R v Smethurst

[2018] NSWDC 488

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Smethurst [2018] NSWDC 488
Hearing dates:	9 November 2018
Date of orders:	09 November 2018
Decision date:	09 November 2018
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	At [64]
Catchwords:	CRIMINAL LAW – sentencing – assault occasioning actual bodily harm – domestic violence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Conte v R [2018] NSWCCA 209 Munda v Western Australia (2013) 649 CLR 600 R v McNaughton (2006) 66 NSWLR 566 R v Todd [1982] 2 NSWLR 517 The Queen v Kilic (2016) 259 CLR 256 Veen v The Queen (No 2) (1988) 164 CLR 465
Category:	Sentence
Parties:	Regina (Crown) Justin Smethurst (Offender)
Representation:	Counsel: Mr S Healy (Offender)   Solicitors: ODPP (Crown) Legal Aid (Offender)
File Number(s):	2016/154323
Publication restriction:	None

Introduction

1. The Offender, Justin John Smethurst, appears before the Court today for sentencing in relation to an offence under s59(1) of the Crimes Act, being assault occasioning actual bodily harm. It has a maximum penalty of five years' imprisonment and no standard non parole period. On a s166 certificate is a further charge, sequence 1, of common assault which I am asked to deal with as part of the sentencing exercise in this case.

2. The Offender was committed for trial on 3 March 2017 from Gosford Local Court. A trial date was fixed for 24 September 2018. On 25 September 2018, the Offender pleaded guilty, after negotiating with the Crown, to the charges now before the Court.

3. The offending was committed on 22 February 2016 and the Offender was arrested on 20 April 2016. At the time of the offence, the Offender was the subject of a number of good behaviour bonds as well as a series of intensive corrections orders, all of which were ultimately revoked.

Agreed Facts

4. The facts agreed between the parties are set out in Exhibit A and provide as follows:

Common Assault

5. As at 22 February 2016, Ms Hughes, the complainant, had known the Offender for a number of years. The complainant was at her residence of 3 Bottlebrush Close, Wyoming. At approximately 10pm, the Offender and the complainant were on the lounge inside the premises and the two of them started having an argument in part about the complainant's ex-partner being released from custody. In the course of that argument the Offender stood up and picked up one of the pillows on the lounge and placed it over the complainant's face.

Assault Occasioning Actual Bodily Harm

6. The complainant then ran out of the rear door into the backyard. The Offender pushed the complainant on the grass and then started to drag her back towards the house by her shirt. This caused a graze on her back.

7. The complainant ran towards a neighbour's house. The Offender caught up with her and attempted to grab her but the complainant pulled away and ran onto the driveway of a nearby residence, number 10.

8. The occupant of number 10 heard the Offender and the complainant screaming on his driveway and came out of his house. He saw the complainant standing about halfway up his driveway, sobbing, and the Offender standing on a pathway that ran down the side of his house. He asked the complainant if she was okay and she said, 'Call the police.' The Offender then walked off down the path and the complainant went back to her house and locked it. The witness called the police assistance line to report the incident.

9. Police attended the complainant's residence at 10.35pm that night and recorded her statement on camera. The injury on her back was recorded on video. The Offender was served with future CANs for the above offences through his representative on 19 May 2016.

Elements of Offences

10. Admitting guilt to the matter on the s166 certificate and pleading guilty to the charge on the Crown Sentence Summary, the Offender has admitted that he committed an assault; that is, the deliberate an unlawful touching of another person. As is known, the slightest touch is sufficient to amount to an assault and it does not have to be a hostile or aggressive act or one that causes pain.

11. He also, in relation to the count on the Crown Sentence Summary, pleaded guilty to occasioning actual bodily harm, which means any hurt or injury that interferes with the health or comfort of a person; the injury does not need to be permanent but it must have more than a fleeting or trivial effect upon the victim, such as fear or panic, at the time of the incident.

12. It is apparent from the Agreed Facts that, by reason of the conduct of the Offender, the victim suffered an injury to her back which the police recorded on video and when observed by the neighbour at number 10 sobbing would suggest that she was upset.

Objective Seriousness

13. It is necessary for the Court, in any sentencing exercise, to consider the objective seriousness of the offending. It was submitted on behalf of the Offender that the objective gravity falls within the mid-range, particularly taking into account the matter on the s166 certificate. It was submitted on behalf of the Crown that the offending fell within the mid-range.

14. Relevant to the assessment of the seriousness, of course, is a consideration of any aggravating or mitigating factors. In this particular case, the Offender, at the time of the offending, was on conditional liberty; in that he was the subject of five good behaviour bonds and a string of intensive corrections orders, all of which, as I have previously stated, were revoked as a consequence of this offending.

