R v Inglis-Smyth

[2019] NSWDC 944

District Court

New South Wales

Medium Neutral Citation:

R v Inglis-Smyth [2019] NSWDC 944

Hearing dates:

23 August 2019

Date of orders:

23 August 2019

Decision date:

23 August 2019

Jurisdiction:

Criminal

Before:

Bright DCJ

Decision:

Total term of imprisonment of 3 years with a non-parole period of 18 months.

Catchwords:

SENTENCING — Relevant factors on sentence — Form 1 offences

SENTENCING — Subjective considerations on sentence — Drug addiction — Special circumstances — Bugmy principles

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act No 1 of 2002 (2002) 56 NSWLR 146

Bugmy v R [2013] HCA 37; 249 CLR 571

Imbornone v R [2017] NSWCCA 144

R v Ponfield (1999) 48 NSWLR 327

Category:

Sentence

Parties:

Regina (Crown)
Jake Inglis-Smyth (Offender)

Representation:

Solicitors:
Mr S Allan, DPP (NSW) (Crown)
Ms H Dean, Legal Aid (NSW) (Offender)

File Number(s):

2018/00313774

Publication restriction:

Nil

SENTENCE

1. The offender, Jake Inglis-Smyth, 24 years of age, appears for sentence in relation to one offence of aggravated break and enter and commit serious indictable offence, an offence pursuant to s 112 (2), Crimes Act 1900 (NSW). The maximum prescribed penalty for that offence is 20 years imprisonment. There is a prescribed standard non-parole period of 5 years.

2. When dealing with the offender for that offence, the Court is taking into account a further three offences on a Form 1 as follows:

1. Give false name - Pursuant to s 13(a), Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). The maximum prescribed penalty for that offence is two penalty units; and

2. Two offences of possess prohibited drug - Pursuant to s 10 (1), Drug Misuse and Trafficking Act 1985 (NSW) relating to cannabis and oxycodone. The maximum prescribed penalty in respect of each of those offences is two years imprisonment and/or 20 penalty units.

3. The offender is also being sentenced for one offence on a s 166 Certificate of resist officer in the execution of duty, an offence pursuant to s 58, Crimes Act. The maximum prescribed penalty for that offence when dealt with on indictment is five years imprisonment.

4. The offender pleaded guilty at the Wyong Local Court on 2 April 2019. Having regard to the timing of the plea, I propose to allow a discount on sentence of 25%.

5. The offender has been in custody since his date of arrest, that is 14 October 2018. Whilst in custody, he has served a non-parole period of six months between 14 October 2018 and 13 April 2019 in respect of two offences of destroy property, one offence of contravening an Apprehended Violence Order, one offence of stalk and intimidate and one offence of common assault. All those offences were domestic violence offences.

6. He has also served a non-parole period of five months between 14 October 2018 expiring on 13 March 2019 in respect of one offence of common assault, also a domestic violence offence. In my view, in circumstances where all the above offences were served concurrently, I propose to make the sentence imposed today cumulative upon those sentences. Accordingly, the sentence imposed today will date from 14 April 2019.

7. The Crown tendered the following material on sentence:

Exhibit A - Crown sentence bundle; and

Exhibit B - Crown written submissions.

The Agreed Facts

8. The Agreed Facts are as follows. The victims, Mark Ritchie and Marie Davis, live in Long Jetty. On Sunday 14 October 2018 at 9.15pm, the victims went to bed. The victims had secured and locked all doors and windows of the property except for a sliding door of the lounge room. The lock on the sliding door was not functioning but the victims had ensured the door was closed.

9. At approximately 11.30pm, the male victim woke to strange noises from the lounge room area and got out of bed to determine the source. On entering the lounge room, he saw the offender crouching beside the lounge holding a torch. The victim said, “What are you doing in my house?” The offender replied, “I’ve been chased by someone and I’m trying to hide”. The victim approached the offender and observed that the offender was wearing a black backpack. The victim punched the offender on the jaw whereupon the offender began to struggle with the victim in an effort to get away. The victim called out to the female victim to call police whilst he continued to restrain the offender.

