Smith v R

[2013] NSWCCA 209

Court of Criminal Appeal

New South Wales

Case Title:	Andrew Smith v R
Medium Neutral Citation:	[2013] NSWCCA 209
Hearing Date(s):	8 August 2013
Decision Date:	09 September 2013
Before:	Leeming JA at [1] R A Hulme J at [2] Button J at [73]
Decision:	Leave to appeal granted. Appeal dismissed.
Catchwords:	CRIMINAL APPEAL - sentence appeal - aggravated break and enter and commit serious indictable offence of intimidation - context of domestic violence considered an aggravating feature on sentence - no double counting despite offence of intimidation arising from certain features of domestic relationship - lack of planning or premeditation not significant mitigating feature - significance of committing offence while on conditional liberty - sentence not manifestly excessive
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Domestic and Personal) Violence Act 2007 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Bolt v R [2012] NSWCCA 50 Hili v The Queen [2010] HCA 45; 242 CLR 520 House v The King (1936) 55 CLR 499 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mulato v R [2006] NSWCCA 282 Palijan v R [2010] NSWCCA 142 R v Ball [2013] NSWCCA 126 R v Eckermann [2013] NSWCCA 188 R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 R v Henry (1999) 46 NSWLR 346 Shaw v R [2008] NSWCCA 58 Waters v R [2007] NSWCCA 219 Zreika v R [2012] NSWCCA 44 ZZ v R [2013] NSWCCA 83
Category:	Principal judgment
Parties:	Andrew Smith (Applicant) Regina (Respondent)
Representation
- Counsel:	Counsel: Ms H Cox (Applicant) Ms S Dowling (Crown)
- Solicitors:	Solicitors: Aboriginal Legal Service (NSW/ACT) Ltd Solicitor for Public Prosecutions
File Number(s):	2011/399231
Decision Under Appeal
- Court / Tribunal:	District Court
- Before:	Marien SC DCJ
- Date of Decision:	12 September 2012
- Court File Number(s):	2011/399231

JUDGMENT

1. LEEMING JA: I agree with R A Hulme J.

2. R A HULME J: Andrew Smith ("the applicant") seeks leave to appeal against the sentence imposed by his Honour Judge Marien SC in the District Court at Griffith on 12 September 2012.

3. The applicant pleaded guilty in the Local Court to one count of aggravated breaking and entering a dwelling house and committing a serious indictable offence, namely, intimidation. The circumstance of aggravation pleaded was that he knew that persons were present within the dwelling house.

4. The offence was in contravention of s 112(2) of the Crimes Act 1900 (NSW) which carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 5 years under Div 1A Pt 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The maximum penalty for an offence of intimidation under s 13(1) of the Crimes (Domestic and Personal) Violence Act 2007 (NSW) is imprisonment for 5 years and/or a fine of 50 penalty units.

5. His Honour sentenced the applicant to imprisonment for 4 years 2 months comprised of a non-parole period of 2 years 9 months commencing 10 December 2011 and expiring 9 September 2014, with a balance of term of 1 year 5 months expiring 9 February 2016. This sentence was the product of his Honour allowing for a reduction of 25 per cent on account of the utilitarian value of the applicant's plea of guilty. A finding of special circumstances (s 44(2) of the Crimes (Sentencing Procedure) Act) was made arising from the applicant's need for extended supervision on parole.

6. At the applicant's request, his Honour took into account two further offences on a Form 1, namely damaging property and contravening an apprehended domestic violence order. Those offences arose out of the same circumstances that gave rise to the principal offence.

7. His Honour also dealt with breaches of two good behaviour bonds (s 9 Crimes (Sentencing Procedure) Act). The bonds had been entered at the Balranald Local Court on 7 December 2011 for two offences of common assault (s 61 Crimes Act), both committed against the same victim who was also the victim of the s 112(2) offence. In respect of each matter his Honour imposed a fixed term of imprisonment for 10 months commencing 10 December 2011 and expiring 9 October 2012, to be served wholly concurrently with the sentence for the principal offence.

Facts

1. There were agreed facts before the sentencing judge from which I have derived the following.

2. The applicant and the complainant, Ms Alyce Shalliker, were in a domestic relationship and lived at a home in Balranald. The relationship broke down in September 2011. Ms Shalliker continued to live at the home. Mr Bradley Brumby moved in as a housemate but in around November 2011, began a relationship with Ms Shalliker.

3. At about 5.15am on 10 December 2011, Ms Shalliker and Mr Brumby were asleep in the master bedroom. They were woken by noises from the outside and got up and went to the lounge room. They saw the applicant attempting to enter through a window. They successfully prevented him doing so. The applicant walked away and Ms Shalliker closed and locked the window. Mr Brumby left the home via the back door to summon help from Ms Shalliker's father who lived nearby.

4. Meanwhile, Ms Shalliker heard the front door handle being turned and then up to ten loud bangs before the front door was flung open. She barricaded herself behind the door from the verandah to the lounge room and braced her legs against the architrave of the bedroom door. She felt the door being kicked from the opposite side and heard the applicant yelling, "where is he, I'm gonna get him".

