Director of Public Prosecutions v Smith

[2017] VCC 224

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-01080

DIRECTOR OF PUBLIC PROSECUTIONS

v

LINDSAY EUGENE SMITH

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	8 March 2017
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2017] VCC 224

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 J. Taylor	Office of Public Prosecutions
For the Accused	Ms O. Trumble

HER HONOUR:

1Lindsay Eugene Smith, you have pleaded guilty before me to one charge of aggravated burglary, one charge of recklessly causing injury and one charge of theft.  The facts underlying your offending are as follows. 

2In the early afternoon of 10 September 2014 the victim in this matter, Daniel McMahon, who lived with his father at premises at 18 Prince Street, Moe, was in his bedroom.  Two other persons, Thomas Hay and Patricia Anne Forsythe, were also in the house at the time.  There was a knock at the door. 
Hay answered it because McMahon was getting dressed and he recognised two men standing there, that being you and your brother, Shawn Ernest Smith.

3You asked if Danny was there.  Hay said he had gone out.  You asked when he would be back and Hay stepped outside and pretended to call Daniel on his mobile phone saying he would be back in an hour.  Forsythe then walked out of the house and you asked if Danny was there and she said yes. 
However Hay repeated that Danny was gone and went to walk back inside.  However you pushed past Hay and Forsythe and went inside while Shawn stood in the doorway, preventing them from coming back in.

4McMahon went to talk to the front door when he saw you and your brother barge in.  Your actions in entering the house in this way, on this occasion underlie Charge 1 on the indictment, aggravated burglary with an intent to assault whilst a person was present. 

5The two of you grabbed Daniel around his shoulders and dragged him to the front door and he hung onto the door frame to try to prevent being dragged.  However the door was closed by you on his right hand so he had to let go.  These actions underlie Charge 2 on the indictment, recklessly causing injury.

6Shawn then dragged McMahon over the porch into the front lawn and when he fell to the ground his mobile phone fell out of his pocket and Shawn picked it up.  Your brother was charged with theft, a charge not applying to you.  The two of you hit McMahon to the upper body and head region causing bleeding and swelling to the left eye

7Eventually you left and walked away and McMahon went inside calling his father, who was driving home at the time.  McMahon got into his father's car and the two of them drove to your parent's home in Queen Street to speak to your mother, Vicki Moborne.  Barry Jones, who is McMahon's father got out and walked towards the house and your mother came out to try and calm the situation.  The two of you came out and Jones argued with you in the street. 

8Then a young 16 year old neighbour saw you and Jones dancing around in the road with your fists up, yelling at each other and then punching each other to the head and upper body.  Eventually Jones and McMahon drove away.

9You then drove with your brother in a car to Jones' premises and when you got out of the car you were armed with a traditional aboriginal club about three feet long with a baseball type handle and a lump at the end.  These actions underlie Summary Charge 12 to which you also pleaded guilty on the plea, possessing a dangerous article.  Shawn was also seen by Jones standing in the driveway carrying a large knife and he faced charges alone in relation to carrying a controlled weapon without excuse. 

10Jones called 000 and he heard you yelling "Get out of here, get out of here".  You then smashed the kitchen window with the club which actions underlie Charge 4 on the indictment, criminal damage.

11Eventually police arrived, you were arrested and were also charged with unlicensed driving as police saw you driving the car and you did not have a license at the time.  You were eventually arrested after a bit of a chase then being run down by police.  You made a no comment record of interview.

12The maximum penalty for aggravated burglary is 25 years' imprisonment. 
The maximum penalty for recklessly causing injury is five years' imprisonment.  The maximum penalty for criminal damage is ten years' imprisonment. 
The maximum penalty for possessing a dangerous article is six months or 60 penalty units and the maximum penalty for unlicensed driving is three months' imprisonment or 25 penalty units.

13This matter proceeded long ago via the Koori Court.  At that time both you and your brother, who had pleaded guilty, at what was conceded to be a reasonably early stage, spoke with the elders and myself and discussion was had also with your mother about your background.  I do not intend to revisit the circumstance of your background in any detail except to say that you and your brother both had longstanding methamphetamine habits and you have a number of prior convictions.  None of them particularly serious.

