R v Smith
[2016] ACTSC 330
•26 October 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Smith |
Citation: | [2016] ACTSC 330 |
Hearing Date: | 26 October 2016 |
DecisionDate: | 26 October 2016 |
Before: | Murrell CJ |
Decision: | Sentenced of two years’ imprisonment suspended on offender entering into a good behaviour order for three years. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – domestic violence – sole incident – significant self rehabilitation |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 12, 33, 35, 36 Crimes Act 1900 (ACT) s 20 Magistrates Court Act 1930 (ACT) s 90A |
Parties: | The Queen (Crown) Simon Thomas Smith (Offender) |
Representation: | Counsel Ms M Moss (Crown) Mr P Smith (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 163 of 2016 |
MURRELL CJ:
Background
The offender pleaded guilty to the offence that, on 12 March 2016 at Canberra, he recklessly inflicted grievous bodily harm on his partner. Recklessly inflict grievous bodily harm is an offence against s 20 of Crimes Act 1900 (ACT) which carries a maximum penalty of 13 years’ imprisonment.
The offender pleaded guilty at the twelfth mention before the Magistrates Court and the matter was committed to the Supreme Court under s 90A of the Magistrates Court Act 1930 (ACT) (MCA). The prosecution case was strong. However, the plea had a high utilitarian value. Under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) I would have allowed a discount of 20% on the sentence that I would otherwise have imposed, but given the s 36 considerations I believe an appropriate total discount is up to 30%.
Facts
The offender and the victim had known each other for many years. In October 2015 they commenced a relationship and in November 2015 they became engaged. They lived in attached residences in Chifley. There was a door between the residences.
On the evening of 11 March 2016 the offender and the victim had been drinking with friends when the victim made a comment that upset the offender. The offender cried and then went for a 15-minute walk. Later that night, the offender and the victim resolved the issue.
On the following day, 12 March 2016, the offender and the victim spent the day together. In the early afternoon, they started drinking vodka. Later, they shared a joint of marijuana. They discussed sleeping in the nature reserve in Chifley. Eventually, the offender took his sleeping bag and went to sleep in the nature reserve by himself.
Later, the victim went into the offender’s room and saw a note that revealed that the offender was feeling “paranoid”. She used a mobile telephone to take a photograph of the note. She then went to the nature reserve to find the offender.
The victim woke the offender and questioned him about the note. The offender became very angry at being awoken and attacked the victim. He knocked her to the ground. He kneeled on top of her and pinned her down. As she suffers from claustrophobia she became very distressed. She began to scream for help. The offender put his hands over her mouth to prevent her from screaming. He referred to the victim’s former partners and her ongoing relationship with one of them. He told her that he would give her “one more chance.”
The offender was enraged. He was yelling. He put his hands around the victim’s throat and began to choke her. She could not breathe and felt that “this was it.” Her legs were flailing. While choking the victim, the offender lifted her head and hit the back of her head against the ground. The victim tried to escape without success. She spoke reassuringly to the offender in an effort to calm him. The victim lost consciousness for a period.
The offender escorted the victim back to her residence and put her into bed. Later, he checked on her condition, saying “oh my God – what have I done?” He said that he would call an ambulance so that she could be taken to hospital, but the victim said that it was unnecessary to do so.
At about 1:00 am on 13 March 2016, the offender called police operations and told them that there had been a domestic violence incident in which he had struck his partner. Police attended at about 1:05 am. They observed significant injuries to the victim’s face, including a severely swollen and bruised left eye.
The offender was arrested. He stated that he was upset by a comment made by the victim and had been feeling very intoxicated when he argued with the victim and struck her.
The offender was in custody from 13 to 29 March 2016, when he was granted bail.
The victim sustained at least 46 individually identifiable injuries, including many soft tissue injuries to her face, head, chest, arms and back. The extent and severity of her injuries is the subject of photographs tendered at the sentencing hearing. She suffered significant injury to the left eye and surrounding structures and reported visual disturbance. She suffered significant pain and has been required to undergo follow-up investigations and treatment. She may require further surgery and may suffer permanent impairment and disfigurement, including scarring. The event was psychologically traumatic.
