Director of Public Prosecutions v Smith

[2017] VCC 1789

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00853

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW ANTHONY SMITH

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	29 November 2017
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2017] VCC 1789

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	Mr N. Goodenough	The Office of Public Prosecutions
For the Accused	Mr J. Anderson	Balmer & Associates

HIS HONOUR: 

1Matthew Anthony Smith, you have pleaded guilty to one charge of conduct endangering life, one charge of being a prohibited person possessing a firearm, one charge of theft and one charge of possession of a drug of dependence.  Those crimes carry maximum penalties of ten years, ten years, ten years and one year respectively.

2You have pleaded guilty at a reasonably early opportunity to a settled indictment.  I accept that in these circumstances, there is a degree of remorse and you must of course get the utilitarian benefit of that plea of guilty.

3You are still only 31 years of age.  You do have a concerning amount of prior convictions and have received significant gaol sentences in the past.  Indeed on 11 April this year, I sentenced you to be imprisoned for a period of 27 months with a minimum term of 18 months for which sentence no PSD was declared.

4A summary of this offending is that in early 2016, you enlisted the support of one Cox, one Van Abel and one Napier to go and intimidate a drug dealer in White Road in Wonthaggi.  I point out from the outset that Napier has no real significance in the parity aspects of this case and Van Abel was something in the order of ten years younger than you.

5At approximately 2 am on 17 April 2016, the four of you attended at Smith's home in Wonthaggi.  You were - other than Napier, armed with firearms and shots were fired at a shed in which three people were doing whatever they were doing I suppose. 

6You had on 8 April announced on Facebook that you were going to take care of people.  On 9 April, you spoke to a Mr Pert and a conversation was recorded where you made threats.  On 16 April, you were in the Traralgon area with Vanable.  You exchanged SMS messages and you told Mr Cox.  Mr Cox said that he was on his way in his mother's car and you told him to "make sure you bring that fishing rod". 

7In any event, the four of you teamed up with Napier driving as I understand it and arrived at Smith's house in White Road.  I do not think I need to go any much more detail.  A significant number of shots were fired at this shed and it must have been a terrifying experience for the people who were in it.  That gives rise to the charge of reckless endangerment and in fact one of the shots did penetrate the shed.

8You were a prohibited person possessing a firearm.  I make no findings as to who fired what shots although the odds would seem fairly strong that you all did. 

9In any event, a vehicle that was on the premises was stolen and it gives rise to the charge of theft.  It was subsequently destroyed but that has got nothing to do with you and I will come again to that in a moment.

10When police arrested you, a small amount of methamphetamine was discovered and that gives rise to Charge 4.

11That is, in very simple terms, the offending. 

12So far as parity is concerned, Cox received a sentence of three years with a two-year minimum and Vanable received a sentence of 27 months with an 18-month minimum.  He was a year younger than you with very few prior convictions albeit one of them having resulted in a custodial sentence.  So I do not really think he is of real significance.  It is more a matter of parity with Cox and there seems to be common ground.  The differences between you and Cox, I will give a little bit more detail in a moment that you are essentially the same age, essentially the same level of prior convictions.  He was not charged with being a prohibited person in possession of the shotgun and he got more than I will be giving you for the theft of the car because he destroyed it.  You will have to undergo the sentence in protection, he was not as I recollect.  You have seven months Renzella time and in the end, I am not going to be ridiculous about it, it seems to me that it balances out that you should get the same sentence as him.

13I have before me very helpful submissions from your counsel, some certificates of what you have been able to achieve in gaol and a letter written by you.  I sentenced you, as I indicated back in April this year and I do not need to go into all that detail again. Those document sentencing remarks speak for themselves.

14Essentially your parents separated when you were very young.  You were initially brought up in Wonthaggi.  You went to live with your father at the age of 14 after a stepfather had passed away from cancer which I accept affected you very deeply.  When going back to live with your father, he was a violent man and that undoubtedly had an adverse effect upon you. 

15You went to a number of schools.  You were told that you had a learning disability and having read your letter, I suspect that that's probably very much the case.  When you were 17, you left school in Year 10, your mother found a job for you and to your credit, you completed a baker's apprenticeship when you were aged 21.  You worked at a bakery in Williamstown.  You have had other employment.  It is not common in situations such as this where a person has your background and your prior history that there is in fact a recognisable trade that you can use and be employed in. 

16You had a number of personal difficulties over the years including having a stillborn child.  Your use of drugs became clear from when you were young, being drug and alcohol addiction.  You have resorted to ice when under stress and so far it has made a bit of a mess of your life. 

17It is put to me now at the age of 31 that you now have some insight into the nature of your drug addiction and that you are aware that you have to exercise extreme caution where you might be tempted to use.  You are clearly, as I said, employable.  You have somewhere to go upon your release and if you can stay off drugs, the prospects of your rehabilitation should be reasonably good.  You have shown in the past that you can complete an apprenticeship as a baker which I assume would have included working very, very difficult hours.  The risk of your reoffending is dependent entirely of course upon the realisation of your rehabilitative process. 

18As I say, I have sentenced you before. They are the same sentence remarks really just for a different offence.  I think the simple fact of the matter is I do regard you as being in very much a parity situation with Cox, and according you are sentenced as follows.

19Charge 1, 30 months.  Charge 2 of prohibited person possession, 12 months.  Charge 3, theft of a motor vehicle, six months with a licence suspension of six months, and possess methamphetamine, one month.  That one month is to be concurrent.  I direct that three months of the sentence imposed on Charge 2, three months of the sentence imposed on Charge 3 be served cumulatively upon each other and upon the sentence imposed upon Charge 1.  That gives an effective head sentence of 36 months.

20Pursuant to s.14(1)(b), I direct that there be a new minimum term of 21 months to commence from today.  I direct that 261 days be reckoned as having been served under this sentence. 

21Pursuant to s.6AAA - though I am concerned that there might be a total barrier on doing this because s.14 says I am not allowed to say what minimum term I would have given - but just for the record so that you know what the benefit of having pleaded guilty - but for your plea of guilty, I would have given you four with a three.

22I would not order that like that but that is the benefit you got from putting your hand up for this.  Are there any other orders I need to make?

23MR GOODENOUGH:  Just the disposal order, Your Honour.

24HIS HONOUR:  I've made that.  There's nothing else?

25MR GOODENOUGH:  No, Your Honour.

26HIS HONOUR:  No, all right.  All right, thanks, gents.

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