Director of Public Prosecutions v Smith
[2016] VCC 581
•15 April 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01079
| DIRECTOR OF PUBLIC PROSECUTIONS | Plaintiff |
| v | |
| SHAWN SMITH | Defendant |
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JUDGE: | Her Honour Judge Gaynor | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | Friday 15 April 2016 | |
CASE MAY BE CITED AS: | DPP v Smith | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 581 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J.E.Taylor | |
| For the Defendant | Mr L.K. Barker |
HER HONOUR:
1 Shawn Ernest Smith, you have pleaded guilty before me to one charge of aggravated burglary, one charge of recklessly causing injury and one charge of criminal damage. The facts underlying your offending are as follows.
2 On 10 September 2014, between about one and 2.30 pm, the victim Daniel McMahon was home in his bedroom with two other persons; Thomas Hay and Patricia Forsyth. Hay answered a knock at the door recognising two men standing there as you and your brother, Lindsay. Lindsay asked if Danny was there, Hay replying he had gone out. Lindsay then asked when Danny would be back and so Hay stepped outside and pretended to call Danny on his mobile phone saying he would be back in an hour.
3 Ms Forsyth then walked out of the house and Lindsay asked if Danny was there and she said yes. Hay however repeated that Danny was gone and went back to walk inside, but Lindsay pushed past the two of them and went inside. You standing in the door way preventing Hay and Forsyth from going inside after him. Daniel went to walk to the front door when he saw the two of you, "barge in". Your actions in entering the house underlie Charge 1, aggravated burglary with an intent to assault.
4 The two of you then grabbed Daniel around his shoulder area, dragged him to the front door. He tried to grab the doorframe to prevent being dragged out but the door was closed on his right hand so he had to let go. Those actions underlie Charge 2, recklessly causing injury.
5 You then dragged Daniel over the front porch onto the front lawn and when he fell to the ground and his mobile phone fell out of his jacket, you picked up the phone. This underlies Charge 3 which I neglected to mention when outlining the charges which you faced; that is a charge of theft.
6 The two of you then hit Daniel to the upper body and head region including his left eye causing it to swell and bleed. These actions also underlie Charge 2, recklessly causing injury.
7 Neighbours called out from across the road and the two of you walked away and Daniel went inside where he called his father telling him to get there as quickly as he could. Daniel's father Barry, saw the two of you running south from Daniel's house as he drove to his son's home, and he then went inside and saw Daniel with blood down the left side of his face. Daniel and Barry then got into Barry's car and drove to your home in Queen Street to speak to your mother Vicki Mobourne. Barry got out of the car, walked up towards the house and your mother came out with her arms up as if she was trying to calm the situation and then the two of you came out and Barry argued with Lindsay in the street.
8 A 16 year old neighbour Mikala Payne was arriving home from school when she saw two men in the middle of the road yelling and dancing together, she said, with their fists up and she went into her house and locked the security door. She then saw the two of you punching each other to the head and upper body and eventually at the urging of another neighbour, rang police.
9 While Daniel and Barry were still in front of their house, the two of you drove up and Lindsay got out of a car with a club which looked like a traditional Aboriginal club about three feet long and his actions underlie summary Charge 12, possess a dangerous article which applies to your brother only.
10 Barry looked out the kitchen window to see if the two of you were still there and saw the two of you were up close to the house and you were standing in the driveway holding a large knife. You pleaded guilty to a summary charge of carrying a controlled weapon without excuse and this applies to that charge. Police were then called by Barry who heard the two of you yelling, "Get out, get out here" and while he was still on the phone, Lindsay smashed the window with the club. Police arrived soon after.
11 Ms Payne saw the two of you drive back to your Queen Street home and saw you jump over the front gate and into the back yard. She then saw your brother Lindsay being arrested by police who had arrived. Essentially, you were seen by police who were patrolling in the Moe area and saw the two of you running south. The two of you were arrested.
12 The two of you got back in your car and drove back to your home followed by a police in a car and as the car slowed down you exited the passenger side of the car and ran into the house. It was then searched by police but they could not find you there. Eventually you attended at Moe police station voluntarily at 5.20 that day where you were arrested and interviewed conducting a "no comment" record of interview.
13 The charges against you were resolved on the day of the contested committal hearing on 22 June 2015 before witnesses were called, and the matter proceeded by way of straight hand-up brief and proceeded by way of plea. It is accepted that this was an early plea on your behalf.