14You, yourself, have been in a stable relationship for many years and you now have four children, the youngest being born in the aftermath of these proceedings.  Eventually it was agreed that you should be dealt with by way of a community corrections order but was felt that ultimately this was best achieved by you going into Galiamble Mens Drug Rehabilitation Centre.  You had two attempts at this.  On both occasions you unfortunately, if I might use the colloquial quote, fell off the wagon.  You were open about your use but the rule at Galiamble is that once you, in fact, use methamphetamine you have to be exited from the program and then begin all over again.

15On each occasion that the matter returned to court as a result of you using methamphetamine the reports about you were sufficiently positive that I felt it appropriate to give you another opportunity.  On the last occasion you indicated that you had left Galiamble when you were not supposed to because of the birth, or the impending birth, of your daughter, Sienna.  You had also used ice once you got home.  I accepted that explanation.  The matter was further adjourned and arrangements were made for to you return to Galiamble. 

16This, however, never occurred.  You never returned to Galiamble. 
You remained at large, you remained with your family.  A warrant for your arrest went out until you were picked up by police.  You have now been in gaol for a period of 80 days.  When you came back to court two days ago it was my firm intention to wash my hands of you essentially, Mr Smith and simply order that you serve a term of imprisonment for this offending.  In my view you had been given multiple opportunities and you had simply declined to take them up.

17However, after some conversation with you it became clear that the 80 days has been very difficult for you.  I accept that it is often more than usually difficult for Koori people, in any event it is well established, to endure gaol but in particular for you, you are close to your children, you are close to your wife and I accept that gaol was particularly onerous for you.

18So, probably against my better judgment I have had you assessed for a further community corrections order which completely, unsurprisingly, you have been found unsuitable.  I mean found unsuitable for obvious reasons that I do not need to go into because you simply have not abided by your obligations.

19Now this is your absolute last chance, Mr Smith.  There are two things that you have to remember.  Sorry, before I go on, the other factor which has had some influence in my deciding to take the decision I am today is that you did not, in fact, offend whilst you were on the run, if I can put it that way.  I suppose in one sense you did because you were using ice and that is an offence but there was no further offending.

20I am hoping the fact that you have been in gaol for 80 days is an experience which will stay with you whilst you are on the community corrections order and will have the effect of making you realise what will happen to you if you do not do what you are supposed to do.  Do you understand?

21OFFENDER:  Yes, Your Honour.

22HER HONOUR:  I have made it as clear as I can.  If you do not abide by the order, if you do not turn up to appointments, if you do not attend for drug counselling, if you do not do those things and I get a report that you are not doing what you are supposed to do and – if it gets to the stage where Corrections says "We're sick of you and we're breaching you" and you come in front of me your counsel, competent though she is, is going to have to conduct a plea of such magnificence that it has never been seen in this court before.  I am sure you can do it, Ms Trumble, there is the challenge.  But your chances of staying out of gaol are just going to miniscule. 

23Can I say God help you if you actually commit an offence.  If you thieve anything, if you fight with anyone, if you get involved in drugs in any way, all right? 

24OFFENDER:  Yes, Your Honour.

25HER HONOUR:  Thank you.  All right I have therefore decided to sentence you as follows, could you stand up please. 

26In relation to the charges of aggravated burglary, recklessly causing injury and criminal damage - can I - let me just have a look, and unlicensed driving, I am going to sentence to an aggregate term of 80 days imprisonment.  Then order that you be released on a community corrections order for period of 18 months, all right?

27OFFENDER:  Yes, Your Honour.

28HER HONOUR:  I am going to order that the 80 days has already been served by way of pre-sentence detention, all right?

29OFFENDER:  Yes, Your Honour.

30HER HONOUR:  Thank you.  Now I need to explain to you the conditions relating to a community corrections order which you should know of by heart but we have to do anyway.

