R v Smoday

[2023] NSWDC 287

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Smoday [2023] NSWDC 287

Hearing dates:

14 April 2023

Date of orders:

14 April 2023

Decision date:

14 April 2023

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate imprisonment sentence of 5 years and 4 months with a non-parole period of 3 years and 2 months

Catchwords:

CRIME – Armed Robbery - Attempted Armed Robbery - Larceny

SENTENCE – sentence after trial

SENTENCE – relevant factors on sentence - objective seriousness - moral culpability reduced due to mental condition, deprived background and impact of trauma from sexual abuse as a child - impact of COVID

Legislation Cited:

Crimes (Administration of Sentences) Act 1999 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Legge v R [2007] NSWCCA 244

Moodie v R [2020] NSWCCA 160

Nasrallah v R [2021] NSWCCA 207

R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111

Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14

Category:

Sentence

Parties:

Benjamin Smoday (the offender)
Director of Public Prosecutions (the Crown)

Representation:

Counsel:
D Woodbury (for the offender)

Solicitors:
A Hughes for the Crown (for Director of Public Prosecutions)
Blaxland Criminal Law (for the offender)

File Number(s):

2021/190525

sentence JUDGMENT – ex tempore revised

Introduction

1. Benjamin Smoday is for sentence today after having been found guilty by a jury at Wollongong District Court on 7 November 2022. The findings relate to three serious offences and one related offence.

2. The serious offences are:

• Count 1 – Armed Robbery: s 97(1) Crimes Act 1900 (NSW);

• Count 2 – Attempted Armed Robbery: s97(1) & s 344A (1) Crimes Act);

• Count 3 – Larceny: s117 Crimes Act (a related matter associated with Count 2); and

• Count 4 – Armed Robbery: s 97(1) Crimes Act.

3. Smoday has been in custody since his arrest on 2 July 2021. At the time he was subject to an Intensive Correction Order. That order was breached, and he served the balance of that order until 22 July 2021. He was also, subject to a Court Attendance Notice. He eventually received a short sentence.

4. Taking the need for some independent punishment for both the breach and that larceny matter, I have determined that his sentence will start at the expiry of the term served for the ICO; which is 22 July 2021.

Facts for sentence

5. On Sunday, 27 June 2021 at about 9.30am, a heavily disguised man robbed the cashier in a North Wollongong liquor outlet for two bottles of whisky and about $400 in cash. The man was wearing; a black beanie, a blue disposable face mask, a black polo shirt with long white sleeves; navy

6. track pants with stripes, white socks and black thongs. He threatened the cashier with the bottles that he had picked up from the store and then took. The incident was captured on CCTV.

7. At about 5.30pm on 28 June 2021, a man entered the North Wollongong service station. He was wearing a black beanie, a blue disposable mask, a black polo shirt with long white sleeves, navy track pants with white stripes, white socks and black thongs. He took some scissors from a shelf and, having removed them from their packet, he threatened a customer with them.

8. The threat was directed at the cashier as he demanded of her, "Put the money on the counter or I'm going to give it to him". The cashier refused his request, and the man left the store saying to the person he had threatened, "Don't worry mate, I wouldn't have stabbed you".

9. The ‘would be’ robber took two bottles of flavoured milk from the store as he left. The incident was captured by CCTV.

10. At about 8.14pm on 1 July 2021, a man entered a liquor outlet in East Wollongong. He was wearing a black beanie, a blue disposable face mask, a black and white flannelette long sleeved shirt, track pants and shoes.

11. He took a litre bottle of Grant's whisky from a shelf and threatened the cashier saying, "Quick, before I smash a bottle over your head, give me everything". His tone was aggressive. He grabbed about $855 in cash and left with the cash and the bottle of whisky. The incident was captured on CCTV.

12. At about 3.45pm the following day, Benjamin Smoday was spoken to by police. At the time he had an almost empty one litre bottle of Grant's whisky with him. He was arrested for unrelated matters.

13. He told police he was homeless and that his possessions could be located at a friend's place in East Wollongong. The police recovered several bags of clothing from those premises. In the bags they found a black and white checked long sleeve shirt, a black beanie, a black polo shirt with long white sleeves, navy tracksuit pants with white stripes and a blue disposable face mask.

14. Smoday was interviewed about the robberies. He told the police there was “no way” he had committed them. DNA testing linked some of the clothes found to Mr Smoday.