14 I now turn to your personal circumstances.
15 You are 28 years of age and you are the middle child of six boys, six brothers, two of whom have previously died. You told consultant psychiatrist Remy Glowinski whose report dated 18 November was tendered on the plea that you grew up in a good family. You said that your parents treated you well and always made sure of your needs. After completing prep at a school in Morwell, your family then moved to an Aboriginal mission near Echuca where you went to the local primary school between grades 1 and 3. You went to Moama primary school between grades 4 and 6 and to high school in Echuca for years 7 and 8 and then went to an Aboriginal school in years 9 and 10. You said you did not have any difficulties either with discipline or your studies.
16 You have however, never worked. You have some formal qualifications which interestingly you got when you were in Malmsbury Youth Training Centre which includes a forklift licence and other heavy vehicles but you have never used them. Your second oldest brother died in 2003 of pneumonia which you told Dr Glowinski was a pivotal point for you and that your behaviour deteriorated after this, and another brother died in 2010. It appears that in 2004 you coped with your brother's death by drinking heavily and chromed and in fact, continued chroming for two or three years. You also reported using heroin and amphetamines. You have done some drug and alcohol counselling as part of the parole condition, and as part of some rehabilitation in an Aboriginal drug and alcohol facility in Gippsland whilst you were on a community based order.
17 You have a very long prior criminal history going right back to your teens. The criminal history does not include Children's Court appearances but it would seem, the history going back to 2005, that they have not been included in your prior criminal history report. The offences for which you have been dealt with include property damage, dishonesty offences, offences of drinking, stealing cars, driving offences, thefts from shops. There have been community based order breaches and you have been gaoled along the way; last coming out of gaol in about 2012 after having been sentenced on a breach of community based order and other dishonesty offences in April and then August of 2011. You said that since that time you had been leading fairly sedate kind of life.
18 You told Dr Glowinski that you were not drunk on the day of this offending, that you knew the victims through acquaintances saying but believed that they had been engaging in drug dealing, including to some of your nephews. This appears to have been the basis of the fight.
19 You are in a relationship and have five children.
20 It appears that you are a fairly committed father, and it was extremely helpful, particularly listening to your mother, when the matter proceeded by way of Koori Court round table conference during the plea. There have been some sort of various administrative difficulties in the period since the plea was heard in November last year at the Koori Court and to now when I have come to sentence you. You and your brother have both been really terrible at keeping up with your legal representatives and in attending for the psychological assessments that were ordered on the plea.
21 Nevertheless, you have managed to stay out of trouble, which is of primary concern to this court. I am satisfied that there is a considerable gap in the period of time since you last offended and your presentation in this court. I understand that you and your brother had concerns about the activities of the persons whose home you invaded in committing these offences, but you cannot take matters into your hands in that way, Mr Smith.
22 It was submitted on behalf of you by your defence counsel that I should deal with you by way of a community corrections order, a disposition which was not resiled from by the prosecution; in other words, this was not seen as an unsuitable way to deal with you in the circumstances, and I have had you assessed for suitability for placement on such an order and you have been found suitable. All right.
23 I am going to place you on the order and I am going to make it an aggregate order because the offences all arise out of the one incident. I can only place you on a community corrections order if you agree to it, Mr Smith, all right. So I am going to tell you what the conditions are and when I have done that, I am going to ask you to tell me whether or not you agree to being put on it. All right?
24 So what the conditions are is once you are placed on the order you have to go and report to the Community Corrections Centre by Tuesday of next week. All right?
25 OFFENDER: Yeah.
26 HER HONOUR: While you are on the order, if you change your address or if you have got a job and you change that job, you have to tell Corrections about it within 48 hours. All right? While you are on the order, you cannot leave Victoria unless Corrections say you can. All right?
27 OFFENDER: Yeah.
28 HER HONOUR: While you are on the order, you cannot commit any offence for which you could go to gaol. That does not mean you have to go to gaol, it just means if you do a shoplift you could go to gaol for that, so that would be enough to breach the order and bring the matter back before me and I would sentence you on this again. Does that make sense to you?
29 OFFENDER: Yeah.
30 HER HONOUR: While you are on the order, you have to do what Corrections tell you to do. All right? And you have to have visits from and go and have visits with the Community Corrections Office. All right?