10. The victim ran from the bedroom to the kitchen where she observed the male victim wrestling with the offender. The female victim called triple-0 and remained on the line and continued to observe the male victim and the offender until police arrived. The male victim and the offender continued to wrestle which eventually spilled from inside the property to outside the property in front of the garage.

11. The male victim told the offender to empty his backpack and observed the offender had a mobile phone, drugs, gloves, torches and other equipment. The offender was pleading for the male victim to let him go saying words to the effect of, “Someone is after me. I have kids”.

12. The female victim heard the offender say, “Some cunts are trying to bash me”. The female victim noticed that the PlayStation had been unplugged from the television and was positioned on the lounge with the cords wrapped around it. She also noticed that the back screen door was wide open and there was a pair of shoes at the door that did not belong to her or the male victim.

13. The offender had taken a set of keys with the garage door remote that belonged to the victims and placed them in his pocket. These were located during a search of the offender following his arrest.

Section 166 Certificate (resist an officer while in the execution of his duty)

14. At approximately 11.45 pm police arrived at the address. Police grabbed the offender to make an arrest, however, the offender attempted to push and shrug off police who were attempting to arrest him. Police were required to take the offender to the ground to arrest him.

Matters to be taken into account on a Form 1

15. The offender was asked to provide his details to police. He provided a false name and address. A search was conducted on the offender and a small re-sealable bag containing approximately 1 gram of cannabis was located in his pocket and upon searching the backpack police located 11 oxycodone tablets. The offender does not have a prescription for this medication.

16. Those facts clearly disclose very serious objective criminality. For citizens to be confronted in their home at night by an offender is particularly reprehensible conduct. Both general and specific deterrence are important considerations on sentence.

Assessment of objective seriousness

17. In assessing the objective seriousness, I have had regard to the factors identified in the R v Ponfield (1999) 48 NSWLR 327 and I have taken into account the following factors:

1. The property stolen was a set of keys and a garage door remote. This property was immediately recovered upon the apprehension of the offender at the premises;

2. The offence was not accompanied by vandalism or other significant property damage;

3. The offence was not committed at the premises of the elderly, sick or disabled;

4. The offender does not have a prior record for like offences;

5. The offence was unsophisticated and not the result of professional planning, organisation or execution. I am satisfied there was some limited planning in circumstances where the offender was carrying gloves and torches in his backpack;

6. No actual trauma was suffered by the victims, however, force was used when the victim sought to restrain the offender; and

7. The offending occurred at night time when the occupants were asleep.

18. Having regard to those factors, I assess the objective seriousness as being just below the middle of the range.

Aggravating features

19. The Crown relied upon two aggravating features namely, that the offending occurred in the home of the victim and the offending was committed whilst the offender was on conditional liberty. I accept that each of those aggravating features is established.

No victim impact statement

20. Whilst no victim impact statement was provided to the Court, I have no doubt that this would have been a very traumatic event for the victims causing high emotions.

21. One of the purposes of sentencing is to recognise the harm done to the victims (see s 3A (g), Crimes (Sentencing Procedure) Act).

Subjective circumstances

22. The offender is 24 years of age.

23. He has a criminal history commencing in 2015 when he was 21 years of age. He was dealt with for a number of driving offences together with one offence of take and drive conveyance for which he received a s 9 bond for 2 years.

24. In 2016, he was called up in respect of that bond and sentenced to a further s 9 bond for 2 years. In 2018, he was again called up and sentenced to a s 9 bond for 12 months.

25. In 2016, he was dealt with for two offences of common assault. He received a total term of imprisonment of 7 months with a non-parole period of 2 months. In respect of the second offence, he received a total term of imprisonment of 9 months with a non-parole period of 2 months.

26. In 2016, he was also dealt with for an offence of larceny, in respect of which he received a term of imprisonment of two months, and an offence of common assault (domestic violence), in respect of which he received a sentence of two months.