The offender believes that he was psychotic at the time of the offence, due to mental health problems and the extent of his alcohol and cannabis consumption. His recollection of the offence is limited. He recalls experiencing flashbacks to prior traumas, including flashbacks to violence involving his father.
He is confused and remorseful about the offence, and appropriately empathetic towards the victim. She was present in court at the sentence hearing, and through his counsel the offender apologised to her. It would seem that he became remorseful almost immediately after the offence; he escorted the victim to her residence, assisted her into bed, called 000 and made admissions to the police.
Objective seriousness
In assessing the objective seriousness of an offence of this type, it is necessary to consider both the offender’s conduct and the injuries that were sustained (where they lie within the spectrum of injuries that constitutes grievous bodily harm).
The offender's conduct was objectively serious. It is true that the attack was not premeditated and no weapon was involved. However, the attack was sustained and multi-faceted and had the capacity (although there is no evidence that this did occur) to cause very serious and permanent injury, particularly because many of the injuries were to the head. At one stage, the offender took hold of the victim's head and hit it against the ground, giving rise to the potential for serious brain injury. Undoubtedly the incident would have been incredibly frightening for the victim, who understandably feared for her life at the time.
On the other hand, the objective seriousness of the grievous bodily harm, insofar as it is known to the Court, was far from the most serious type of grievous bodily harm. Grievous bodily harm is defined to include any permanent or serious disfigurement and is understood to encompass any really serious harm.
In this case, the victim suffered displaced fractures in the area of her eyes, particularly her left eye. They were undoubtedly serious matters, but overall the seriousness of the harm derives from the fact that the victim suffered many injuries. Individually, some of the injuries were not serious, but cumulatively they were. By his plea the offender conceded that the requirement of "grievous bodily harm" was proved. Nevertheless, this is not in the category of offences involving the most serious type of grievous bodily harm.
Subjective factors
The offender is 49 years old.
His criminal history is brief. Relevantly, in 1999 he was found guilty of an assault (the charge was dismissed without proceeding to conviction) and in 2001 he was convicted of assault and placed on an 18 month recognisance to be of good behaviour. The recognisance was breached twice but eventually completed.
The offender was born in Queensland. He is the youngest of 10 children. His childhood was traumatic. From a young age, he witnessed domestic violence and was subjected to unpredictable physical violence by his father. As an adolescent, he and a sibling were sexually assaulted. As a result, as an adult he has struggled to achieve trust and intimacy in relationships. The offender identified a pattern of becoming easily mistrustful of partners, fearing disloyalty and rejection, and engaging in violence.
The offender has two biological children and two step-children. He is said to be a good father.
The offender completed Year 12. He attended university and obtained a Bachelor degree in Applied Sciences and Health Education. He also holds a Certificate IV in Business Administration. He has a good employment history and has worked in the public service and in the mental health sector (in an administrative capacity). While on bail, he was employed in a sales capacity until his employer experienced financial difficulties. Currently, he is seeking employment.
Since the offence, the offender has rebuilt his romantic relationship with the victim. In August 2016, his bail conditions were altered, allowing him to live with the victim. There have been no further episodes of anger or domestic violence.
The offender has a limited social network. No close friend has been involved with the criminal justice system.
In the 12-month period preceding the offence, the offender consumed alcohol at a high-risk level. For several months prior to the offence, he frequently used cannabis. Since the offence, the offender has been abstinent from both alcohol and cannabis.
Although the offender has never been diagnosed with a mental illness, he has a long history of symptoms of anxiety, depression and suicidal ideation. He has been inclined to angry outbursts. From time to time, he has experienced feelings of paranoia and mistrust. In 2004 he contacted ACT Mental Health Services in relation to feelings of depression and suicidal ideation associated with financial and family stress. In the months preceding the offence, the offender frequently self-harmed. Currently, he is taking antidepressant medication.
A recent psychological report states that, in the past, the offender may have met the criteria for post-traumatic stress disorder, but he does not currently meet those criteria. The author states:
Overall, Mr Smith is a man who was subject to significant abuse and was witness to domestic violence from an early age that continued into his adolescence. Despite this, Mr Smith appears to have functioned reasonably well over the years... However, Mr Smith describes particular impairment in some interpersonal functioning that has at times resulted in violence. In that respect he presents with borderline personality organisation, characterised particularly by intense relationships, unstable sense of self, poor distress tolerance, rejection and abandonment anxiety, and interpersonal dependency and distrust.