15. The second aggravating factor sought to be relied upon, and plainly made out to the requisite degree; that is, beyond reasonable doubt, is that the offending took place in the victim's home.

16. As for mitigating factors that may bear upon the seriousness of the offending, it was suggested that the offending was unplanned and spontaneous and of a short duration. Whilst it may have been unplanned and simultaneous, it involved a number of consecutive acts committed by the Offender over a relatively short period of time but which included the dragging of the victim into the backyard.

17. The other matter which will mitigate against the sentence is the plea of guilty prior to trial. It was submitted on behalf of the Offender that that should attract a discount in the order of 10% to 15%, a submission with which the Crown agreed.

Subjective Case

18. There is quite a lot of material in the Offender's subjective case, most of it is of a character reference nature and includes testimonials from family members and the like. Before I get to that, I should first consider the Offender's prior convictions.

Prior Convictions

19. In the matter of R v McNaughton (2006) 66 NSWLR 566, the Court of Appeal sat a bench of five to settle how a criminal record should be used by a sentencing judge. In that decision, the Court enunciated some seven principles which inform the Court as to how a prior criminal record should be taken into account. As stated in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477, one of the considerations is that a prior record is also relevant to:

"show whether the instant offence is an uncharacteristic aberration or whether the Offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted."

20. The Offender's criminal record forms part of Exhibit A. Counsel for the Offender has, during the luncheon adjournment, prepared a chronology, (MFI 1), of the most recent offending in order to understand the crossover between the various bonds and intensive corrections orders with the current offending.

21. This is not the first time the Offender has appeared before a Court for assault. In 2008, he was convicted and sentenced for common assault. Also, in 2008, he contravened an AVO which was taken out to protect his then partner, Emma Smith. The basis for the AVO is unknown and, therefore, no comment can be warranted in relation to that matter. On 1 May 2010, the Offender was convicted of assault occasioning actual bodily harm, it being a domestic violence offence. There was also a charge of common assault which appears to have been adjourned generally. In March 2012, the Offender was convicted of contravention of a prohibition/restriction in an AVO being domestic.

22. Again, the circumstances relating to that are not known to this Court but demonstrate two things:

1. that there was a basis, however slight, for an AVO being taken out; and

2. a disobedience, on the part of the Offender, of that order.

23. There appear a number of drug offences which commenced in 2004, and there was also an offence in 2008. In 2014, he was charged but the charge was withdrawn in relation to supply a prohibited drug; no weight will be given to that alleged offence. In 2014, he was charged and convicted with possess prohibited drug and also called up in relation to an earlier bond. There are a number of other possess prohibited drug charges which follow in the years after 2014.

History of Addiction

24. Counsel for the Offender sought to draw a connection between his addiction to drugs and his offending, suggesting that the domestic violence-type offending in the past had been drug related. There is no clear evidence which establishes that fact. Counsel has invited the Court to draw that conclusion based upon a number of inferences, those being the offences in 2014 and 2015 relating to domestic violence occurred around the time when there were also drug offences. The precise nature of the violence and the drug offences are unknown to the Court and I consider it would be unsafe to draw the inference which is invited.

25. The second basis for an inference comes from something stated in the Sentencing Assessment Report, part of Exhibit A, where at page 2 it is stated:

"Mr Smethurst relayed a history of poly substance abuse, noting that he was under the influence of alcohol and likely methamphetamine during the commission of the offences."

26. The difficulty with making any use of that statement is twofold:

1. the history relating is imprecise and completely absent as to any particular timeframe, and

2. the use of the word "likely" before the word "methamphetamine" in that sentence suggests that the Offender was uncertain as to whether at the time of the subject offending he was, in fact, under the influence of an illicit drug.

27. I am not satisfied that the evidence contained in the Sentencing Assessment Report permits the inference which counsel for Offender invites the Court to draw.

28. The third basis upon which it is submitted by counsel for the Offender that the Court ought to draw an inference of connection between offending of this type and drug consumption is by reading two references. First, Exhibit 4, a reference by Geoffrey Paull who, as at the time of his undated character reference, had been the stepfather of the Offender for some 17 years. Reliance is placed by the Offender on the following, "Unfortunately recently he has taken the wrong path in life." Given that the reference is undated and makes no reference to any criminal charges whatsoever, it is impossible to fix a particular time as to when the Offender took "the wrong path in life" as is referred to by Mr Paull.

