R v Smith (No 2)
[2022] ACTSC 38
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Smith (No 2) |
Citation: | [2022] ACTSC 38 |
Hearing Dates: | 2 March 2022 |
DecisionDate: | 2 March 2022 |
Before: | Berman AJ |
Decision: | See [19] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – common assault – time already spent in custody |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), s 10 |
Parties: | The Queen ( Crown) Mark James Smith ( Offender) |
Representation: | Counsel A Chatterton ( Crown) S McLaughlin ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) ACT Legal Aid ( Offender) | |
File Numbers: | SCC 177 of 2021; 178 of 2021 |
Berman AJ:
The offender in this matter, Mark James Smith, had known a woman I will describe as “the complainant” in order to protect her privacy for about two months, the two of them having met on Facebook, but later meeting in person on several occasions. On Saturday 9 January 2021, the complainant received a message from the offender asking her what she was doing. After further messages they agreed to meet up.
The complainant left where she was staying with her wallet, her medication and a hair brush, but soon became lost. She phoned the offender who gave her directions until they met up and then walked to the offender’s house in Kambah. Mr Smith lived there with his mother, but she was away for the weekend.
There came a time when Mr Smith prepared a meal for them both. The complainant had difficulty eating this meal because she did not have her dentures with her. This caused Mr Smith to become angry. He shouted at her. He grabbed her by her arm, and pushed her towards the front door, which he opened. He then pushed her out of the house, down a set of stairs. There were four or five steps which she fell down as a result of her being pushed by Mr Smith.
The complainant suffered a number of injuries: abrasions to her right hand, wrist and forearm; abrasions to her left hand; bruising to her left elbow and forearm; bruising to her right knee and bruising and abrasion to her left knee. The complainant found herself in the dark, injured and frightened. A neighbour heard her yell, ‘Let me back in the house.’ Using her phone, the complainant tried to get help from a number of people whom she knew but she was unsuccessful.
Eventually, Mr Smith did let her back into the house, but he continued to be angry with her, acting aggressively and abusively. At one point he told her that he would take her into the back bedroom where it would be, ‘dark forever.’ Further acts of violence took place.
At one point Mr Smith struck the complainant to the side of her face and mouth and the back of her head. Not surprisingly, she was scared by Mr Smith’s behaviour and believed that she could not leave his house. Eventually, early on Sunday morning, Mr Smith again forced the complainant out of the house through the front door. She ran off down the street seeking help by banging on the doors of nearby houses. Eventually she came across two men who helped her, one of them called 000 and asked for an ambulance. It arrived at about 5:50am and took her to Canberra Hospital.
Mr Smith is now to be sentenced on one count of assault occasioning actual bodily harm relating to the injuries the complainant suffered when she was pushed down the stairs, and one count of common assault relating to the blow the offender struck to the side of her face and mouth. The maximum penalty for those offences are five years and two years’ imprisonment.
Photographs of the injuries were tendered, but I have to be careful because it is common ground that the complainant had some unspecified injuries before she met up with the offender that night. In any case the injuries are of a type which are likely to have resolved within a relatively short time. The Crown did not rely on a victim impact statement, but nevertheless it can be inferred that whatever happened to the complainant was unpleasant, frightening and painful.
Mr Smith has previous convictions for relatively minor matters: common assaults and damage property offences. There is a family component to some of those offences. The criminal damage offence committed in 2007 involved him throwing some butter at a wall when he was arguing with his mother, and offences of common assault in 2015 were committed by him against his former partner.
Mr Smith has lived in the ACT for almost all his life. He left school quite early, at the beginning of high school, and began mowing lawns. He spent 17 years as a plasterer and for five years leading up to his arrest, he was self-employed as a landscaper. His industriousness has continued while he was bail refused in custody, working firstly as a sweeper and presently in the kitchens.
He has been a user of drugs for some time. As is usually the case, although he started by using only cannabis, he moved to harder drugs, problems increasing for him after his father died in 2007. Recognising that he needed to take control, he moved to a location where he knew no one and he was able to reduce his use of drugs before moving back to the ACT where, while he continues to use drugs, they have not been a problem for him.
Mr Smith’s plea of guilty to the offence of assault occasioning actual bodily harm came on the day his matter was listed for trial. He had, however, offered to plead guilty at an earlier stage at the Criminal Case Conference. In such circumstances, the sentence I will impose upon him will be approximately 20 per cent less than it otherwise would have been.
As I mentioned earlier, the impact of these offences on the complainant was such that she was frightened and hurt. The injuries she suffered are entirely expected from Mr Smith’s actions in throwing her down a small flight of stairs. It is not necessarily less serious for someone to throw another person down a small flight of stairs than it is for them to strike a blow.
I assess the objective gravity of the two offences as both being slightly below the middle of the range of objective seriousness. In making this assessment, I have taken into account that the offences constitute family violence within s 8 of the Family Violence Act 2015 (ACT). That said, however, it is the case that there are none of the more significant factors regarding family violence in the present matter. The complainant, for example, did not live with Mr Smith. There was no great breach of trust, and there were no other relevant features, such as the presence of children.
Offences of violence like these are relatively common place. Some people resort to violence after losing their temper more than they should. General deterrence is important in almost all offences, but particularly so in offences of violence of this type. The offender’s criminal history suggests he does have a tendency to lose his temper and react violently. Personal deterrence is important, therefore, in this case as well.
Mr Smith has prospects for his future. He plans upon his release from custody to resume his landscaping work. He still has most of his tools but will, of course, have to build up a client base again. He will be living with a long-term friend upon his release from jail.
The Crown provided me with some cases which were said to be comparable. It is no criticism of the Crown to say that there is not a great deal of assistance that can be gained from these cases. One of the reasons for that is that offences of assault occasioning actual bodily harm are rarely dealt with in the Supreme Court. The only reason that this matter is before me is because Mr Smith was charged with more serious offences which the prosecution decided not to proceed with.
Mr McLaughlin, who appears for the offender, concedes that the s 10 threshold has been crossed for each offence (see s 10, Crimes (Sentencing) Act 2005 (ACT)). I accept that concession.
He also submits that the time that Mr Smith has spent in custody with bail refused is such that he should be released immediately. I also accept that submission. I sentence Mr Smith as follows:
(a) for the offence of common assault, Mr Smith is sentenced to imprisonment for two months to date from the day he was arrested, namely 20 May 2021.
(b) For the offence of assault occasioning actual bodily harm, Mr Smith is sentenced to imprisonment for eight months to date from 20 June 2021. The overall sentence is one of nine months and the sentence of imprisonment thus expired on 19 February 2022.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Berman Associate: Date: |
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