Director of Public Prosecutions v Smith

[2016] VCC 1288

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

AT MILDURA
CRIMINAL JURISDICTION

CR 16-01038

DIRECTOR OF PUBLIC PROSECUTIONS

v

LAWRENCE SMITH

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	30 August 2016
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2016] VCC 1288

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

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APPEARANCES:	Counsel	Solicitors
For the Department of Education	Ms J. Taylor
For the Accused	Ms C. Duckett

HIS HONOUR:  

1Lawrence Anthony Smith, you have pleaded guilty to one charge of attempted aggravated burglary, one charge of criminal damage, and one charge of contravention of a family violence intervention order.  That intervention order only had two days to run and I propose to just simply give a concurrent sentence in relation to that.

2The charge of attempted aggravated burglary carries a maximum penalty of 20 years, criminal damage a maximum penalty of 10 years.  You are now 49 years of age.  You pleaded guilty at an early reasonable opportunity and you must get the utilitarian benefit of that plea of guilty.  The question of remorse in regard to this matter is somewhat more problematical as you have indicated to psychologists and also through instructions or seem to indicate that it is not really all your fault.

3I accept that you do have an acquired brain injury and I accept that you do have personality problems which make it difficult for you to see the consequences of your action and accordingly, I do not hold that against you.  The fact of the matter is that you have a significant criminal history.  Indeed some few months prior to this matter occurring, you had done a sentence of 241 days, some of that for breaching intervention orders in regard to other people but 241 days for assaulting the victim in this matter. 

4It is indicated in submissions that you only went there to talk to her.  You pleaded guilty to attempted aggravated burglary on the basis of assault and I think that your explanations of all this are simply indicative of really an inability to take responsibility for your actions which may not be all your own fault and I have read the reports that have been tendered. 

5In any event, you have now been in custody for a total of 247 days of which 30 days was spent in relation to another matter.  Accordingly I take that into account in a Renzella way.  The hearing proceeded by way of a quasi, if you like, Koori Court hearing where you came down from the dock and spoke to two elders in a Koori Court type fashion.  I point out to you very, very clearly as was pointed out to you at the start of that conversation that the elders play no part in the sentencing process whatsoever.  Indeed the actual sentence itself is never even discussed with them.  That being the case, as you understood and were told at the time, the sentence is that of the judge and the judge alone.  The elders are there to endeavour to assist you and I take it no further than that at this point in time.

6The summary of the offending is that you breached a family intervention order which as I have said only had a couple of days to run and that is of little concern to me.  I accept that during the course of that intervention order, you and the victim were probably having regular contact and what culminated in all of that was that on 27 December 2015, you were talking to her and arguing with her outside an address in Mildura.  You were apparently aware that Louch, that is the victim, had been associating with a Mr Braunach and you began to confront her about that association stating "Why are you going back to that dog for?".  You verbally abused her by referring to her as a "slut".  She says she began to fear for her safety and ran back towards the address of Braunach.  You pursued her on foot calling out to her that you knew where she was going.  She got back to the address, ran into the backyard and entered via the rear door.  She called out for Braunach to assist her and they held the door closed while you punched and tried to ram the door.  You then took an axe from within the rear yard of the address and began striking the rear door multiple times causing significant damage and dislodging the door handle. 

7Throughout the incident, you were yelling and being verbally abusive to her and she felt threatened.  You then carried the axe into the front yard and approached the front door.  Louch and Braunach armed themselves with a metal bar and a hammer and prepared to defend themselves fearing that you were about to enter and assault them.  Indeed that is what you have pleaded guilty to. 

8You then struck the front door repeatedly with an axe until a large section broke away and the door opened.  Braunach attempted to kick it back but you again smashed it open.  You saw Braunach standing inside armed with a crowbar.  You continued to abuse them for a while and then discarded the axe and left.  The police arrived a short time later and you were arrested a short distance away.

9It is clear that, on the basis of the plea - you are not charged with attempted murder or anything like that - whether the assault was simply to terrify her or whatever, it remains a very serious, in my view, example of an attempted aggravated burglary.  The fear that must have been felt while you were endeavouring to smash and indeed the front door would have seemed to have smashed in with an axe, at that stage in a rage, would amount to terrifying.

10In any event, when interviewed by the police you denied any sort of threats.  You denied damaging the rear door and you told the police your intention was to help her as you were not happy with the choices she was making with her life and the lifestyle that she is living.  How are you going to help her by smashing in the door with an axe is anybody's guess but for reasons I will outline, I am certainly not going to hold you up and examine every one of your explanations.

11The matter is clearly serious, you have been gaoled before for assaulting her in a very frightening way and you must be aware of, even to your limited extent, that you simply cannot do things like this. 

12Of course the application in the normal course of events is of general and specific deterrence but in your situation I am going to moderate those a little because of the material that has been put before me.  There is also the question of denunciation, family violence of this sort and also the question of imposing an adequate punishment.

13In your particular situation, bearing in mind your apparent lack of capacity to judge the wrongfulness and the consequences of actions and that you have done it before, community protection also has to play a significant part.  I am very concerned that you be institutionalised however a significant active custodial sentence has to be imposed. 

14The submission on your behalf initially was for a community corrections order.  I understand from subsequent submissions put in by your counsel that you wish to have a straight sentence.  I indicate to you Mr Smith, that I would not do that.  If you wish to decline parole, that is a matter for you.   The head sentence is such that I am effectively obliged to give a non parole period and it becomes then a matter for you as to whether you wish to exercise or work towards that or not.  

