Director of Public Prosecutions v Smith

[2017] VCC 1851

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01083

DIRECTOR OF PUBLIC PROSECUTIONS

v

RODNEY SHANE SMITH

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 December 2017
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2017] VCC 1851

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Saville	Office of Public Prosecutions
For the Accused	Ms M. Casey	Lethbridges Barristers & Solicitors

HIS HONOUR: 

1Rodney Shane Smith, you have pleaded guilty to two charges of persistent contravention of a family violence order.  That crime carries a maximum penalty of five years' imprisonment.  You are 32 years of age.  You have pleaded guilty to a settled indictment and must get the benefit of that plea of guilty both in terms of remorse and the utilitarian aspects of it.

2You do have a number of prior convictions, some of which are concerning.  The situation here was that - I will read from the Crown summary in as brief a form as I can,  that you at the time of this offending were in a relationship with one, Rachel Baxter.  That relationship had been going for a couple of years and with two daughters from a previous marriage.

3On 27 July 2016 a final family violence intervention order was granted where the complainant and her two children are family members and you the respondent.  You were served with a copy of that, and I do not need to go through the rather standard conditions that were contained within it.  The complainant made application to vary this intervention order to remove all no contact clauses.  She said that the reason for that was she would like to be able to talk and plan for the future with you since she was in no fear for her safety.  That application was listed at the Frankston Magistrates' Court on
21 December 2016 but was struck out due to the complainant not attending.

4On 10 January 2017 she was at home with her two children.  On three occasions, between 6 am and 1 pm you have been within 200 metres of the address.  On each of those occasions you also were within 5 metres of the complainant.  At approximate 6 am you attended the address and met with the complainant and you were there for two and a half hours.  Later in the morning you again attended the address and she gave you her bankcard.  You went to an ATM and returned with money.  You left again.  You returned again at approximately at 1 pm, five hours later and parked your car in the driveway and again you left.  There were numerous phone calls and messages from your mobile phone to the complainant's mobile phone between 1 December and
19 January 2017.  The total number of contacts by phone was 1223 and the total number of text messages sent to the complainant was 5083.  When spoken to by police you admitted speaking to the complainant on the telephone.

5There was no victim impact statement and you have now been in custody for some 321 days of which 301 days, as I understand it, has been for this matter.

6The circumstances of the offending are not uncommon where there is a continuing relationship with an intervention order in place and then things go wrong.  It is serious.  It has to be regarded as such, of course, with the application of general and specific deterrence but each one has to be looked at in its own particular situation.  I am well aware when making these sentencing remarks that this is in fact a settled indictment.

7Submissions on your behalf were that the relationship was continuing in one shape or another.  Your background is that you are the oldest of four boys.  You worked as a welder.  You do have a reasonably good work record and at the time of this offending both you and the complainant were using ice and cannabis.  In the time that you have been in custody you have used it well and have completed a number of relevant programs.  So far as mental health is concerned you have a depressive anxiety disorder, which I accept you are on medication for, and that is being managed relatively well.

8This is your first time in adult custody and I accept from what you have told your counsel that it has been a very challenging time for you indeed.  You are currently at Marngoneet in the Rothwell Unit, which is a unit for model prisoners and you are working as a cleaner and in horticulture.  Listed in the submissions on your behalf were a number of courses that you have undergone and I accept that that is the case.  You have said that you found those programs in education helpful, especially the drug programs and the Forensicare program.

9Whilst in custody you received visits from a large number of members of your family and upon release you will have their ongoing support.  In all the circumstances of this matter a custodial sentence is appropriate and that being the situation I simply sentence you on an aggregate sentence of 301 days and I direct that 301 days be reckoned as having been served under that sentence.  Rehabilitation is up to you, as is re-offending.

10Pursuant to s.6AAA I say that but for your plea of guilty you are sentenced to be imprisoned for a period of 400 days.

11Are there any other orders?  I thought there was a forensic sample but I do not think he was ever given one.

12MS SAVILLE:  Yes, Your Honour.  I will have to have that email through to Your Honour's associate, if that is suitable.

13HIS HONOUR:  Yes.

14MS SAVILLE:  I do not have the hard copy.

15HIS HONOUR:  I will make it now, all right.

16MS SAVILLE:  Thank you, Your Honour.

17HIS HONOUR:  It will just be saliva.  I will make an order that he provide a saliva - that based on his priors a saliva sample for DNA purposes, that order having been made, if you do not comply with it police can use reasonable force to take it from you.  Your barrister will explain that to you in a moment, what you have got to do about that, all right.  Well, nothing else we need, ladies?

18COUNSEL:  No, Your Honour.

19HIS HONOUR:  All right, thanks for that.

20COUNSEL:  As Your Honour pleases.

21HIS HONOUR:  He is released forthwith.  Yes, come out of there.  Come out.

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