29. I am invited, however, to read that together with a character reference by Matthew Spindler who is the brother of the Offender (Exhibit 5). The reference is dated 12 June 2017 and, as I understand counsel for the Offender, whilst it may have been prepared at that time, it was more recently signed. There is no evidence as to when this was in fact signed. Reliance was placed upon the third paragraph of exhibit 5 to demonstrate a connection between substance abuse and offending. In particular, counsel for the Offender relied upon the following sentence, "When Justin is either not working or not seeing his children regularly he tends to use escapism in the form of substance abuse and acting out as a means of coping." Unfortunately for the Offender, I do not accept that that establishes the connection contended for by the counsel for the Offender between his offending of this type; that is, domestic violence, and his substance abuse. It was open to counsel to call the Offender to give evidence. That opportunity was presented to the Offender in the course of the sentence hearing but not taken up.

History of Domestic Violence

30. This is the fourth domestic violence type offence for which the Offender has appeared before the Court. In fact, if one includes the AVO contraventions, on the assumption that they may relate to at least intimidation or a basis for a complainant having concern for safety, the number of occasions are greater. But for the purpose of sentencing and absent information as to those matters, I shall ignore them.

31. For the May 2010 charges relating to domestic violence assault, the Offender obtained a community service order of 200 hours. For the January 2015 domestic violence offences, assault occasioning actual bodily harm, in fact it appears that he was convicted of that matter on 27 January but that conviction was annulled on 4 February 2015. On that date, in the Gosford Local Court, in respect of the same charge matter H ending 050, the Offender was sentenced to imprisonment of four months in respect of which he lodged a severity appeal which came before this Court on 13 March 2015 at which time the sentence was upheld.

32. It is apparent from the Offender's criminal record that he has had the advantage of a number of non-custodial forms of sentence with which he has failed to comply. I note that on 28 May 2015, a number of ICOs were imposed, a few accumulative, over a period of ten months from 28 May 2015 and 27 March 2016. On 28 October 2015, the ICO was revoked by the State Parole Authority and he was sentenced to a period of imprisonment for a period of five months. I am informed, from the bar table, the reason for that revocation was his failing to attend the community service component of the intensive corrections order.

33. It is sufficient for today's sentencing purpose to observe two things:

1. that the Offender has a history of domestic violence; and

2. that he also has a history of non-compliance with Court ordered community based sentencing options.

Delay

34. Counsel for the Offender also sought to make a submission in relation to delay, relying upon a decision of Street CJ, as long ago as 1982, in the matter of R v Todd [1982] 2 NSWLR 517 where his Honour referred to lengthy postponements in sentencing and suggested that it ought to result in some leniency being extended to the Offender.

35. Whilst the passage of time is regrettable, the Offender committed the offences to which he has pleaded guilty on 22 February 2016. He was not arrested until 20 April 2016. He then entered a plea of not guilty and was committed for trial to this Court on 3 March 2017. The matter was fixed for hearing on 24 September 2018 and a guilty plea entered to a lesser charge; that is, the subject charges on 25 September. It is a regrettable feature of current Court backlog that it takes an amount of time such as that for matters of this type to reach this point. It is a matter to which I have taken into account and to which I will have regard in imposing the sentence in this case; that is, the delay has been incurred mostly through no fault of the Offender.

36. Amongst the subjective material relied upon by the Offender is an undated character reference from Lyn Broughton who, at whatever date the reference is provided, had known the Offender for three years. As might be expected of a reference which is tendered in these proceedings, she speaks highly of the Offender. Whilst she does not refer to the particular charges for which he is to be sentenced, she does refer to his "current predicament." I take that to be a reference to either these charges or some earlier charges for which the reference was prepared.

37. I have also been provided with a reference from Kylie Wagstaff, an ex-partner of the Offender. It is dated 18 June 2017. At that time, she had known him for over 15 years. They were in a relationship for six years, from some time in 2000 to sometime in 2010, during which period their daughter was born. At the time of the reference the daughter was aged 13. Ms Wagstaff says that she continues to have contact with the Offender since separation and, whilst they were together, there was never any demonstration of violence by the Offender. In fact, she describes him as being "a good dad, hardworking and all round good person." That, to some extent, flies in the face of his criminal record which demonstrates that in the middle of the period during which they were together, that is, 2004, the Offender was charged with being in possession of a prohibited drug for which he was fined $500.

38. The next document in the subjective material is a reference from Melissa Low, the sister of the Offender (Exhibit 3) and is dated 21 June 2017. It also speaks highly of the Offender, although makes no reference of any of the prior charges which I have previously outlined and indeed makes no mention of the charges for which the Offender is to be sentenced.

