R v Smith

[2020] NSWDC 459

District Court

New South Wales

Medium Neutral Citation:

R v Smith [2020] NSWDC 459

Hearing dates:

13 July 2020

Date of orders:

13 July 2020

Decision date:

13 July 2020

Jurisdiction:

Criminal

Before:

M L Williams SC DCJ

Decision:

A term of imprisonment of three years, six months with a non-parole period of two years, five months: at [37].

Catchwords:

SENTENCING — Aggravating factors — Breach of conditional liberty

SENTENCING — Mitigating factors — Rehabilitation

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Maximum penalty — Objective seriousness —Purposes of sentencing — Victim impact statement

SENTENCING — Subjective considerations on sentence — Bail pending sentence — Intoxication — Special circumstances

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Cordeiro v The Queen [2019] NSWCCA 308

Day v The Queen [2017] NSWCCA 192

Jeffreys v The Queen [2015] NSWCCA 132

R v Thomas [2007] NSWCCA 269

R v Tonari [2014] NSWCCA 232

Texts Cited:

Nil

Category:

Sentence

Parties:

Regina (Crown)

Tama Smith (Offender)

Representation:

Ms N Keay (Crown Prosecutor)

Mr P Winch (Counsel for the Offender)

File Number(s):

2019/542

Publication restriction:

STATUTORY NON-PUBLICATION APPLIES
Section 578A Crimes Act 1900 (any matter that may identify the complainant(s))

Judgment

1. Tama Smith, now aged 45, was found guilty by a jury at Goulburn District Court in February this year of one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900. The offence carries a maximum penalty of 14 years with a standard non-parole period of seven years imprisonment. The maximum penalty and the standard non-parole period are yardsticks in the sentencing process which must be carried out bearing in mind the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, which include punishment, denunciation, making the offender accountable for his actions and recognising the harm done to the victim.

2. He was in custody for one day before being granted bail. He was granted bail after the jury’s verdict so that he might return to Queensland and put his affairs in order. It is conceded by Mr Winch of counsel for the offender, that a term of full-time custody is required, and it is unnecessary for me to consider any alternatives. It is clear that a term of imprisonment should take into account the one day in custody already served, so it would commence yesterday, 12 July 2020.

3. The facts on which I must sentence Mr Smith have been outlined by the Crown, and are not contested by Mr Winch as being consistent with the jury’s verdict and the evidence at the trial.

Facts

4. The victim was 39 years old at the time of the offence.

5. Smith was working as a scaffolder in the Southern Highlands and residing at caravan park in Moss Vale at the time.

6. On New Year’s Eve 2018, Smith went to the Argyle Hotel at Moss Vale and started drinking beer with friends. The group spent the afternoon and evening at the hotel. Melissa and her partner Anthony met the offender and other friends at the Argyle. Melissa was a friend of the victim and they had planned to spend New Year’s Eve together. The victim met Melissa at the Argyle at about 4.45pm. She was introduced to the offender, who she had never met before. The four of them – that is Melissa, Anthony, the victim and the offender – were drinking alcohol under a gazebo in the rear of the hotel.

7. The offender said to the victim, “You look beautiful with your hair up.”

8. They continued drinking, and at about 8.30pm they left the Argyle to attend a party at Moss Vale. The victim observed the offender to be getting very drunk. His speech was slurred and he was swaying while walking. He said to her on three or four occasions, “Can you touch my boobs as I think I’ve got lumps in them?” and she said, “Yes, there’s a lump in there. Go and see a doctor.” This and the earlier comment about her hair was the only attention that he had paid to her that night. She was in a relationship at the time and was not interested in him. She felt uncomfortable as she did not know anyone else at the party. At about 10pm she left the party with Melissa, Anthony and the offender. They arrived back at Melissa’s house at about 10.15pm.

9. The victim, Melissa and Anthony continued drinking and dancing until midnight. The offender passed out in the courtyard and a photograph of him in that state was taken at 11.15pm.

