R v Smith

[2015] SASCFC 138

Supreme Court of South Australia

(Court of Criminal Appeal)

R v SMITH

[2015] SASCFC 138

Judgment of The Court of Criminal Appeal

(The Honourable Acting Chief Justice Gray, The Honourable Justice Vanstone and The Honourable Auxilliary Justice David)

18 September 2015

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - INJURY OR DAMAGE TO PROPERTY - SENTENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - HARDSHIP - TO OTHERS

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - PRIOR CRIMINALITY

Appeal against sentence.  The appellant pleaded guilty to one count of damaging property, being a motor vehicle.  The appellant went to his sister’s house to ask about money owed to him by his brother.  His brother was present at the house.  Upon entering the premises the appellant received a hostile reception and a scuffle ensued.  During the scuffle the appellant received a blow to the head and suffered a severe laceration.  After receiving the injury, the appellant was angry.  He walked outside and drove his motor vehicle into the back of his sister’s motor vehicle, pushing it through the wall of the garage shed.  The appellant’s conduct resulted in about $2,000.00 worth of damage to his sister’s property.  The trial Judge sentenced the appellant to imprisonment for seven months, reduced from ten months on account of the appellant’s plea of guilty.  The Judge declined to suspend the sentence.

Whether the Judge erred by failing to have proper regard to the effect of the sentence on the dependants of the appellant.  Considering the unusual circumstances of the offending, whether the Judge erred in failing to exercise his discretion to suspend the sentence of imprisonment and whether the sentence imposed was manifestly excessive.

Held per Gray ACJ (Vanstone J and David AJ agreeing) (dismissing the appeal):

1.  The Judge had specific regard to the appellant’s dependents.  The hardship on the appellant’s children would not be categorised as extreme or extraordinary. 

2.  The appellant has a long history of trouble with the law.  The appellant’s record precluded the leniency that may be given to a first offender. 

3.  A sentence of seven months of imprisonment is not manifestly excessive when considering the circumstances of the offender and the offence.  No adequate basis has been established to suggest that the Judge’s exercise of discretion not to suspend the sentence was erroneous.

Criminal Law Consolidation Act 1935 (SA) s 20(3), s 85(2) and s 170(1); Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(n) and s 19A, referred to.
R v Penno (2004) 236 LSJS 457, considered.

R v SMITH
[2015] SASCFC 138

Court of Criminal Appeal:       Gray ACJ, Vanstone J and David AJ

GRAY ACJ.

1. This is an appeal against sentence. 

2. The defendant and appellant, Matthew Douglas Smith, was charged on Information with aggravated serious criminal trespass in a place of residence,[1] two counts of aggravated assault by use of an offensive weapon,[2] and damaging property, being a motor vehicle.[3]  The defendant pleaded guilty to the count of damaging property on 19 December 2013, the day of his committal for trial.  On 15 January 2015, before a Judge and jury of the District Court, the defendant was acquitted of the remaining charges.

   [1]    Criminal Law Consolidation Act 1935 (SA) section 170(1).

   [2]    Criminal Law Consolidation Act 1935 (SA) section 20(3).

   [3]    Criminal Law Consolidation Act 1935 (SA) section 85(2).

3. On 11 May 2015, the trial Judge sentenced the defendant to imprisonment for seven months, reduced from ten months on account of the defendant’s plea of guilty.  The Judge declined to suspend the sentence.  The Judge also imposed an intervention order prohibiting contact with the victim and her children.[4] 

   [4]    Criminal Law (Sentencing) Act 1988 (SA) section 19A.

   Background

4. The incident giving rise to the charges occurred on 21 June 2013.  The defendant attended at the home of his sister and her partner at about 6.00 pm.  The defendant’s brother and his partner were also present at the residence, along with the defendant’s sister’s children.  The defendant went to his sister’s house to ask about money owed to him by his brother.  Upon entering the premises the defendant received a hostile reception and a scuffle ensued.  During the scuffle the defendant received a blow to the head with the handle of a pickaxe.  The defendant suffered a severe laceration and was taken to hospital, where he received 16 stitches. 