39. Next, there is a short letter already referred to by Geoffrey Paull (Exhibit 4). I will not repeat my reference to that. There is also the reference from the brother, Matthew Spindler (Exhibit 5), which again speaks highly of his brother's character, together with a letter from Craig Partridge dated 31 October 2018 confirming that upon release the Offender will be guaranteed a casual position in his waste management business and will be offered a permanent position should one arise in the future. Again, regrettably the reference makes no reference to the offending for which the Offender is before the Court today.

40. There is also the Sentencing Assessment Report dated 31 October 2018. It was compiled following an interview with the Offender as well as telephone contact with his mother. I have already referred to the substance use history contained in the report and will not further repeat that.

41. In relation to the Offender's attitude to the subject offending, I note the report stated the following:

"Whilst Mr Smethurst disagreed with aspects of the police facts and described the victim's behaviour as inflammatory, he accepted a large portion of responsibility for the offences."

42. This may cause doubt as to the genuineness of any remorse expressed by the Offender and it appears that he, at least in part, blames the victim for his offending. In any event, he has pleaded guilty to the charge and a discount in the range contended for by the parties will be accommodated by the Court.

43. I have also been provided with a bundle of certificates of various courses attended by the Offender whilst in custody, particularly in the last month or so. Those efforts of his own generated rehabilitation, of course, are commendable.

44. Finally, the Offender also has provided me with a handwritten letter dated today which sets out a number of matters demonstrating remorse and apology in relation to his behaviour giving rise to this offending. He also speaks highly of the support provided by his mother and other family members as well as his commitments at further rehabilitation. As part of Exhibit 8 is a separate page document which sets out in asterisks points his plans for the future and, again, plans which he has for the future are commendable and the Court would encourage him to embark upon the program which he has devised for himself upon his release from prison.

45. Having considered all of the subjective material and in particular the Sentencing Assessment Report, I consider the prospects of rehabilitation to be guarded. Part of the information informing that determination is the fact that the Offender has committed similar offences in the past and has continued to offend in a similar manner. The risk of re-offending was assessed by the author of the sentencing assessment report as being "medium/low risk of re offending." It seems to me that if the Offender follows the plan which he has prepared for himself and which is set out in Exhibit 8, then that risk of re-offending would be low. However, absent successful rehabilitation, the Court is left in a difficult position in terms of making a finding about rehabilitation and for that reason the prospects of successful rehabilitation could only be regarded as also guarded.

Approach to Sentencing

General Principles

46. Section 3A of the Crimes (Sentencing Procedure) Act 1999 sets out the purposes for which a Court may impose a sentence on an Offender. The first is punishment. There is no doubt that domestic violence offences of this type require stern but appropriate punishment. The second is deterrence, to prevent the crime by deterring the Offender and other persons from committing similar offences. Again, I mindful of the fact that this is not the first occasion for which the Offender is to be sentenced for domestic violence based offences and the need for specific deterrence, in my mind, is real. I also consider that general deterrence in the community is also justified and ought to be reflected in the sentence imposed upon the Offender.

47. The next consideration under s3A is protection; that is, protecting the community from the Offender. Given the number of offences in the past, this is a matter of relevant but moderate application in the present case as there is no evidence of any present risk. Rehabilitation is another purpose for sentencing and plainly that exists in this case particularly if, as was submitted by counsel for the Offender, there is a connection between his offending and drug abuse.

48. Accountability is the fifth consideration; that is, to make the Offender accountable for his actions. Whilst the Offender has pleaded guilty, I have reservations about his expressions of remorse particularly in light of the partial attribution of blame to the victim in the Sentencing Assessment Report. The sentence to be imposed will reflect the need for accountability.

49. Denunciation, the Court must denounce conduct of this type. In recent times, domestic violence has become prevalent in society and general sentencing trends are favoured with emphasis on denunciation and general deterrence. The sentence to be imposed in this case will reflect the need for denunciation of this anti-social conduct.

50. The final purpose for sentencing under s3A is recognition, to recognise the harm done to the victim of the crime and community. I bear in mind the comments of the High Court in the matter of Munda v Western Australia (2013) 649 CLR 600 at [54]-[55], which refer to the role of the criminal law in the context of domestic violence as including:

"the long standing obligation of the State to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the State to the vulnerable against repetition of violence.

A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol fuelled destruction of a woman by her partner."

51. I pause to observe, in the present case, although alcohol was involved, I do not consider the "destruction" or the violence perpetrated as being "brutal." The judgment of Munda continues:

"A failure on the part of the State to mete out a just punishment of violent offending may be seen as a failure by the State to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law."

