R v Paul Robert SMITH

[2006] NSWDC 156

CITATION:	R v Paul Robert SMITH [2006] NSWDC 156
HEARING DATE(S):	01/06/2006
JUDGMENT DATE:	1 June 2006
EX TEMPORE JUDGMENT DATE:	06/01/2006
JUDGMENT OF:	Berman SC DCJ
DECISION:	Remand under s11 Crimes (Sentencing Procedure) Act
CATCHWORDS:	Criminal Law - Sentence - Demand money with menaces
LEGISLATION CITED:	Crimes Act Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Di Simoni (1981) 147 CLR 383 R v Bakewell unreported CCA 27 June 1996
PARTIES:	The Crown Paul Robert Smith
FILE NUMBER(S):	05/11/0706
SOLICITORS:	NSW DPP Legal Aid Commission

SENTENCE

1 HIS HONOUR: Paul Robert Smith appears for sentence today having pleaded guilty to an offence of demanding money with menaces. That plea was entered on the first day that Mr Smith was due to stand trial. However he was due to stand trial for a different offence. It appears that the Crown concedes that his plea of guilty to demand money with menaces was made at the first opportunity. Thus even though the matter had occupied the time of the courts, both in the Local court and this Court to the stage where Mr Smith’s trial was ready to proceed, it is in these circumstances appropriate that I treat the plea as being entered at the earliest opportunity.

2 Mr Smith suffered a motorbike accident in 2001 and is now in a wheelchair. Despite that fact, he has continued to commit offences involving violence and threats of violence. Whilst Mr Smith is deserving of sympathy, and indeed a great deal of sympathy, for the situation in which he finds himself, the fact that he is confined to a wheelchair does not give him a licence to commit serious offences without being punished. That is an important factor to bear in mind as I outline the facts of the present matter.

3 Contact was made between the offender and a DG over a sex chat line and they agreed to meet. Some time before the offender went to DG’s premises he told him he was in a wheelchair. After he arrived, sexual activity took place. At about 4.30am on 18 April 2005, the offender asked DG for $500 saying he wanted to buy a car. DG refused. The offender then made a further request for money by asking for the victim’s keycard. DG again refused. DG then said that he would call Mr Smith a taxi so that he could leave. Mr Smith was apparently upset at being asked to leave.

4 It was at about 6.15am that both Mr Smith and DG were lying on the bed when the victim felt something sharp against his left hip area. He noticed that it was a brown handled knife about twenty centimetres long. He was too frightened to leave the bed. He was afraid that he was going to be stabbed. On at least two occasions the victim felt the knife pressed harder against his hip but again he said he was too frightened to get off the bed. There were threats made, where the offender said he would stab the victim, he said that he would kill him. Finally the offender said,

“This is how this thing started about the car and it will finish about the car, just give me $500 and treat it like a lesson.”

5 Eventually DG was able to get away and call the police. The offender was still in Mr G’s premises when the police arrived.

6 This is a serious offence. The courts have said on many occasions that those who commit offences carrying knives deserve to be treated with little leniency. It is a particularly aggravating factor that this offence was committed whilst Mr Smith was on a bond and that bond was for an offence also involving Mr Smith’s use of a knife.

7 Mr Smith has a lengthy criminal history, although it has to be said that whilst there are a large number of offences, most of them seem to have been dealt with in the Local Court, with one matter of stealing or attempting to steal from the person, and a couple of other common assault matters. This appears to be one of the most serious of the offender’s offences.

8 Prior to his motorbike accident he was in a de facto relationship. This relationship was of course difficult with Mr Smith going to gaol on regular occasions. It was also difficult because Mr Smith was a user of illicit drugs. It seems that the relationship has not survived Mr Smith’s accident of 2001 and they have now separated.

9 For a while Mr Smith lived with his parents but he has now formed a new relationship and spends some significant time with his new partner.