Objective seriousness

15. Armed robbery is not just a crime against property, it is a crime against people. Although the service station robbery was charged as an attempt, the accompanying larceny of the flavoured milk meant that in essence it was in terms of criminality the same as the robbery offences because the attempt at robbery and the larceny were concurrent; one with the other.

16. Where citizens are robbed and assaulted and threatened with weapons, even improvised ones, it can have a terrible impact on them. Such crimes, particularly where, as here, they occur at places many use, can have more serious consequences. Staff at such service providers live in constant fear. Extra security is required. Sometimes stores are closed because people lose confidence in the ability of police and the Courts to protect them. If people feel our communities are not safe, they learn to fear others and lose trust in others. Where people are fearful the entire community suffers. As a consequence, we lose our freedom to go out and use public facilities and participate in community and necessary community activities.

17. Where criminals are caught committing such offences, the community will lose trust in the Courts if they do not punish such crimes and punish them severely.

18. Here, in each case the person targeted was at work, providing a service to the public. A single operator was targeted. A weapon was brandished, and fear was engendered (in the second case, in both the operator and the customer).

19. Only a small amount of cash or items of relatively low value were taken. In the service station attempted robbery, there were two additional features were; the nature of the weapon, the scissors, designed for cutting, and two people were directly threatened.

20. The Court of Criminal Appeal has indicated that in the ordinary course of an armed robbery, and this sadly is such an ordinary case, sentences for those matters which fall within the guideline range should receive a sentence of 4 years' imprisonment following a late plea of guilty: R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111. While not prescriptive, careful attention to any applicable guideline judgment of the Court of Criminal Appeal is required: s 42A Crimes (Sentencing Procedure) Act 1986 (NSW); Moodie v R [2020] NSWCCA 160.

21. I note that there were no victim impact statements. The absence of a victim impact statement is not a matter in mitigation. I heard the victims give evidence. Each in their own way conveyed their distress and fear about what they experienced as the result of threats that were made to them, matters I take into account, as I must.

22. Specifically, here I note in relation to each matter:

1. there was little apparent planning and only a rudimentary although effective disguise;

2. the weapon used was improvised;

3. in each case the victim was vulnerable as a service provider;

4. the offences were committed in the presence of members of the public and other staff;

5. a real threat was made but not advanced or carried out;

6. very modest amounts of property and money were taken.

23. Finally, I would note that there was really nothing to distinguish in terms of objective seriousness one from the other.

24. It is accepted by the defence following the conviction, that so serious was each matter, a custodial sentence is required. The facts recited need little more to describe the seriousness of each matter. Each were sadly typical of a

25. similar type and objectively similarly serious. Tragically each was a type of the ordinary case contemplated by the objective factors noted in the Henry guideline. But that guideline also considered some subjective features of the offender which individually were different here because for the victims of such offences, the events were not ordinary.

26. My role is to take into account and consider what occurred, any matters that aggravate, any matters that mitigate the facts, and of course, the case for the offender. I must then attempt to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment. In such cases they are usually expressed by time in custody: Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14.

Objective seriousness and moral culpability

27. In the written and oral submissions before me, there were no real disputes about matters of principle. One matter of dispute was the degree, if any, that the offender's underlying mental conditions were to be taken into account in an assessment of the objective seriousness of the matter.

28. I must make that objective seriousness finding and I have to consider matters that are causally related to it. All factors which bear upon the seriousness of the offence should be taken into account. They include matters personal to the offender though causally connected with, or materially contributed to, the commission of offences such as motive, provocation, or non exculpatory duress, or in some cases underlying mental conditions.

29. A judge in synthesising appropriate sentence also has to consider the moral culpability of the offender, that is their blameworthiness for the offending.

30. Matters relevant to a reduction of an offender's moral culpability can include:

• The effects of childhood deprivation: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37;

• Childhood trauma such as being a victim of child sexual assault: Nasrallah v R [2021] NSWCCA 207; and

• Mental health issues: Director of Public Prosecutions (C’th) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].

31. Often, they are interrelated and sometimes, as here, inextricably interrelated.

32. The concept of objective seriousness and moral culpability are distinct concepts, but a Court does not reach a decision by a staged approach to sentencing. All relevant matters have to be considered.