27. Again in 2016, he was dealt with for a further offence of common assault (domestic violence) and an offence of stalk and intimidate. In respect of each of those matters he received a sentence of 2 months imprisonment. Also in 2016 he was dealt with for offences of destroy or damage property for which he received a sentence of imprisonment for 7 months with a non-parole period of 2 months. In the same year, he was dealt with for two counts of contravening an Apprehended Violence Order. He received a total term of 7 months with a non-parole period of 2 months.

28. On 8 January 2019, he was dealt with for the following offences:

• Destroy or damage property (domestic violence) for which he received a community correction order for 2 years;

• Possess equipment to administer drugs for which he received a community correction order for 2 years;

• Common assault (domestic violence) for which he received a total term of imprisonment of 10 months with a non-parole period of 5 months;

• Possess prohibited drug for which he received a community correction order for 2 years;

• Destroy or damage property for which he received a community correction order for 2 years; and

• A further offence of possess prohibited drug for which he received a community correction order for 2 years.

He was also dealt with for multiple offences of drive whilst disqualified.

29. On 8 January 2019, he was dealt with for the following offences:

• Two counts of destroy or damage property (domestic violence). In respect of each of those offences, he was sentenced to 14 months imprisonment with a non-parole period of 6 months;

• Contravening an Apprehended Violence Order, stalk and intimidate and common assault (domestic violence). In respect of each of those matters, he was sentenced to imprisonment for 14 months with a non-parole period of 6 months; and

• A further offence of drive while disqualified in respect of which he received a Community Corrections Order for two years.

30. Having regard to the offender’s criminal history, I am satisfied that it disentitles him to any leniency on sentence.

31. The following material was tendered on behalf of the offender during the sentence proceedings:

• Exhibit 1 - Letter under the hand of Louise Smyth, the mother of the offender, undated;

• Exhibit 2 - Report of Anne Lucas, dated 4 June 2019; and

• Exhibit 3 - Defence written submissions.

32. The offender’s background is outlined in the report of Anne Lucas, forensic psychologist (Exhibit 2) and the letter prepared by the offender’s mother (Exhibit 1).

33. Ms Lucas assessed the offender at the Macquarie Correctional facility on 28 May 2019. The offender reported that he was born on the Central Coast. His parents separated in 2000 when he was approximately six years old as a consequence of his father’s amphetamine use.

34. His father had a heart attack when the offender was two years old and a motor vehicle accident when the offender was five years old, a result of which he sustained serious injuries.

35. After his parents’ separation, the offender initially lived with his mother, spending weekends with his father. In 2002 when the offender was eight years old, he reported that his father suffered a psychotic episode as a result of which his father discharged a rifle at people in the street. The offender was present when his father was arrested. He described this as a distressing event.

36. After this event, the offender reported difficulties at school and was expelled in Year 8. He described himself as a slow reader but not illiterate and he had adequate numeracy skills. The offender reported that he had his first girlfriend when he was 13 years old. She was four years older. She fell pregnant just before the offender turned 15. He left school to get a job to try and support his girlfriend and her baby.

37. The offender reported being “stressed” as a new parent and began using cannabis to address his anxiety. He later began using ice. As a consequence of his drug use, his girlfriend ended their relationship. The offender cared for his child for the first nine months after the separation. Ms Lucas noted that the offender “reported a solid bond with his child. He advised that his determination to be a better parent has been one of the motivation factors in him ceasing drug use since his arrest”.

38. The offender has two children from a subsequent relationship which was characterised by mutual drug use.

Circumstances at the time of the offending

39. At the time of the offences, the offender reported that he was living with friends on the Central Coast and was engaged in drug use. Ms Lucas stated as follows:

“With hindsight, Mr Inglis-Smyth reported he could not see that his life since adolescence has been marred by drug use. He was of the opinion that he had used drugs to help battle the anxiety he struggles with. Much of this anxiety was attributed to interpersonal conflict or challenge”.