10 The offender is of course undergoing a great deal of treatment and rehabilitation because of his incomplete paraplegia. Matters are unsettled at the moment. In May last year the offender had an operation but rather than improving his health, it seems that that has adversely affected it. He is now experiencing less upper body strength than he had before. Inquiries are continuing as to why that should be the case. He got an MRI last Thursday which is designed to see whether a further operation is required. He is to see a doctor about that possibility next Thursday 8 June.

11 More rehabilitation has been arranged, it is to begin next Tuesday. The offender is also due to have a catheter inserted. He is on a waiting list for that operation and was told some months ago that he was on that list and that it could be up to six months before he gets to the head of the queue so that the operation can be carried out.

12 There is no doubt that this is a serious offence and deserving of significant punishment. I have to, of course, take into account the harm that an offence causes when I determine the appropriate sentence for it. In this case, there is a victim impact statement. What is foreseeable is generally the limit of the harm that can be taken into account. In other words, the law does not punish people for harm which is unforeseeable. I do not wish to understate the seriousness of the offender’s conduct but the extent of the consequences for DG are, I am satisfied, of a level which was not foreseeable.

13 Another aspect of the victim impact statement is that it refers in more detail to matters which are in the statement of facts. Although the statement of facts record threats to Mr Smith, the victim impact statement contains more graphic details of those. It is a difficult matter and easy to produce error where a victim impact statement was prepared on the basis of material which reveals a more serious offence than that in an agreed statement of facts. A similar matter arose in the decision of R v Bakewell, unreported, CCA 27 June 1996. In that case there was a Di Simoni v The Queen problem, which does not appear to have arisen here but the principles are the same.

14 The crown points to material from the corrective services authorities indicating how they deal with someone who, like Mr Smith, is confined to a wheelchair. No doubt arrangements can be made for Mr Smith’s accommodation in gaol. Indeed he spent ten months in gaol only recently, although that was at a time when he says he was better than he currently is. This is not a case where no arrangements can be made to suitably accommodate Mr Smith. Such arrangements can clearly be made. That is not to suggest of course that I should ignore Mr Smith’s disability. Clearly he will do his time in custody harder than would someone without a disability such as that from which Mr Smith suffers.

15 As I began these remarks on sentence, Mr Smith needs to understand that the fact that he has incomplete paraplegia does not mean that he can commit serious offences without being punished, however I do not propose to proceed to finally determine the appropriate sentence to be imposed on Mr Smith today. Section 11 of the Crimes (Sentencing Procedure) Act allow me to make an order adjourning proceedings and granting bail to the offender for a number of purposes. They include assessing his capacity and prospects for rehabilitation as well as allowing Mr Smith to demonstrate that he has rehabilitated. I am also able to take into account Mr Smith’s medical needs. As I have mentioned there are three particular aspects of his medical treatment which are to come to fruition in the near future. A decision will be made whether he needs surgery next Thursday. He is to commence more rehabilitation next Tuesday and he is on the waiting list for his catheter. They are also matters I considered appropriate in determining to impose a s11 remand in the present circumstances. Mr Smith needs however to understand, that should he fail to demonstrate rehabilitation during the period of remand, then there is no good reason why a sentence of full time custody is not to be imposed.

16 For the purpose of assessing Mr Smith’s rehabilitation, allowing him to demonstrate rehabilitation and for the purpose of allowing Mr Smith to receive ongoing medical treatment, I adjourn this matter until 16 February 2007 and Mr Smith is required to appear back before this court. I order an updated pre-sentence report for that day. I grant bail to Mr Smith subject to the following conditions.

17 Mr Smith is to report to the office of the New South Wales Probation and Parole Service at Liverpool within seven days and to comply with their reasonable directions. He is to live with his mother and father during the period of the adjournment or at some other address provided he notify both the Director of Public Prosecutions and the registrar of this court of his intention to move. That he be of good behaviour during the period of the remand and that he not be in possession of any knife apart from an item of cutlery which is he using for the purpose for which it is designed. He is to report to police at Cabramatta Police Station every Monday.

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