33. It is clear from the material before me that the offender had a significant addiction to illicit drugs and that addiction was present at the relevant time. Such was the state of his addiction that he had what is a diagnosed mental condition, a substance abuse disorder. It would appear that as a consequence of his childhood, his trauma suffered as a child and his related drug use, that even when drug free some of the symptoms continued. The genesis of those problems goes back to institutional child sexual assault, and childhood deprivation.

34. It is clear from all the material before me that he was deeply unwell at the relevant time and that he is, to a degree, still deeply unwell. Those matters reduce his moral culpability, but so far as objective seriousness is concerned, given his denials, they are not matters that I take into account at that level.

35. That said, they are taken into account when I come to synthesise the relevant matters and it would make little difference when it comes to the overall sentence that I impose. I make that finding to resolve a controversy between the parties.

Maximum penalties and sentence structure

36. The maximum penalties for the armed robbery offences or attempt armed robbery is 20 years' imprisonment. The maximum penalty for larceny is five years' imprisonment. Careful attention to maximum penalties required that they, along with the Henry guideline, are important sentencing measures to be balanced with all other relevant factors.

37. The guideline of course is not the starting point nor is it a tramline: Legge v R [2007] NSWCCA 244. It should not impermissibly confine the exercise of a judge's sentencing discretion. Nevertheless, as is clear, so serious were the offences that a considerable sentence has to be imposed for each.

38. I then have to consider matters of aggregation and there must be some independent punishment for each offence. At the same time the totality of the sentences must reflect everything that was done and all the other purposes of sentencing.

39. I do not simply add one sentence on top of the other. I have to take a considered view as to what an appropriate total sentence should be. That sentence should reflect both the purposes of sentencing and the background of the offender.

40. So too when it comes to fixing a release date. Although I must be guarded, it would seem to me that the longer the offender is supervised in the community, the safer the community will be. He will need treatment and assistance. There are a significant number of unresolved issues and there is a community interest in being monitored and assisted for as long as possible. All justifying a finding of special circumstances.

41. That said, his minimum time in custody must properly reflect the retributive aspects of sentencing. Any release to parole will be dependent upon a determination by the State Parole Authority. They will not allow his release to parole unless it is satisfied that it is in the interests of the safety of the community: s 135 Crimes (Administration of Sentences) Act 1999 (NSW).

42. The evidence that I will shortly come to relating to his background:

1. prior capacity to engage in pro social life;

2. the need to maintain pro social contacts, particularly with his son;

3. the difficulties in custody, particularly during lockdown, and

4. his need for assistance with both drug and alcohol addiction;

5. help adjusting to community life after a lengthy sentence; and

6. mental health treatment.

43. All require a finding of special circumstances.

44. As I have said, the overall sentence must be just and appropriate to the totality of his crimes.

The case for the offender

45. Turning now to the background of the offender.

46. He has a criminal record since 2003. Those matters involve drug use, driving offences, and low-level violence. His first gaol term of any length was in 2010 but since then he has been regularly gaoled. He was released prior to the commission of this offence on 21 January 2021. There has been some escalation in his history but nothing as serious as this.

47. At the relevant time he was on an intensive correction order but his transient lifestyle at the relevant time made genuine engagement with Community Corrections difficult. He also had the unrelated matter for which he received a Court Attendance Notice and subsequently served a sentence. It will be effectively incorporated into the sentence.

48. I note that one of the weapon offences he was charged with being in possession of was a multi tool. I note that the evidence before the Court reveals that he was a bike rider and that it is pretty hard to maintain a bicycle without something like a multi tool. But anyway, he pleaded guilty to that offence. It is certainly not a matter I hold against him.

49. But overall, his record means he is not entitled to the leniency often given to first offenders.

50. Smoday gave evidence today. He told me about his time in custody, particularly during the COVID lockdown period. He spent nearly 5 and a half months locked in his cell. Dr Smith, who provided the report, discussed what being locked in a cell means. The community have to understand, that when locked down a prisoner has no access to light or the outside, no access to exercise, limited washing facilities and you have to eat in the same room as your toilet. You are either alone or you are with someone else, and you get no choice as to who you spend your time with.

51. These are matters that can and should be taken into account taken into account.

52. He has also had limited access to friends and family. He has had no personal visits the entire time he has been in custody.

53. In his evidence today Smoday told me about his time at Parklea gaol and the impact of COVID. He read a letter to me expressing his regret for the lifestyle he was leading at the time of the commission of the offences. He said that at the time he was wounded and vulnerable and living on the streets.