31You must report to the community corrections office within two working days of the making of this order, that is, by Friday morning, all right?  Whilst on the order you must not commit any offence punishable by imprisonment.  That does not mean you have to be sent to gaol.  If you knock off a box of matches from Woolworths, theoretically you could be sent to gaol for that.  That would be a breach, all right?  Getting caught using ice is a breach, all right?  That is offending.

32Whilst on the order you may not leave Victoria without the permission of the community corrections office.  You must not attend on the community corrections office whilst under the influence of drugs of alcohol.  You must obey all lawful instructions of the community corrections office.  You must inform the community corrections office of any change of address or employment within 48 hours of that change.  You must report to and receive visits from the community corrections office. 

33Now I am going to only make one - no, I am not.  I am not going to order unpaid community work because I just do not think it is going to happen.  But you must attend for assessment and treatment for drug use, all right?

34OFFENDER:  Yes, Your Honour.

35HER HONOUR:  You know, you do not want your kids growing up with an ice addled dad.  You did not have that, did you?

36OFFENDER:  No, Your Honour.

37HER HONOUR:  Is the alcohol a problem?

38OFFENDER:  No.

39HER HONOUR:  You sure?

40OFFENDER:  (Indistinct).

41HER HONOUR:  All right.  Did you dad drink?  No?

42OFFENDER:  No he was just a regular drinker.

43HER HONOUR:  Pardon?

44OFFENDER:  My father's just a regular drinker, he has a couple but ‑ ‑ ‑ 

45HER HONOUR:  Yes.  You had plenty of mates with really violent alcoholic dads, did you not?

46OFFENDER:  Yes.

47HER HONOUR:  You keep using ice, you are going to be one of those. 
The whole thing that you said to me the other day was "I can't bear being away from the kids".  You know it sometimes gets to the stage with a dad, it is a bit of a relief your dad is not around and you do not want to be one of those dads.

48The other thing I want to remind you again what I said to you when we were sitting at the Koori Court, all the elders that sit on the Koori Court are getting old now.  Most of them are women.  It is just time you blokes shaped up.  Do you want your kids growing up without any elders?

49OFFENDER:  No, Your Honour.

50HER HONOUR:  Yes well who are going to be the next elders?

51OFFENDER:  I am.

52HER HONOUR:  Yes, and your brother.  You know, while you blokes are raging around and having, you know, a high old time using instead of attending to why you are using, what the problem is, your kids are growing up.  You are letting your kids down in the - they will have no Koori culture and it is because of people like you because you cannot pull your finger out and be the sort of cultural mentor that they need to keep your culture as alive and vibrant as it needs to be, all right?

53OFFENDER:  Yes, Your Honour.

54HER HONOUR:  I am putting aside white invasion, which has not helped the cause, I get that.  But you are what is left of this.  Who are they going to have?  Who are their children going to turn to?  You had grandparents and parents.  They are going to have no-one because all you blokes are dying young or in gaol from drug use and it has just got to stop.  I mean luckily the women are carrying on but there are going to be no males left and a huge part of your culture will die unless people like you turn around and make an effort, do you understand?

55OFFENDER:  Yes, Your Honour.

56HER HONOUR:  All right.  I am also going to order - I do not think I will order supervision, I do not want to make it too difficult but I am going to order judicial monitoring, God help me.  It is like self-flagellation.  It must be my fabulous Catholic upbringing, you know, it is just - I cannot let it alone. 

57All right, I am going to see you again in six months' time and if you have mucked up I do not want you going on the run either.  It just makes it worse.  If you go on the run I am absolutely going to have to gaol you. 

58OFFENDER:  Yes, Your Honour.

59HER HONOUR:  So I will see you in six months, we will get a date.  We will be in Warrnambool.  That is all right, we will do it by remote witness.  We will make it at ten o'clock on 17 August.  What do you think about psychological - do you think it is ‑ ‑ ‑ 

60MS TRUMBLE:  Assessment and treatment? 

61HER HONOUR:  Have a seat, Mr Smith.

