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.

This is an appeal against sentence.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Smith

Details

AGLC: R v Smith [2015] SASCFC 138
Case: [2015] SASCFC 138
Decision Date: 18 September 2015

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the defendant, Mr. Smith, by a trial judge in South Australia. Mr. Smith had pleaded guilty to an offence of property damage, specifically driving his motor vehicle into his sister's car, causing approximately $2,000 worth of damage. The trial judge sentenced him to seven months imprisonment, reduced from ten months due to his guilty plea, and declined to suspend the sentence. The appeal was brought before Acting Chief Justice Gray, Justice Vanstone, and Acting Justice David.

The legal issues before the appellate court were whether the head sentence of seven months imprisonment was manifestly excessive, and whether the trial judge erred in exercising their discretion by refusing to suspend the sentence. These issues required the court to consider the nature and circumstances of the offence, the offender's personal circumstances, including his prior criminal record and his responsibilities as a caregiver, and the impact of the offending on others.

The appellate court, in dismissing the appeal, reasoned that the head sentence was not manifestly excessive given the circumstances of the offence and the offender. The court acknowledged the defendant's prior criminal record, which the trial judge had described as "extremely bad" and indicative of a propensity for violent behaviour. While the court noted the defendant's personal circumstances, including his care for three children and his intention to relocate, it found no adequate basis to suggest that the trial judge's discretion not to suspend the sentence was erroneous. The court upheld the trial judge's assessment that the defendant's criminal record outweighed his personal circumstances in determining the appropriateness of a suspended sentence.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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. 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. 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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY ACJ (dissent)

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 I would dismiss the appeal. VANSTONE J: I agree that the appeal must be dismissed. DAVID AJ. I would dismiss the appeal. I agree with the reasons of Gray ACJ.

Ratio Decidendi

Legal Principle Established

Established by:

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