54. It is clear that he still cannot accept personal responsibility for his offending, but he is not to be punished for that. He does not get the benefit shown to some prisoners on sentence of remorse, or the benefits given for those who accept responsibility and plead guilty, but I cannot increase his sentence because he exercised a right to go to trial and maintain his innocence.

55. All the material before me, including his attempted explanations for disciplinary matters and the breakdown of his excellent work relationship with Corrections, indicates that he has significant problems accepting personal responsibility for his behaviour in even minor aspects of his life. This will have to be addressed before he gets parole and while he is on parole. If he continues to make excuses for his behaviour, it will hinder his rehabilitation.

56. Dr Smith provided some background material. There are reasons to query the accuracy of everything that was said because Dr Smith had trouble getting an accurate history from him. At times, as Dr Smith clearly documents, Smoday was not entirely rational in what he was saying.

57. In his expert opinion Dr Smith formed the view that it is possible, if not probable that he has transitioned from drug induced psychosis to schizophrenia. He says this is a common transition. He also makes a finding of a substance use disorder, this is evidence by Smoday’s increased usage (up to every day) and the significant harm caused by the drugs.

58. He also meets the criteria for complex trauma, given; his tumultuous early experience of sexual abuse in an institutional setting by a priest, his inability to have a safe, stable home environment and traumas involved with incarceration during the COVID restrictions, chronic substance abuse and homelessness. As Dr Smith said, all of these matters can have long term consequences.

59. Smoday was born locally in 1985. He was schooled until year 10. He was good at sport, surfing and BMX.

60. There is complaint of sexual abuse while at primary school. Eventually his schooling was curtailed. It appears he was suspended or expelled.

61. He started using alcohol and drugs while young and at times committed crimes against churches.

62. There were problems at the home, particularly with excessive discipline and he has not been able to settle, with long periods of homelessness. The Local Area Health report put before me indicates that he has regularly come to Shoalhaven Hospital for what appeared to be episodes of drug induced psychosis.

63. The Justice Health report, to which I have already alluded, notes that when he came into custody he was not in a good way. He had; swollen feet, skin infections, swollen hands, land loose nails. He was dishevelled, his appearance seemed older than his stated age. At times he was mumbling and was incoherent at times. He was a poor historian. He was hearing voices but they were not intrusive in nature.

64. The reports also note that at times he became aggressive and abusive when requests he made were not met. At various times he has seen the clinic and made urgent requests for psychological help and medication.

65. In a report dated 17 October 2021, it was recommended that would benefit from assistance from a psychologist for his anger, mood swings and psychosocial stresses. There is no evidence before me that he has received what was recommended. He certainly requires such assistance.

45. His work reports from the gaol note mental health issues. They also note how well he did when he was given work in the metal shop. There were excellent reports as to his behaviour and his industry. But in February 2023, at about the same time as this matter was originally before this Court for sentence, there appears to have been a downturn in his behaviour. A note states that he does not like to be told no and that he displayed disruptive, threatening, and abusive behaviour, and such was his behaviour that he was terminated in terms of his work.

46. That does seem to reflect ongoing and underlying problems because there is no evidence he was using illicit drugs at the time. Although he did refuse a drug test, I accept his explanation, at least on the balance. But in evidence, he went off on a tangent, making excuses. He seems to make excuses every time he is challenged - that is the history before me.

47. Dr Smith recommends a number of sensible propositions that would improve his prospects for the future:

1. that he abstains from using drugs and alcohol, as it is clear he has improved with enforced abstinence;

2. that he gets proper medication for his underlying conditions, including antipsychotic medication;

3. that he gets treatment for various underlying complex traumas, and that is still to occur;

4. that on release he would be assisted by stable housing; and

5. that he gets occupational and educational support.

69. I trust that that help will be provided to him so that when released to parole he is not a danger to community safety.

70. I note that when I come to assess matters that the fact that people were affected by drugs when they committed the offences, that seems likely from what I saw on the recordings, but that cannot and does not excuse their crimes, that that bland statement must be taken in context. The fact of addiction and its consequences, how it came about, what is to be done, all have to be taken into account as relevant factors on sentencing and I will attempt to do so.

71. Although I have not gone into all the details of the matters revealed in Dr Smith's report, I have taken them into account.

