R v Smith

[2020] ACTSC 277

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Smith

Citation:

[2020] ACTSC 277

Hearing Date:

13 October 2020

DecisionDate:

13 October 2020

Before:

Elkaim J

Decision:

See [27]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – cause grievous bodily harm – choking or strangling – suspended sentence

Legislation Cited:

Crimes Act 1900 (ACT) ss 25, 28
Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33

Cases Cited:

R v Cowling [2019] ACTSC 138
R v Lacey [2020] ACTSC 241
R v Uluikadavu [2020] ACTSC 237

Parties:

The Queen (Crown)

Joseph Adam Smith (Offender)

Representation:

Counsel

M Lucero (Crown)

J De Bruin (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Numbers:

SCC 68 of 2020; SCC 69 of 2020

ELKAIM J:

1. On 20 August 2020 the offender pleaded guilty to two counts in an indictment dated the same day. The charges and their maximum penalties are:

(a)One count of intentionally and unlawfully choking or strangling (CC1135/2020), contrary to s 28(2)(a) of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 5 years’ imprisonment.

(b)One count of causing grievous bodily harm (SCCAN130/2020), contrary to s 25 of the Crimes Act. The maximum penalty for this offence is 5 years’ imprisonment.

1. The plea was entered on the sixth occasion before this Court, after a trial date had been set, and following a criminal case conference.

1. The offender was arrested on 17 January 2020. He was granted bail on 4 August 2020. He has spent 191 days in custody associated with the current offences.

1. According to the Statement of Facts, this is what happened: Ms Jones (a pseudonym) lived with her two sons (aged 21 and 15 respectively) in a housing complex in Isaacs in the ACT. The offender was in a relationship with Ms Jones.

1. On 16 January 2020 a verbal argument broke out between the offender and Ms Jones. He was apparently angry at her tardiness in getting up and getting dressed. He was not impressed by her explanations and began to throw items in the bedroom. He grabbed her face with both his hands and squeezed. He then squeezed Ms Jones’ throat and challenged her complaint that he was hurting her. This is the choking offence.

1. The offender pushed Ms Jones onto the bed. He said that he was leaving and began to assemble certain items. Ms Jones warned him not to “steal my stuff”. She tried to stop him leaving with his bag. He struck Ms Jones on the side of her face. She may have blacked out momentarily. This is not surprising as she had suffered a significant injury.

1. A further altercation occurred outside the house when Ms Jones struck the offender with a broomstick. He pushed her to the ground. He then left.

1. An ambulance attended and conveyed Ms Jones to hospital. She was admitted for about four days. Examination revealed a comminuted fracture of the orbit of her left eye. She was suffering from double vision, a tender jaw and a tender neck.

1. There is a victim impact statement from Ms Jones. She says, in respect of her injuries:

Since the incident I’ve lost part of my vision to my left eye, I get a lot of headaches and have lots of fits when I get anxious. I’ve had surgery on my left eye which was painful and took a few weeks to heal.

1. The offender took issue with the reference to fits, stating that there was no evidence linking the fits to the assaults. However on my reading of the victim impact statement, the fits are associated with anxiety and therefore more likely to be a psychological injury. Such an injury is an almost inevitable consequence of an attack of the nature sustained by Ms Jones.

1. A matter which concerned me was the loss of vision in Ms Jones’ left eye. I would have preferred some evidence about the extent of the loss. Unfortunately it was not available.

1. Domestic violence is always unacceptable. Being choked is a terrifying experience. The choking in this case does not seem to have carried on beyond a few seconds nor caused any injury so I assess the objective seriousness of the offence at below medium. I think the second offence is more objectively serious because Ms Jones suffered facial fractures. Taken with the significant injuries I assess the objective seriousness of this offence at above medium level.

1. Another element is that the victim’s two sons were present in the house when the assaults occurred. They did not see the attacks but no doubt very soon became aware of their consequences. This factor has been taken into account in the assessment of the objective seriousness of the two offences.