While on bail, the offender accepted Corrective Services’ supervision, attended all appointments and engaged positively through one-on-one counselling, relationship counselling, dialectical behavioural therapy and by undertaking a program designed to address violence and teach anger management. He has agreed to participate in other appropriate programs. Further, he is meditating daily and is maintaining fitness to support his mental well-being.
The author of the pre-sentence report assessed the offender as at medium risk of general reoffending. However, it is clear that if he develops strategies for anger management and abstains from consuming substances to a significant level, there is a very low risk of reoffending. The author of the CADAS report stated that, given the extent of Mr Smith’s cooperation with treatment to date, he was reluctant to suggest further treatment. He stated “it is difficult to suggest additional treatment for Mr Smith as he has engaged so thoroughly and effectively in treatment to date.” Nevertheless, CADAS has arranged for Mr Smith to undertake a brief program focused on relapse prevention.
The offender tendered character references, which described him as intelligent, compassionate, honest and reliable. The referees were aware that he had been involved with mentoring and supporting disadvantaged people. He was described as an excellent father to his children. The referees confirmed that the offender was committed to rehabilitation. However, as the prosecutor submitted, there is one caveat in relation to the references, and that is that it is not apparent that the referees were aware of any past tendency to domestic violence by the offender. Of course, that position is not unusual in the case of domestic violence.
Sentencing considerations
I am required to consider the relevant sentencing purposes in s 7 of the Sentencing Act. The relevant purposes are the imposition of adequate punishment, general deterrence, the promotion of offender’s rehabilitation, accountability, denunciation and recognition of harm to the victim. I do not consider that personal deterrence is a particularly important sentencing purpose given that the offender is extremely remorseful about the offence, does not have recent convictions for such behaviour and is doing everything within his power to address behaviour which he acknowledges is unacceptable.
I am also required to consider relevant matters under s 33 of the Sentencing Act. I believe that I have referred to most of the relevant matters. I have noted that the ongoing damage resulting from the offence is not known to the Court, presumably because the offender and the victim have resumed their relationship. I have referred to the matters relevant to discount under ss 35 and 36.
The prosecutor submitted that the offence involved a breach of trust. I would not characterise it in that way. The offender and the victim were in a relationship, but there was no breach of trust in the sense that the offence was the result of a vulnerability that the victim had arising from the relationship. The offence occurred in a public place after the victim approached the offender in relation to the "paranoid note" that he had written.
The parties both submitted, and I agree, that the only appropriate sentence is some sort of sentence of imprisonment. The issue is the appropriate manner in which the sentence should be served. It is my view that the sentence may be fully suspended. That is because the offender has done everything possible towards rehabilitation and it is very important that he be able to continue with rehabilitation. That consideration supports protection of the community.
The sentence does need to reflect considerations such as punishment and general deterrence, but I consider that a sentence of an appropriate length will do that. An option to which I have given passing consideration is an assessment for an intensive corrections order. However, with the support of Corrective Services, the offender has already engaged strongly in rehabilitation. I do not believe that the resources that would be involved in an intensive corrections order should be diverted to this case.
Sentence
The offender is convicted of the offence. I would have imposed a three-year sentence. I am reducing it to two years. First, a 30% discount should be allowed for the plea of guilty and the assistance to the authorities (by immediately contacting them and making admissions). In addition, the offender has spent 16 days in full-time imprisonment and has been on reasonably strict bail conditions which have impinged upon his personal liberty. Taking into account all those factors, I reduce the sentence to two years' imprisonment.
The offender is sentenced to imprisonment for a period of two years, and I suspend the sentence under s 12 of the Sentencing Act. I also make a good behaviour order as required by s 12 for a period of three years. The good behaviour order is subject to the additional condition that the offender report to Corrective Services at Eclipse House by 4:00 pm today and submit to the supervision of Corrective Services for as long as they consider necessary.
| I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 16 November 2016 |
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