10. The victim had some more ciders back at the house and the offender remained passed out in the backyard.

11. At about 12.15am, that is, on the morning of 1 January 2018, the victim told Melissa she wanted to go to bed, and she went to sleep in the spare room. She recalls dreaming about her boyfriend, Chris. She woke up with someone on top of her having penile/vaginal sex with her. She said, “Is that you, Chris?” to which the person replied “Yes ” and she said, “How did you get back from Queensland?” and at this point she realised it was not her boyfriend and she said, “Get off”. The offender said, “I haven’t finished yet” and she noticed his Maori accent. She realised it was Smith and tried to push him off and attempted to kick him with her left leg. He got up and walked out of the room.

12. The victim went to speak to Melissa and told her what had happened. She was upset and teary. Anthony got out of bed and the victim said that she had been raped. Triple-0 was called at 2.18am and the police arrived. Anthony had a conversation with Smith in which he said, “The police are here” and Smith said, “What for?” and Anthony said, “You’re getting done for rape” and Smith said it was consensual.

13. There is forensic evidence of vaginal intercourse. Dr Williams gave evidence at the trial that the victim’s blood alcohol concentration as at 10am was 0.092 and that that could cause drowsiness and an altered level of consciousness and reduce the perception of pain or physical stimulus and, given her state of sleep and alcohol consumption, it was possible that she was unaware of her underpants being removed and other physical stimulation such as being touched.

14. In the afternoon of 1 January, Smith sent a text message to Anthony saying, “Wait for what, bro, I promise you she kissed me, she gave me head and we had a 69, how can that not be consent?”

15. The Crown case at trial was that the offender knew that she was not consenting. The jury, by its verdict of guilty, clearly accepted that and rejected the evidence by Smith that the intercourse was consensual.

Victim impact statement

16. The victim read her victim’s impact statement in court today. Although not tested or given on oath, it is appropriate for the Court to give significant weight to the statement. As Basten JA said in R v Thomas [2007] NSWCCA 269 at [37],

“… it will often be appropriate to give weight to a victim impact statement where the conduct of the offender is otherwise established beyond reasonable doubt and the statement is restricted to subsequent effects on the victim.”

17. The statement of the victim here is restricted to the subsequent effects of the offence on the victim. The statement is an eloquent description of the significant effects on her, which the Court bears in mind in the sentencing process.

Offender’s material on sentence

18. A pre-sentence report was prepared by Queensland authorities, in which the offender continues to claim that he had consensual oral and vaginal sex with the victim. Despite that, he raised no unexpected concern at the Court outcome and was co-operative with the assessment.

19. He is currently subject to a domestic violence order in Queensland with respect to his former partner.

20. There was an offence on 19 April 2018. He was sentenced by O’Brien Chief Judge in the District Court of Queensland on 28 October 2019 to a two-year term of imprisonment, to be suspended, bearing in mind that he had served almost seven months in custody after his arrest. He was released on November 2018 and was on conditional liberty at the time of this offence in the early hours of 1 January 2019, and it is common ground that that is an aggravating factor to be taken into account.

21. The offender’s history, which is set out in the pre-sentence report and is consistent with other material that has not been challenged by the Crown, seems to be uncontroversial. He came to Australia from New Zealand when he was eight years of age. He was of good character, apart from the choking offence committed in April 2018. As the Chief Judge said, that offence was a most bizarre one and certainly seemed to be out of character for him. He pleaded guilty to that offence. He was described as having a good work history and there were many who spoke well of him at the time. He was employed full-time and was financially capable of paying debts.

22. It was suggested that, given his current offence and admitted domestic violence history, rehabilitative needs with regard to interpersonal boundaries in relationships were evident, and it is likely that he would be recommended for treatment programs.

23. He was educated to year 10, holds intermediate scaffolding tickets and has been in regular long term employment.

24. Although it was not on his record, he acknowledged a drink driving offence some 20 years ago, but the circumstances and location of that offence are not disclosed.

25. The recommendations in the report are expressed to be subject to current COVID-19 restrictions, but in view of Mr Winch’s concession, they are of academic interest only at present.