5. The evidence was that the defendant was angry after receiving the injury to his head.  He walked outside and drove his motor vehicle into the back of his sister’s Holden Commodore motor vehicle, pushing it through the wall of the garage shed.  The defendant’s conduct resulted in about $2,000.00 worth of damage to his sister’s property.  At trial the defendant acknowledged that he committed the offence but claimed that he had no memory of it. 

6. In sentencing submissions, counsel for the Director of Public Prosecutions noted that, while the defendant had been acquitted of the charge of assault, the offending could still be characterised as an incident of domestic violence.  Counsel for the Director referred to the defendant’s criminal antecedents including a prior offence for property damage.

7. Counsel for the defendant submitted that the offence occurred in unusual circumstances.  The defendant had been seriously assaulted immediately prior to the incident.  The defendant had made an offer to pay compensation, which had been rejected by his sister.  Counsel further submitted that the defendant had custody of three of his children and planned to move to Tasmania, where he had lived for most of his life.  This would allow him to resume employment and his children would be closer to their mother. 

8. When sentencing the Judge remarked that the defendant had “an extremely bad criminal record” and listed relevant offending.  The Judge then turned to the defendant’s personal antecedents, including the fact that he cared for three children, before concluding:

   In my view the offending merits a sentence of imprisonment. In my view there are no proper grounds to suspend that sentence, due to your appalling criminal record which indicates you have a propensity to engage in violent behaviour, probably as a result of loss of temper.

   The fact that you are looking after three children cannot prevent the law from taking its course. I would have sentenced you to imprisonment for 10 months but reducing that sentence by 30% for your plea of guilty, you will be imprisoned for seven months.

   The Appeal

9. The defendant was granted permission to appeal by a Judge of this Court on the ground that the trial Judge had erred by failing to have proper regard to section 10(1)(n) of the Criminal Law (Sentencing) Act 1988 (SA), which provides:

   In determining the sentence for an offence, a court must have regard to such of the following factors and principles as may be relevant:

   (n)the probable effect any sentence under consideration would have on dependants of the defendant;

10. The defendant seeks permission from this Court to appeal on the ground that the Judge erred in failing to exercise his discretion to suspend the sentence of imprisonment when good reason existed to do so and on the ground that the sentence imposed was manifestly excessive. 

    Failure to Consider Effect on Dependants

11. The Judge referred to the defendant’s domestic situation:

    You have four children to an ex-partner in Tasmania and two children to a current partner in South Australia, the latter two being age two years and 15 weeks, or thereabouts.

    Of your children from Tasmania, they were removed from your former partner and put in your custody in South Australia. The 16-year-old has returned to Tasmania and you have custody of the 12-year-old girl and 10 and 8 year old boys.

    ...

    Since moving to South Australia you have not been in employment because you have had custody of the children and have been involved in looking after them.

    ...

    In the future you intend to return to Tasmania with the children in your custody to be closer to their mother and to gain employment.

12. The defendant has joint custody of all five of his children with his current partner.  No evidence was given as to this arrangement in sentencing submissions.  On appeal it was not contended that this arrangement was unsuitable. 

13. In my view, the Judge’s remark “[t]he fact that you are looking after three children cannot prevent the law from taking its course”, demonstrates that the Judge has had specific regard to the defendant’s dependents. Section 10(1) of the Sentencing Act requires no more of the Judge than to have regard to that factor as relevant.  I considered the provision in Penno,[5] where I held, Nyland J agreeing:

    [5]    R v Penno (2004) 236 LSJS 457, 464-5.

    This section has been described as encapsulating the common law position. The common law principle was described by Wells J in R v Wirth as follows:

    When (if ever), and to what extent (if at all), should the hardship caused, directly or indirectly, by a proposed sentence of imprisonment, to the family of, or to others closely associated with, the offender be taken into account by the Court in mitigation of that sentence?