62MS TRUMBLE:  There was a report that we had ages ago in this matter which indicated that there was a possible intellectual disability.  We followed that up but it never really went anywhere and there didn't seem to be ‑ ‑ ‑ 

63HER HONOUR:  I thought there really wasn't.

64MS TRUMBLE:  Yes there didn't seem to be any underlying psychological issues.

65HER HONOUR:  No.  It is more about presentation.

66MS TRUMBLE:  Yes but that's ‑ ‑ ‑ 

67HER HONOUR:  No, I do not want it - look I want it to be as achievable as possible.  The main thing is the drugs.

68MS TRUMBLE:  Is the drugs.

69HER HONOUR:  Yes.

70MS TRUMBLE:  That's the main thing, is the drugs.

71HER HONOUR:  All right.

72MS TRUMBLE:  Otherwise he should be fine.  Can I just clarify with Your Honour, when Your Honour read out the charges I didn't write down the possess dangerous article charge which had be uplifted.

73HER HONOUR:  Yes.

74MS TRUMBLE:  But that's included in this sentence.

75HER HONOUR:  I did include it in the sentence.

76MS TRUMBLE:  Yes.

77HER HONOUR:  I realised it was there as I went on.  I should not - I will be editing that bit out of the sentencing (indistinct).  I realise that it was there and
I noted that it was a summary charge that had been uplifted.

78MS TRUMBLE:  Yes.

79HER HONOUR:  I have included that.

80MS TRUMBLE:  All right.

81HER HONOUR:  Did I include - did I include the possession?  All right the possession is the dangerous article because I was just checking to see if that action can be the subject of a - possess dangerous article.  Yes that is also included.

82MS TRUMBLE:  Yes.

83HER HONOUR:  Thank you.  Thank you for that, all right.

84MS TRUMBLE:  All right and then there was - my learned friend was just mentioning the fail to appear but I haven't seen the charge for that.  So I'm assuming ‑ ‑ ‑ 

85HER HONOUR:  No.  I mean there should be one.

86MS TAYLOR:  There should be one, Your Honour, and the note that I've got here says that it's ‑ ‑ ‑ 

87HER HONOUR:  Do we really need to - look, it is - I would simply include it
I must say.  You know, look, I note that he has not appeared and it is quite clear in my sentencing remarks that he has not appeared.

88MS TAYLOR:  Yes.  I just didn't want to have to come back in three months' ‑ ‑ ‑ 

89HER HONOUR:  No, no, no.

90MS TAYLOR:  ‑ ‑ ‑ time to deal with it so ‑ ‑ ‑ 

91HER HONOUR:  Particularly since he is going to be back down in the Latrobe Valley again.

92MS TAYLOR:  Yes.

93HER HONOUR:  Look, if there is a fail to appear it would probably be a summary charge rather than relating to this court.  Perhaps it could be dealt with and moved down to, if it does come up, just try and get it heard down at Latrobe Valley?

94MS TAYLOR:  I'll speak to the informant, Your Honour.  Your Honour ‑ ‑ ‑ 

95HER HONOUR:  That could be the case because this matter was - I mean I first heard this matter at Morwell.

96MS TAYLOR:  Yes that's right.

97HER HONOUR:  So probably it would have been by remote witness and I think - yes. 

98MS TAYLOR:  Well it hasn't been filed yet, Your Honour.

99HER HONOUR:  Pardon?

100MS TAYLOR:  It hasn't been filed yet.

101HER HONOUR:  No.

102MS TAYLOR:  Your Honour, does Your Honour recall the Crown making an application for a disposal order?

103HER HONOUR:  This is the aboriginal - yes.

104MS TAYLOR:  We were going to see how we went and ‑ ‑ ‑ 

105HER HONOUR:  Reward him.

106MS TAYLOR:  ‑ ‑ ‑ and reward him.  But, Your Honour, I've taken it off in any event given that it's a cultural item.

107HER HONOUR:  I agree.  I don't feel comfortable ‑ ‑ ‑ 

108MS TAYLOR:  But I do have the two black handled knives.

109HER HONOUR:  Yes they can go.