1. At the time of the offences the offender was on conditional liberty. He was subject to an Intensive Corrections Order (ICO) that had been imposed in the Magistrates Court for a driving offence. Although his compliance with this order was otherwise apparently satisfactory, upon arrest illicit substances were found following urinalysis. The ICO was cancelled and the offender spent the balance of his term of imprisonment in custody (about eight days).

1. The offender was born in 1984. He is one of nine children. He had a positive home upbringing, although his father unfortunately passed away when he was 10 years of age. This event seems to have precipitated a path into the use of illicit drugs.

1. The offender has a daughter of his own, now aged 16, but he has had no contact with her for about 5 years. He is in a relationship at the moment but this is mostly conducted over the phone as his partner is living interstate and is subject to travel restrictions due to the pandemic.

1. The offender left school after Year 10. He has worked in several types of employment but has been unemployed since 2016.

1. The offender has a long history of illicit drug use but is now attempting to deal with this problem through pharmacotherapy.

1. Although the offender expressed remorse to the authors of the pre-sentence report he also suggested Ms Jones was exaggerating and her injuries may have even been “fake”. He was assessed as having a medium high risk of re-offending “due to his lack of employment, family/relationships, peer associations, drug and alcohol abuse and his attitude”. His attitude was said to be of significant concern. It was suggested that he be referred to a domestic abuse program.

1. The pre-sentence report says that the offender is suitable for an ICO because it “will provide an opportunity for Mr Smith to undertake treatment to address his offending behaviours and possible drug use, while being closely monitored by this Service”.

1. There is another element in this case which is important. On 4 August 2020 I granted the offender bail. The sole reason for the grant of bail was to enable him to care for his ailing mother. Although he is one of nine siblings it appears that he and a particular sister are the only family members able, or perhaps willing, to care for their mother. This sister however, has returned to work, and is no longer able to be a carer. If the offender is returned to custody, there will be a significant impact on the care of the offender’s mother.

1. I was referred to three roughly comparable cases: R v Uluikadavu [2020] ACTSC 237, R v Lacey [2020] ACTSC 241 and R v Cowling [2019] ACTSC 138. Each matter has its own distinctive features, but nevertheless I think the approach that I intend to take is consistent with the results in these cases.

1. While an ICO is theoretically an option I think the preferable course in this matter is to proceed by way of a suspended sentence.

1. The offender is entitled to a discount for his plea of guilty which I assess at about 20%.

1. The provisions of the Crimes (Sentencing) Act2005 (ACT) are important, in particular ss 6, 7, 10 and 33. There is clearly a need for both specific and general deterrence which is highlighted by the domestic violence component of the offences. I think I can state with certainty that but for the needs of the offender’s mother he would have been returned, at least for a period, to full-time custody.

1. The two offences occurred as part of the same criminal incident so that the principles of totality apply. Nevertheless I think it is important, in particular because of the seriousness of the second count, that there be a degree of overlap to recognise the specific commission of this offence.

1. I make the following orders:

(a)For the offence of intentionally and unlawfully choking or strangling (CC1135/2020), the offender is sentenced to 19 months imprisonment (reduced from 24 months) to commence on 6 April 2020 and end on 5 November 2021.

(b)For the offence of causing grievous bodily harm (SCCAN130/2020), the offender is sentenced to 29 months imprisonment (reduced from 36 months) to commence on 14 June 2020 and end on 13 November 2022.   

(c)The total period of imprisonment is 31 months and 8 days commencing on 6 April 2020 and ending on 13 November 2022.

(d)The above sentences are suspended with immediate effect on condition that the offender enter a good behaviour order which will expire on 13 November 2022.  

(e)It is a condition of the good behaviour order that the offender attend any domestic abuse program that he is referred to. It is a further condition that he perform 175 hours of community service.

I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 13 October 2020