance abuse, medical history, mental health background and current psychological assessment and recommendations.

27You are 50 years of age.  You suffered a damaged childhood, the second youngest of 10 or 11 children.  You were placed in an orphanage at age two and made a ward of the state some time after that.  You lived in Baltara and Turana, a boys group home and in a boarding house with a carer about until 14 years old.  Later you lived in a hostel in Moorabbin.  You were exempted from school at Year 8 and began to work, and you have lived on the streets from time to time.  At age 11 you were placed in a more stable foster home, then moved to the hostel.  You were then homeless and you decided to go to Queensland for work.  You were there involved in a serious car accident, which caused internal and head injury.  You were 19 at the time when you went to live with your sister and she supported your recovery.

28In your mid-20s you went to South Australia for five years.  At around age 30 you returned to Victoria and met your wife soon after.  Your father died in 2002.  Employment after leaving school consisted of work at a petrol station and a shoe factory.  You had then periods in Turana and Pentridge.  In the period post-marriage you had a business initially, roller doors, installing them.  But you worked as a brick layer primarily for others over 20 years.  You last worked about four years ago.

29You were together with your wife for about ten years until she passed away in 2008.  Thereafter you lived in Bendigo but became transient for a number of years.  The relationship with 'S' began in 2014 after another relationship which had developed in 2009, had come to an end.  You have smoked cannabis from adolescence and throughout your life, and have used alcohol to excess and had injected speed for years, as well as ice.

30The car accident at age 18 or 19 was the second serious car accident you were involved in.  You had had an earlier one when aged 15.  You told Mr Delaney, clinical neuropsychologist, for the purposes of an ARBIAS report, dated 2010, that the main injury was your hearing.

31Ms Mynard mentions this ARBIAS assessment in her report.  She states that report concluded you suffered from a mild alcohol related brain injury and severe traumatic brain injury with borderline to mildly impaired cognitive range of impairment.

'The results showed his immediate attention, working memory, divided attention and sustained attention were all mildly impaired'.

32You are currently in the severe range for depression, anxiety and stress scale.  In prison you stay in your cell, sleeping most of the day and keep to yourself, preferring to generally isolate yourself.  You acknowledge you can be very impulsive and that you struggle to think about consequences of your behaviour.

33Ms Minard commended on your anger management and possible, but inconclusive ADHD diagnosis.  She noted that your stunted development, with an inability to emotionally regulate, self-monitor your behaviour, be self-aware and learn appropriate communication within relationships.  You present with issues of impulse control, anger management, emotional regulation, memory loss, with few coping mechanisms for stress and mental health.

34All of these issues and lack of attachments in early life have significantly influenced your current presentation.  You would require long term and intensive rehabilitation and treatment to address these chronic issues of brain injury and psychological illness in order to reduce your risks of relapse into addiction and reoffending.

35I take her report and the earlier report of Mr Delaney into account.  I take into account the head injury, when coupled with past history and drug and alcohol use, have contributed to reduce opportunities to acquire adaptive social skills and your capacity to deal with great emotional or personal challenges and adversity.  Episodes of severe behaviour or lack of control have resulted in these subject occasions and in the past to levels of aggression and violence. These matters I take into account in determining the length of your sentence.  Careful to not only impose punishment, but not to extinguish opportunities for rehabilitation and reclamation.  However, your prospects of rehabilitation must be very guarded.

36It is said upon your plea that the issues in the context of the relationship with 'S' were problematic and meant that you were, in effect, deprived of the mental ability to adequately and appropriately respond to those stressors in the relationship.  I do not accept that proposition.  It is one thing to acknowledge that there may be organic causes linked to an aggressive and violent response to stressors.  It is another to agree that reduced culpability is appropriate where such conduct is sustained, ongoing and not responsive to any provocation or other difficult behaviour.  The culpability, in my view, is not reduced because there was no unreasonable or challenging behaviour to deal with on any of the evidence on these occasions.