72. On balance, the history seems consistent with Smoday being the victim of child sexual assault in an institutional setting, and I do not underestimate the profound and highly detrimental impacts on a child being so assaulted, I have to take into account those matters regularly when I come to sentence those who offend against children, and a background such as this, and the other traumatic events noted, including relationships with his family, are always relevant and given proper effect.

73. At the time of offending, I am prepared to accept that he was mentally unwell and that his moods varied, as is displayed in the descriptions I have received of the body worn video made by police about the time of the offending, and the contrast with the Electronically Recorded Interview with police after his arrest.

74. His drug and alcohol abuse had its genesis in his background. He has long-term underlying mental conditions that can be treated. They do ameliorate his moral culpability, although I do not double count in his favour the various matters that can result in that conclusion. At times his mental condition has made his time in custody more onerous, as is evidenced by the material before me, and it is clear that when there are flare ups, he does not act in his own best interest by backing off and accepting he might be wrong.

75. That may mean that there should be more understanding by members of the community in terms of the principles of general deterrence, that is by the punishment inflicted, the need to send to others the message that they cannot behave as they did, but there is still a need here for what is called specific deterrence. Given his longstanding and persistent offending behaviour there is a need for protection of the community to be considered and a need to ensure by the time in custody and the punishment inflicted, that the offender focus on taking up assistance inside and outside of custody, particularly while on parole.

76. The submissions of Ms Hughes and Mr Woodbury were presented in comprehensive written form to which both spoke. I could detect no significant difference in matters of legal principle and, where there were differences, I sought to address them in this judgment.

Synthesis

77. Synthesising all those matters. Smoday committed three serious offences against those providing services to the community, and another who was a customer at the service station. Although he did not physically harm them or others present, the threats he made were real and each victim may have felt that they could be seriously hurt. Although the property taken was relatively insignificant, it is not what he took, but it is what he did and how he utilised the improvised weapon that Courts, on behalf of the community, treat with great seriousness.

78. Courts must, through the severity of the sentence imposed recognise the

79. harm done to the victims and the community by armed robbery offences. At the same time the Court has to have regard to Smoday's complex history, which is longstanding and has been substantially untreated.

80. He will not be punished for being homeless, he will not be punished for being mentally ill, he will not be punished for being addicted to drugs and alcohol, he will not be punished for his longstanding problems, but he must be punished for what he did in accordance with the jury verdict.

81. His conditions are longstanding, and he has not engaged in any sustained treatment. Without sustained treatment or assistance, he will have little insight as to why he offended and what caused it. If he is released without support, he will, as he has done many times before, reoffend. He must be given that support but that is a matter for the State Parole Authority.

82. The minimum time he spends in custody must properly reflect the seriousness of the crimes he committed but he is entitled to a degree of leniency and understanding. I have allowed a considerable portion of the sentence to be served on parole, but, and it is an important ‘but,’ he will not be released unless, and until, the State Parole Authority is satisfied that community safety can be protected. It is in his interests and the community interest that he be given; the assistance he needs, the treatment he needs and the medication he needs. It is in his interest to engage with the treatment providers. If he does not, he may serve the full sentence.

Orders

83. The sentence will date from 22 July 2021.

84. In relation to Count 3, the larceny, I will deal with that matter pursuant to s 10A of the Crimes (Sentencing Procedure) Act. It is inexpedient given the aggregate sentence I will impose that there be further punishment for that matter. This sentence is not part of the aggregate sentence.

85. In relation to each of Counts 1, 2 and 4, I indicate a sentence of 3 years and 4 months' imprisonment.

86. There will be an aggregate sentence in this matter. The term of the sentence is 5 years and 4 months. The non-parole period is 3 years and 2 months commencing on 22 July 2021, making Smoday eligible for consideration for release to parole on 21 September 2024.

87. The parole period and balance of that sentence of 2 years and 2 months will commence on 22 September 2024 and the total sentence will expire on 21 November 2026.

88. I repeat; aggregate sentence - 5 years, 4 months, minimum period in custody - 3 years, 2 months. Eligible for consideration for parole by the State Parole Authority on 21 September 2024, balance 2 years, 2 months reflecting a finding of special circumstances. Total sentence expiring 21 November 2026.

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Amendments

02 August 2023 - Typographical error corrected

03 August 2023 - Typographical errors corrected

Decision last updated: 03 August 2023