    …

    Hardship to spouse, family, and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a criminal court … It seems to me that courts would often do less than their clear duty – especially where the element of retribution, deterrenct [sic], or protection of society is the predominant consideration – if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners.

    But it has been often remarked that the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they should draw back.  So it is proper that I should here add that, in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so. … For example, if it were demonstrated to the satisfaction of the court that to send a man to prison would, without much doubt, drive his wife to suicide, it would be a steely-hearted judge who did not, however illogically, at least try to meet the situation by suitably framed orders as to penalty.  But further than that, in my judgment, courts should not go.

    As some degree of hardship will invariably be suffered by dependants of a defendant upon imprisonment, hardship to those dependants will not generally to be taken into account in a defendant’s favour except in extreme or extra-ordinary circumstances.  In other words, the hardship must be of such a serious character as to call for a merciful approach to sentencing.  This principle was confirmed by this court in R v Carpentieri, Bates v Police and Neill v Police. 

    [Footnotes omitted].

    This is not an exceptional case.  There are no extreme or extraordinary circumstances.  I would dismiss this ground of appeal.

    Manifest Excess and Failure to Suspend

14. Counsel submitted that the defendant suffered a blow to the head immediately prior to the offending conduct.  The blow was serious; it resulted in a laceration that required hospitalisation and 16 stitches.  The defendant would have been upset and in pain.  The offending occurred against this background of provocation and, while this did not excuse the defendant’s conduct, it was a mitigating factor to be brought to account when sentencing.

15. Counsel for the defendant pointed to suggested errors made by the Judge which gave rise to a sentence that was manifestly excessive including: a failure to give adequate weight to the defendant’s role as a carer; an inaccurate characterisation of the defendant’s criminal record as “extremely bad” and “appalling”; and a failure to have sufficient regard to the fact that the defendant committed the offence in the immediate aftermath of sustaining a significant injury. 

16. As discussed above, the Judge did not fail to consider the defendant’s children and he could not be said to have afforded that factor too little weight.  In respect of the defendant’s criminal antecedents the Judge said:

    You have an extremely bad criminal record. I note with concern offences of Assault, two counts of Injure Property, Breach of Restraint Order, Assault Police Officer, two counts of Threaten Police, Assault Police Officer, Threaten Police again, Assault and another two counts of Breach of a Restraint Order, two counts of Breach of a Family Violence Order, two counts of Common Assault, Attempted Armed Robbery and Unlawfully Carry a Dangerous Article in a Public Place. Most of these offences occurred in Tasmania, your home State.

    Counsel for the defendant took issue with the Judge’s conclusion that the defendant has an “appalling criminal record which indicates [the defendant has] a propensity to engage in violent behaviour, probably as a result of loss of temper.”

17. It is clear that the defendant has a long history of trouble with the law.  Although the convictions for property damage occurred over 20 years ago, the defendant does have recent convictions for violent offending.  In my view, the Judge did not err in characterising the defendant’s criminal record as he did; the defendant’s record precluded the leniency that may be given to a first offender. 

18. Counsel for the Director pointed out that the defendant had already had the benefit of leniency of Tasmanian courts.  Counsel noted that, at the time of the offending, the defendant was subject to three suspended sentence bonds imposed by the Hobart Magistrates Court.  Counsel further noted that the defendant had breached a suspended sentence in the past and had also served terms of imprisonment.

19. In my view, the head sentence of seven months of imprisonment is not manifestly excessive when considering the circumstances of the offender and the offence.  No adequate basis has been established to suggest that the Judge’s exercise of discretion not to suspend the sentence was erroneous. 

    Conclusion

20. I would dismiss the appeal.

21. VANSTONE J:     I agree that the appeal must be dismissed.

22. DAVID AJ.           I would dismiss the appeal.  I agree with the reasons of Gray ACJ.