52. I also note the more recent comments in the High Court in the matter of The Queen v Kilic (2016) 259 CLR 256 which recognise a societal shift in relation to domestic violence, "current sentencing practices for this category of offence because of changes in societal attitudes to domestic relations." I have borne those comments in mind in this case in determining what an appropriate sentence is. Whilst I have found, and it was agreed between the parties, the offending falls within the midrange it is not case where there was brutal violence inflicted upon the victim but nevertheless there was violence resulting in some degree of harm.

Instinctive Synthesis

53. In coming to the sentence, I am mindful of the obligation of the Court to engage in the process of instinctive synthesis as recently reminded by the Court of Criminal Appeal in Conte v R [2018] NSWCCA 209. It involves the consideration of the purpose for sentencing in the context of weighing the objective gravity of the offending with the Offender's subjective case. I have attempted to do that in the present case.

Imprisonment

54. In terms of imprisonment I must be satisfied, having considered all possible alternatives, that no sentence, including non-custodial sentences, other than imprisonment is appropriate.

55. In this case, both the Crown and counsel for the Offender conceded that the s5 threshold has been met and that a term of imprisonment was warranted. The difference between the Crown's position and that of counsel for the Offender is that the Crown has submitted that the Offender ought to serve the term of imprisonment by a fulltime custodial sentence whereas counsel for the Offender has submitted that a further intensive corrections order ought to be permitted.

56. Whilst I am mindful of the comments made by the Attorney General in the Second Reading Speech in the recent amendment Act to the sentencing provisions in this State concerning the benefits of rehabilitation in the community, in my opinion those benefits, in this case, are outweighed by the fact that the Offender has in the past had the benefit of conditional liberty orders and has failed to comply with those orders. Accordingly, I conclude that it would be inappropriate in this case to impose a sentence to be served by way of an intensive corrections order.

Guilty Plea

57. I have had regard to the factors in s72 of the Crimes (Sentencing Procedure) Act concerning the effect of the guilty plea. The range is said, by both parties, to be in between 10% and 15%. I intend to discount the sentence by 15%.

Consistency

58. I have also had regard to the statistics which were provided by counsel for the Offender, (MFI 1), and I have also had regard to the fact that offences of this type are usually dealt with in the Local Court where the maximum period of the jurisdictional sentence is two years. I note that in the Local Court just 20% of Offenders of this type face a term of imprisonment and that the term of imprisonment is usually at or about 12 months with a non-parole period of about six months. In this Court, however, the rate of imprisonment for this type of offence is 51% with two years being the average head sentence with about 18 months as the non-parole period.

59. Whilst I have taken into account those statistics, and I am mindful of the fact that these matters could have been dealt with in the Local Court, I still maintain a sentence or imprisonment to be served by way of fulltime custody as indicated.

Sentence

60. The sentence will commence from the date agreed; namely, 16 August 2018, being two months and 25 days, previous to today, for days spent in custody for these offences. I intend to deal with the primary offence on the Crown Sentence Summary and the related offence by way of an aggregate sentence. It is, of course, necessary before I do that to announce what the sentence would have been had I dealt with the matters separately.

61. In respect of the matter on the Crown Sentence Summary of assault occasioning actual bodily harm, had it not been for the fact that I intend to impose an aggregate sentence for the assault occasioning actual bodily harm, I would have imposed a sentence of two years which after the discount of 15% would have resulted in a sentence of imprisonment of 20 months.

62. In relation to the matter on the s166 certificate, were it not for the aggregate sentence, I would have imposed a sentence of one year which after 15% discount would have been a term of imprisonment of ten months. The combined indicative, after discount, therefore, is 30 months.

63. Mr Smethurst, you are convicted of the charge in the Crown's Sentence Summary of assault occasioning actual bodily harm. You are further convicted of the charge to which you have admitted guilt; namely, common assault, which is on the s166 certificate. I intend to sentence you together for both matters rather than imposing two sentences which may result in an overly onerous sentence.

64. You are sentenced to an aggregate period of imprisonment of 22 months which after a discount of 15% for your guilty plea is a sentence of 18 months. I impose a non-parole period of 12 months. The effect of that is that the head sentence of 18 months will date from 16 August 2018 and expire on 15 February 2020. The non-parole period of 12 months will also commence on 16 August 2018 and expire on 15 August 2019, at which time you will be released to parole.

Note – These ex-tempore remarks were revised without access to the court file.

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Amendments

20 March 2019 - Edited paragraph 11.

Decision last updated: 20 March 2019