31 OFFENDER: Yeah.
32 HER HONOUR: I am going to order that you do 100 hours of unpaid community work. Have you done that before?
33 OFFENDER: No.
34 HER HONOUR: It just means you are going to have to go and do some work in the community. It would be like cleaning graffiti or painting things or - I am not sure what it will be. All right? But you have got to do 100 hours of that. I am not going to give you any more than that because I actually do not know that you could cope with more than that, and the main purpose of this order is because you have to attend to be treated for alcohol problems and for mental health problems - no, beg your pardon - you have go to and be assessed and treated for alcohol use, even though you have been staying off the grog, I want to make sure you stay off the grog. All right? And you also have to go to programs that are designed to help you not offend again. All right?
35 OFFENDER: Yeah.
36 HER HONOUR: You are going to be under supervision. I want to say this to you, Mr Smith, so you are really clear. You know the last time you came to court and I got pretty annoyed because the only one who was getting organised was your mother and not you. Do you remember that?
37 OFFENDER: Yeah.
38 HER HONOUR: One of the ways you can get into real trouble on this order is if you do not keep appointments, and people have to be able to get in contact with you. So I do not care if your house does burn down again while you are on the order. If it does, you still have to let people know where you are from Community Corrections. And if you cannot make it to something, you have to tell them why, and it has got to be a good reason why. All right?
39 OFFENDER: Yeah.
40 HER HONOUR: So I am going to order that the order lasts for 18 months so you have got to keep your nose clean and do what the Community Corrections Centre tells you for the next 18 months. All right?
41 OFFENDER: Yeah.
42 HER HONOUR: Can you tell me what you reckon you have to do while you are on the order, just so I know you have got it? I know I rambled it off at you. What is one of the things that is really important for the next 18 months?
43 OFFENDER: Stay out of trouble.
44 HER HONOUR: Yes. What is another thing that you have to do while you are on the order?
45 OFFENDER: Keep my appointments.
46 HER HONOUR: Yes, that is the one. You stay out of trouble and you keep your appointment, it will be sweet and no one will see you again here. All right? Good. I am wondering if I should do judicial monitoring. I do not think I will.
47 MR BARKER: I do not think so, Your Honour.
48 HER HONOUR: Only because I do not want to have to.
49 MS TAYLOR: Go to Latrobe Valley.
50 HER HONOUR: Yes.
51 MR BARKER: But - - -
52 HER HONOUR: It is the turning up and having to adjourn it four thousand times that is worrying me, and if he gets into trouble, he will be breached and I will hear about it anyway.
53 MS TAYLOR: It can work like a treaty in some cases, Your Honour, but in this case - - -
54 HER HONOUR: I agree with you and I do not think it is going to win this one.
55 MR BARKER: I agree.
56 MS TAYLOR: And also Your Honour is not in Latrobe Valley as often as some other people are there.
57 HER HONOUR: I am hardly there. No, I do not go there much at all. I am usually a great believer in judicial monitoring and I use it a lot, but I have got a feeling in this case all it would end up doing is being annoying for everyone, so I am just not going to do it. All right.
58 MS TAYLOR: Your Honour, we decided not to do the disposal order, did we not?
59 HER HONOUR: Yes, if he kept his nose clean - - -
60 MR BARKER: It is the other way around, Your Honour, in fact. I think the disposal order is in respect of Lindsay and it was Lindsay who had those items - - -
61 HER HONOUR: Lindsay was the one who was brandishing it.
62 MR BARKER: And I think he was the one who was - it was relevant to him, not my client.
63 HER HONOUR: All right. So I won't - but I sort of said if they did the right thing I might not order that this cherished family heirloom which appears to have been misused on this occasion, might not get disposed of.
64 So look Mr Smith, really just stay off the grog. Stay out of trouble and keep your appointments. All right?
65 OFFENDER: Yeah.
66 HER HONOUR: Mr Barker will talk to you about that. All right? You have just got to let them know where you are so they can get a hold of you. All right? The main thing is no drinking and staying out of trouble but the appointments are important too. All right? Are you prepared to go on the order?
67 OFFENDER: Yeah.
68 HER HONOUR: Yes, good on you. Have a seat and we will just get the paperwork done.
69 MR BARKER: May I approach my client, Your Honour, to help him sign that?
70 HER HONOUR: Of course. And because I have handed down a Community Corrections order I do not have to make a declaration pursuant to s.6AAA.
71 MS TAYLOR: No, you do not, Your Honour.
72 HER HONOUR: Thank you. We will just get you to sign this, Mr Smith. It is one of the few cases where I think judicial monitoring would be more of a curse than a blessing. Thank you very much. I thank counsel very much for their assistance in this matter.
73 MR BARKER: Thank you, Your Honour.
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