40. The offender reported that he was heavily affected by drugs at the time of the commission of the offences and he had no recollection of the day. I note that intoxication by drug use is not a matter in mitigation of sentence: see s 21A (5AA), Crimes (Sentencing Procedure) Act.

41. The offender indicated that he has never undertaken drug rehabilitation in circumstances where he has not previously acknowledged his drug use issues.

42. The offender reported that he has had some employment as a motor vehicle mechanic, although he does not hold trade qualifications in this area.

Drug and alcohol issues

43. The offender reported childhood exposure to paternal drug taking and reported commencing cannabis use in his teens. Ms Lucas noted as follows:

“In providing a drug abuse history, Mr Inglis-Smyth endorsed use of heroin, methylamphetamine, Xanax and oxycodone. He reported that for a substantial period of his adult life, he has been a daily user of drugs. Mr Inglis-Smyth maintained that he has not used any substances during his present incarceration over a period of seven months. He was of the opinion that the symptoms of anxiety that he previously battled were now being held in check by the psychotropic medication he has been prescribed. As such his desire to use illicit substances has been lessened”.

44. Ms Lucas conducted a psychological assessment and concluded as follows:

“The description provided by Mr Inglis-Smyth suggested the presence of symptoms associated with social anxiety disorder. He also described a number of characteristics associated with personality disorder, although a diagnosis of personality disorder based on a single interview with Mr Inglis-Smyth could not be confidently made. In respect of cognition, Mr Inglis-Smyth did not present as suffering from intellectual deficits”.

45. Ms Lucas was of the opinion that the offender reported transient depressive symptomology. She stated as follows:

“Mr Inglis-Smyth impressed as an individual who suffers from anxiety in social situations and has an incomplete formation of his personality. He struggles with defining who he is and what his goals are outside his relationships. Such characteristics are suggestive of personality disorder. At this assessment, however, he did not display the emotional dis-regulation typically associated with personality disorder. Features of personality disorder should be further explored and addressed in any treatment Mr Inglis-Smyth engages in as diagnosis of personality disorder is strongly associated with substance abuse”.

Treatment recommendations

46. Ms Lucas recommended that the offender engage in the EQUIPS addiction program and that he engage with a psychologist to address issues that have contributed to his substance abuse problems. She also recommended he continue with his current medication regime.

47. Having regard to the offender’s background as outlined in the report of Ms Lucas and as also confirmed by the offender’s mother in evidence, I am satisfied that the offender has suffered childhood trauma and deprivation. He was exposed to drug use at an early age. It is unsurprising in my view that he in turn began to use drugs. These childhood experiences, in my view, warrant a reduction in his moral culpability for the reasons set out in Bugmy v R [2013] HCA 37; 249 CLR 571 at [42] to [44].

Other material on behalf of the offender

48. The offender’s mother, Louise Smyth, gave evidence during the sentence proceedings. She indicated that the offender had expressed remorse to her and he understood how scary it would have been for the people in the house. She indicated that he is currently at Dubbo in custody. She lives at Muswellbrook and she finds it very difficult to travel to Dubbo and she has only attended on one occasion. She speaks to the offender regularly.

49. She indicated that she has spoken to the offender about doing rehabilitation programs and he has indicated a willingness to do different programs. She said he was willing to engage in counselling. She regarded that counselling would be good for both her and the offender.

50. In her view, the offender does require grief counselling. She currently lives with her two youngest children aged 12 and seven. She does not use any drugs and she indicated she would not tolerate drug use if the offender came to live with her upon release.

Submissions on sentence

51. It was submitted on behalf of the offender that he has some prospects of rehabilitation in circumstances where he is supported by his mother. He is able to return to life with his mother upon release. It was submitted that the Court would find special circumstances and vary the ratio between the non‑parole period and the parole period in circumstances where this is the offender’s first substantial term in custody.

52. In relation to the commencement date it was acknowledged that it was a matter of discretion for the Court having regard to the sentences he has served whilst in custody bail refused in relation to this matter.