37The violence offered was simply your way to deal with the daily challenges of relating to another human being and utterly unacceptable as a response.  There were fractures of the eye socket and cheek.  The anterior and lateral walls of the jaw, left and right, this was serious and a sustained event of extreme violence.

38I have noted your criminal history.  There area  number of dishonesty and drug matters that come before the court from age 15 and onward, including an assault and robbery, aged 15, when you were returned to care by this court.

39From 1993 onward, then before numerous courts there are imposed fines, suspended sentences, community based dispositions for a variety of offences, culminating in the sentence of His Honour Judge Bourke, in July 2010, for aggravated burglary with an offensive weapon, intentionally cause injury and recklessly cause injury.  Your co-accused received a sentence on that occasion, but you received a 30 month wholly suspended sentence.

40Upon reading the sentence of His Honour it is clear that you were a major perpetrator on that occasion, in which you assaulted a person with a metal object, hitting him on the head in his own home.  His Honour makes clear that the sentence relates primarily to your plea and the events and circumstances since the offending, at p.22.  Your participation in the CISP program, the report of Mr Delany, and particularly your assistance and undertaking to assist a criminal investigation about an armed robbery, which pertained to a notorious armed robber.  Your assistance was said to be of high value.

41His Honour clearly gave it great weight, though I note he remarked at paragraph 28 –

'Your acquired brain injury and associated difficulties did not significantly reduce the moral culpability of your offending on that occasion'.

42He accepted imprisonment would be to some extent more difficult for you because of them, which reflects my view.

43Your priors are notable also in that they comprise breaches of interventions order in 1997, which related to a woman you were in a relationship with at the time; a stalking prior in 2014, unrelated to this current victim; a prior in 2014 for using a carriage service to harass, for which you were again placed on a community corrections order.  An order which you breached a further prior in 2015 for recklessly cause injury, for which another community corrections order was imposed.  The victim in that case was 'S'.  It was referred to as - it is clear that it was the subject of the Myrtleford incident, in which you again assaulted her.

44You have failed to comply with court orders on five occasions in the past, but your disregard for that order in particular is noteworthy, as it was imposed for violent behaviour related specifically to the victim, in the offences for which I sentence you today.

45Please stand up, Mr Smith.

46On Charge 9, of rape, a category 1 offence as defined under s.3 of the Sentencing Act and under s.5(2G), the court must make an order for imprisonment.  One Charge 9, which carries a maximum of 25 years' imprisonment, you are convicted and sentenced to six years' imprisonment.  This is the base sentence.

47On Charge 1, of intentionally cause injury, you are convicted and sentenced to nine months' imprisonment.

48On Charge 2, of intentionally cause injury, you are convicted and sentenced to nine months' imprisonment.

49On Charge 6, false imprisonment, which carries a maximum of ten years' imprisonment, you are convicted and sentenced to 15 months' imprisonment.

50On Charge 8, make a threat to kill, which carries a maximum of 12 years, you are convicted and sentenced to 12 months' imprisonment.

51On Charge 7, intentionally cause injury, which carries a maximum of ten years, you are convicted and sentenced to three and a half years' imprisonment.

52On the unrelated summary offence, Charge 1, you are convicted and sentenced to three months concurrent. 

53And on unrelated summary offence, Charge 4, the same charge, to three months also concurrent.

54I order that one month on Count 1, one month on Count 2, two months on Count 6 and 8, and 12 months on Count 7 be cumulative on Count 9, the base sentence, making a total effective sentence of seven and a half years.  I order a non-parole period of five years.

55I declare that you have served 595 days by way of pre-sentence detention, excluding today and I will have that number noted in the record of the court.

56But for your plea of guilty I would have imprisoned you for eight and a half years, with a non-parole period of 6 years.

57I have also signed disposal orders. Is the sufficiently sentence clear, gentlemen?

58MR STOUGIANNOS:  Yes, Your Honour.

59MR RANJIT:  Yes, Your Honour.

60HIS HONOUR:  Thank you.  Yes, you can remove Mr Smith, thank you.

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