110MR TAYLOR:  And the stubby.  So, Your Honour, if I can hand those ‑ ‑ ‑ 

111HER HONOUR:  Thank you for doing that, Ms Taylor, I just never felt good about, you know, it's a cultural item.  No matter how it might - even if it's used for evil and not good I still don't like taking it.

112MS TAYLOR:  I think it I who actually raised it on the last occasion.

113HER HONOUR:  You did.

114MS TAYLOR:  Because I've had this in the past ‑ ‑ ‑ 

115HER HONOUR:  Look, I really ‑ ‑ ‑ 

116MS TAYLOR:  Your Honour, there was one other ‑ ‑ ‑ 

117HER HONOUR:  Anyway it's their dad's isn't it?

118MS TAYLOR:  It was their uncle's.

119HER HONOUR:  Their uncle's, yes.

120MS TAYLOR:  It's a family pointy stick, yes.

121OFFENDER:  No (indistinct).

122HER HONOUR:  Pardon?  It's your brother's.

123MS TRUMBLE:  It's the brother's sorry.

124HER HONOUR:  Can you just go round not hitting people with it?  So you are not going to hang on to it.  It's all very simple.  Just do not get into trouble and your life will work out, Mr Smith.  All right, thank you.

125MS TAYLOR:  Your Honour, there was an application for a 464 order because at the time I believe that's what we had to - we were still making the applications at the time.  So I'll hand that up as well.

126HER HONOUR:  Yes, I am kind of surprised that you have not got one.

127MS TAYLOR:  Apparently not.

128HER HONOUR:  I should note in the sentencing remarks that there are prior convictions. 

129MS TAYLOR:  Yes.

130HER HONOUR:  I think I mentioned - I mean they are essentially annoying Magistrates' Court ones.

131MS TRUMBLE:  Yes, they're low level.

132HER HONOUR:  All right.  Now, Mr Smith, I am ordering that you have to attend the police station.  Ms Trumble will explain it to you, within the next 28 days and you have to let the police take a swab from your mouth.

133OFFENDER:  Yes, Your Honour.

134HER HONOUR:  If you do not do that police are entitled to use reasonable force in order to obtain it.  All right, thank you.  All right, there we go.  Is there anything else that I need to attend to?

135MS TAYLOR:  No, Your Honour.

136HER HONOUR:  Do I need to, given that I have given combination order, do
I need to make a s.6AAA declaration?

137MS TRUMBLE:  It's only a CCO you don't but if it's a combination ‑ ‑ ‑ 

138HER HONOUR:  No I thought it was - look, I'm sorry to, you know - know more than you ladies.  May I also say how nice it is to have a female Bar table on this auspicious International Women's Day. 

139(At this stage the court proceeded with another matter.)

140Thank you.  I will just get Mr Smith to sign that.  There we are. 

141MS TRUMBLE:  Can I approach Mr Smith as well, Your Honour?

142HER HONOUR:  Yes.

143MS TRUMBLE:  Thank you.

144HER HONOUR:  All sorted?

145MS TRUMBLE:  Yes, Your Honour.

146HER HONOUR:  Thank you very much.  All right, good luck, Mr Smith.  I hope it goes well.  I hope when I see you in six months' time I get a glowing report.  Do you reckon I will?

147OFFENDER:  No Your Honour.

148HER HONOUR:  No?  Will I get a good report?

149OFFENDER:  Yes you will, Your Honour.

150HER HONOUR:  Yes good on you.  All right, thank you very much.

151MS TAYLOR:  Your Honour doesn't expect the prosecution to appear for the judicial monitoring ‑ ‑ ‑ 

152HER HONOUR:  Absolutely I don't, no, and thank you for all your assistance in this matter, Ms Taylor, very much appreciated.  All right and thank you,
Mr Trumble, given that I didn't let you, as usual, get a word in edgewise.

153Mr TRUMBLE:  That's all right, Your Honour.

154HER HONOUR:  We've got another matter now.  I'll stay on the Bench, counsel are excused, thank you.  You just have to be taken downstairs, Mr Smith, thank you very much.

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