26. I have a reference from Tenille Sealy, an indigenous education worker/special needs support worker, who has been in a relationship with him since November 2019. She currently looks after her four children. She says that he has been open about his offending. She was present during the trial. She said that he was very involved in the upbringing of her four children. Her elder daughter suffers from post-traumatic stress disorder, anxiety and depression. Her younger son has ADHD and ADD and another son has autism, and Mr Smith has been very helpful in implementing strategies to keep their behaviour under control.

27. Monique Morcus, a child care worker, has observed Mr Smith’s interactions with Ms Sealy’s children and she is concerned about how the loss of him would cause a change in the home and family dynamic and the negative impact of this on the children.

28. His employer of some ten years describes him as reliable, trustworthy and hard-working. Mr Lloyd, a long term colleague, also speaks highly of him.

Objective seriousness and other relevant factors on sentence

29. As the Crown put, in concise written submissions, the maximum penalty and the standard non-parole period reflect the fact that sexual intercourse without consent is an extremely serious offence. It is an invasive and degrading act and is intrinsically an extreme form of personal violence. The form of penetration is but one measure of the objective seriousness of the offence. Other relevant factors include any degree of violence, the physical hurt inflicted, the form of the forced intercourse, the circumstances of humiliation and the duration of the offence, and while there is a great range of conduct involved in offences under s 61I in terms of objective seriousness, cases of actual penile penetration will rarely fall at the low end of the spectrum. Here I would class the offending as slightly below the mid-range of objective seriousness, bearing in mind the facts to which I have referred, namely, there was little interaction between the offender and the victim on the night, she gave him no indication that she was attracted to him, but he went into her room hopeful of sexual intercourse because it was New Year’s Eve.

30. The jury rejected the assertion of consent. He commenced having sexual intercourse with a sleeping woman; she was asleep and could not consent. There was a limited degree of planning over a brief time, involving him choosing to enter her room and commence intercourse with her without her consent. He removed her underpants while she was asleep. He knew that she was asleep and was not consenting. He did not use a condom and he tried to continue after she woke up and told him to stop.

31. The Crown points to the Court of Criminal Appeal decision in Cordeiro v The Queen [2019] NSWCCA 308 as a broad comparator, and I take into account the facts and the judgment on the sentence appeal delivered by Harrison J in that matter.

32. I also take into account a number of matters referred to in the Public Defender’s tables, to which Mr Winch took me during the course of submissions. They include Day v The Queen [2017] NSWCCA 192, Jeffreys v The Queen [2015] NSWCCA 132, R v Tonari [2014] NSWCCA 232; and Cordeiro v The Queen [2019] NSWCCA 308.

33. There are no further aggravating factors, beyond his being on conditional liberty, raised in submissions or apparent from the evidence. I have dealt with Mr Winch’s submission that there was no planning and that it was only opportunistic and committed while he was heavily intoxicated, but he must have been, as I have indicated, in a position to engage in a limited degree of planning.

34. As to mitigating factors, the evidence suggests that he has reasonable prospects of rehabilitation, particularly if he was to undertake counselling and treatment of the type referred to in the Queensland sentence assessment report. He has, both before trial and since his conviction, complied with bail conditions and there is no evidence of any further offending.

35. He has concerns of being deported to New Zealand once his term of imprisonment concludes, as he has no family residing in New Zealand. However, as the authorities demonstrate, the prospects of deportation are not a matter that I can take into account on sentencing.

36. I accept that there is the basis of a finding of special circumstances, given the need for treatment for alcohol consumption. There is no evidence of illicit drug use or other criminogenic or antisocial factors. His low risk of reoffending is apparent from the pre-sentencing report and the other material to which I have referred.

37. The orders that I make are:

1. The offender is convicted of the offence.

2. I impose a sentence of imprisonment of 3 years, 6 months, to commence on 12 July 2020.

3. I impose a non-parole period of 2 years, 5 months, expiring on 11 December 2022.

4. I find special circumstances.

38. Note – The extempore remarks were revised without access to the court file.

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Decision last updated: 19 August 2020