15Insofar as a community corrections order is concerned, you were found to be acceptable reluctantly as I understand it, by corrections.  They told me that you have had 11 of them in the past and breached nine.  On 12 August 2015 when you were given a sentence for inter alia assaulting this victim previously, I note that you appear to have been sentenced for two breaches of community corrections order on that date and given a gaol sentence in relation to each.  It is my view having looked at the matter, even though technically it could fit within what is called a combination order, that the matters referred to in a community corrections order, because of the history and because of the circumstances, would be of little purpose in terms of being punitive.  Also it is a situation where any community corrections order would need to be of extended duration and your capacity to adhere to that would be limited.  I think it is a matter where a parole period is fairer to you in the long term and suits the interest of justice better.

16I then look to matters personal to you insofar as determining the nature of that sentence.   Tendered on your behalf were a letter written by yourself - on your behalf by someone else I suspect - and also two medical reports from a neuropsychologist Vowes and a neuropsychologist Borg and I will refer to those in a moment. 

17Your background is a very depressing one indeed and it is a background which unfortunately is frequently seen in these courts.  You are an aboriginal man and at a very young age, you were put into care.  I accept on the material before me that that was an extremely difficult and devastating period of time for you.  I accept that you, as a young boy, were physically and sexually abused and I am well aware of decisions such as Bugmy which point out in simple terms that when children are treated like that, it is very, very difficult, if not sometimes impossible, to arrest their behaviour when they become older.

18It was put to me, as I understand it, that there had been no real attempts at rehabilitation or the like however, I do note that there have been 11 community corrections orders in the past.  They would appear to have been unsuccessful.  Whether that is because of the damage to you or whatever, it is not a matter for me to investigate.  You have an IQ that has been found to be of 72 which is very much on the borderline.  Any lower than that and it would be regarded as effectively an intellectual disadvantage.  I am aware of the decision in Blackrock about that sort of circumstance. 

19Your background includes drugs and alcohol from a very early age.  Alcohol at around about 13. You have been addicted to heroin, you are currently on methadone as I understand it and you have used amphetamine over a period of time.  I accept also that because of your condition, you are indeed a very poor historian and that is no criticism of you and accordingly where there appear to be inconsistencies in all this, I certainly give you the benefit of the doubt in relation to that.

20The sum total of the neuropsychological reports are that clearly I accept that you have a very significant problem with depression and I take that into account in the sentencing process in the circumstance of Verdins.  You also have symptoms of an acquired brain injury and for these purposes I accept that that is so and you also have symptoms of a post traumatic stress disorder resulting from your childhood and I accept that that is so.  What affect that then has insofar as the principles in Verdins are concerned is another matter. 

21It is a difficult sentencing proposition when moral culpability on one hand is reduced but danger to others is increased.  You probably do better in gaol than you do outside of it which is an extremely unfortunate but not uncommon situation and gives rise to the real difficulties of someone at your age being institutionalised.  Obviously a crushing sentence is to be avoided if that is possible, but all those other factors have to be taken into account.  I think in this situation, the prospects of your rehabilitation are really up to you.  The risk of you reoffending would have to be guarded.  There could be no other description for it.

22The reports of Borg and Vowes I direct will remain on the court file.  I see no point in the situation of a person such as yourself having to sit there while a judge goes through each and every thing that happened to you and each and every problem that has arisen.  Suffice to say that you have multiple difficulties and I have outlined the majority of them and I have endeavoured as best I can to take that into account. 

23Looking at the circumstances overall, the Crown's submission was that the amount of gaol time involved would not allow for an order which contained a community corrections disposition.  In the end, I am not satisfied that that is the case and I am going to give you an opportunity for parole which is a relatively larger portion of your sentence than might otherwise have been the case.  It is up to you how you go about all this, but the circumstances are, as I have indicated, that it is serious offending indeed and one has to be alert to all the circumstances that are involved.  I, having been in Koori Court on many occasions, have a real concern for people such as yourself and the damage that has been done to you, but in the end I have to impose a sentence that is appropriate according to the law.   As I say, I have taken into account all the matters referred to in those psychological reports and all the matters referred to in the very helpful submissions of your counsel. 

24Accordingly, on Count 1 of attempted aggravated burglary, bearing in mind it is an attempt and bearing in mind what were the current sentencing practices prior to the decision in Hogarth, you are sentenced to be imprisoned for a period of two and a half years.

25On Charge 2, three months concurrent.  On Charge 3, one month concurrent.

26That gives an effective head sentence of two and a half years and I direct that you serve a minimum term of 18 months before becoming eligible for parole and I direct that 217 days be reckoned as having been served under this sentence and I say that but for your plea of guilty, you would have been sentenced to be imprisoned for a period of four years with a minimum term of three, pursuant to s.6AAA.  

27Does that all make sense?  Is there something wrong with that?

28MS TAYLOR:  No, I was just checking the PSD, Your Honour.

29HIS HONOUR:  Yes, I'm sure it is 207, I have added on ten from the last time.  That is allowing for 30 days Renzella in that way. 

30MS TAYLOR:  Yes, that's correct, Your Honour.

31HIS HONOUR:  No other orders that need to be made?  There was no 464 or anything like that as I recall.  

32MS DUCKETT:  No I don't believe there were any orders, Your Honour.

33HIS HONOUR:  I probably should also point out, I didn’t mention it in the circumstances, there were no victim impact statements either.  Just so people are aware of that.  Thank you ladies.

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