53. It was submitted on behalf of the offender that the sentence should date from some time before 14 April 2019. It was acknowledged that there was required to be some accumulation.

54. The Crown relied upon written submissions (Exhibit B). The Crown did not consider that the level of childhood deprivation was that contemplated by Bugmy v R and that there should be no moderation of sentence or a reduction in moral culpability. I have indicated that I have rejected that submission.

51. In relation to the offender’s assertions to Ms Lucas that he was drug free, the Crown indicated that the custodial history indicated that there had been penalties imposed whilst he was in custody for possess drug implement and refused a drug test.

Prospects of rehabilitation

56. Any view of the offender’s prospects of rehabilitation must necessarily be guarded in circumstances where he has a longstanding drug history and those issues are currently untreated. Ms Lucas was of the opinion that the offender was a medium risk of re-offending.

57. It is positive that the offender has indicated that he is motivated to remain drug free and to engage in treatment for drug issues and anxiety. He is also very fortunate indeed to have the ongoing support of his mother who has offered him a place to live upon his release from custody.

58. I have no doubt that when the offender is released, it will be a difficult journey to remain drug free. The Court is hopeful that with proper assistance and treatment that he can look forward to a much more positive future which is free from drugs.

59. At this stage, I am unable to find that the offender is unlikely to re-offend.

Remorse

60. The offender has expressed remorse to Ms Lucas during the assessment and also to his mother. He told Ms Lucas that “he regretted his actions” and she was of the opinion that the offender showed empathy for the victims. There was no attempt in Ms Lucas’ view to minimise the offender’s criminal behaviour. In circumstances where the evidence of remorse is not on oath, I give such evidence limited weight (see generally Imbornone v R [2017] NSWCCA 144 per Wilson J at [57]).

Special circumstances

61. It was submitted on behalf of the offender that special circumstances are established having regard to firstly, the need for a longer period of supervision on parole to address drug related issues, secondly, because it is the offender’s first significant custodial sentence and thirdly, to address the question of the risk of institutionalisation.

62. I accept those submissions and I propose to vary the statutory ratio between the non-parole period and the parole period pursuant to s 44(2), Crimes (Sentencing Procedure) Act.

Determination

63. In determining the appropriate sentence, I have had regard to the purposes of sentences set out in s 3A, Crimes (Sentencing Procedure) Act.

64. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate pursuant to s 5(1), Crimes (Sentencing Procedure) Act.

65. I have had regard to the objective gravity of the offence, the relevant prescribed maximum penalty, the offender’s subjective circumstances and the prescribed standard non-parole period in accordance with s 54B(2), Crimes (Sentencing Procedure) Act.

66. I have taken into account the Form 1 matters in accordance with the principles enunciated in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act No 1 of 2002 (2002) 56 NSWLR 146.

67. Mr Inglis-Smyth, in relation to the offence of aggravated break and enter and commit serious indictable offence, you are convicted.

68. Taking into account the Form 1 offences, you are sentenced to a non-parole period of 18 months to date from 14 April 2019 and expire on 13 October 2020. The total term of imprisonment is 3 years to expire on 13 April 2022.

69. The starting term for that sentence was 4 years which I have discounted by 25% for your plea of guilty.

70. I direct your release to parole on 13 October 2020.

71. I have found special circumstances meaning I have varied the time spent in custody and the time on parole so I have given you less time in custody and more time on parole so once you are released you will have 18 months on parole and, hopefully, that will assist you. I am hopeful that Probation and Parole will provide you with guidance, assistance and support so if you remain committed to addressing your drug issues, there are professionals to help you.

72. In relation to the offence of resist officer in the execution of duty which is on the s 166 Certificate, the offender is convicted.

73. He is sentenced to a community correction order for a period of 2 years to which the standard conditions apply:

1. The offender is to be of good behaviour; and

2. The offender is to appear before the Court if called upon to do so.

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Decision last updated: 17 November 2020