5. The applicant kicked the internal door with such force that parts of the top half of it caved in on top of Ms Shalliker with a piece of wood hitting her on the top of the head. As a result of her bracing herself against the door the applicant was momentarily stuck and he swung at the kitchen door, punching two holes in it. (The foregoing is literally what the agreed facts describe. The layout of the house is difficult to picture and how the applicant gained entry to the house is unclear.)

6. The applicant broke off the top half of that door and entered the kitchen with Ms Shalliker following him. He said, "you're a slut" and hit her to the back of the head. He then said, "I am going to stab you". Ms Shalliker saw a large knife in the kitchen sink and ran straight out the back door, up the driveway and hid next door.

7. From that position Ms Shalliker heard banging and about five minutes later saw the applicant walking away. She returned to her home and saw that there was damage to two doors, the television was broken and her computer had been thrown on the floor. The fridge had been upended, a glass table was also upended and the drawers from her bedroom furniture were opened and some broken.

8. Mr Brumby returned to the home and saw that a utility parked in the driveway belonging to Ms Shalliker's grandfather had a smashed window. This is the offence of damaging property that was on the Form 1.

9. Police were called and when they arrived they saw the damage to the utility and to various items inside the home. On 10 December 2011, the applicant was arrested and taken to the Balranald police station. There he told relatives in the presence of a police officer:

   I fucked up, I smashed the house up, you should have seen the cunt run when I put my head inside the house, he had sparks coming off his thongs, the dog cunt. I'll plead guilty, I fucked up so I'll plead guilty. What am I supposed to do when the cunt has been running around behind my back for the past 9 months with that other cunt.

10. He then turned to the officer who was present and said:

    I was gunna run from you's but I thought I would face up to what I have done, because I'm remorseful.

Breach of bond offences

1. I have earlier mentioned that the judge also dealt with the breach of two good behaviour bonds entered at the Balranald Local Court on 7 December 2011 in respect of offences of assault. The facts pertaining to those offences were not provided to the Court but they were summarised in the written submissions for the applicant.

2. The first of these assaults occurred on 26 August 2011 when the applicant arrived home at about 11.30pm and argued with Ms Shalliker. In the course of this he shook her and she sustained a blow to the left eye causing it to blacken.

3. The second offence occurred on 3 September 2011 when the applicant and Ms Shalliker again argued. In the course of this the complainant referred to the applicant in a derogatory and offensive fashion and in response he pushed her and she pushed him back. They then wrestled on the floor. He took hold of her but she managed to extricate herself and escape. It would seem that the breakdown in the relationship occurred at that stage and an Apprehended Violence Order, at least on an interim basis, was put in place.

Subjective circumstances

1. The applicant was born in 1973 and so he was aged 38 at the time of the offences.

2. The applicant's criminal history commenced with matters in a Children's Court in 1987. As an adult he has been dealt with on many occasions in the Magistrates' Court of Victoria and the Local Court of New South Wales. The record contains about 15 entries for offences of violence and there are also entries for damaging property and for firearms and related offences. He has been imprisoned on a number of occasions.

3. The applicant derived from an Aboriginal family. He was the youngest of three children born in Barmedman. The family lived on a farm. His parents separated when he was aged four. The reason for his parents' separation was his father's alcohol abuse.

4. His mother moved the family to Melbourne where they remained until he was aged six. At that time she remarried and the family moved to Wagga Wagga.

5. The applicant is said to have been traumatised after his mother's remarriage and the birth of his half-brother. He required counselling over several months. His mother indicated that his literacy problems commenced at that time. The applicant gave evidence before the sentencing judge that he had difficulties learning to read at school. He left school being unable to read or write and remained illiterate.

6. The applicant left his mother's home and school at the age of 14 and went to live with his natural father. He worked with him doing fencing, stock work and shearing. He was taught to fish and hunt. He continued to pursue these activities as a hobby in his adult years.

7. The applicant played football when a teenager and occasionally was paid for playing. He gave evidence that at the age of about 17 or 18 he undertook a horse training course which was offered to Aboriginal children. The course involved doing stock work as well as training race horses. He trained a number of horses to sell at rodeos. He received a certificate upon completion. Thereafter he obtained work in Alice Springs, doing stock work and training race horses. A reference was tendered about the training course and it was to the effect that the applicant had excelled in every category. The author of the reference, Ms Mary Newcombe, indicated that she had maintained contact with the applicant and his mother and she clearly had a high regard for his ability.

8. The applicant's mother and stepfather separated when he was aged 29. He maintained a good relationship with both of them.

9. The applicant's evidence included that he had been in steady employment, mostly as a shearer. At the time of the offences he was working with a shearing contractor who had told the author of a Pre-Sentence Report that the applicant had an excellent work ethic. The employer was willing to re-employ him, provided that he addressed his problem with excessive alcohol consumption.

10. The applicant had a history of drug and alcohol dependence and what the author of the Pre-Sentence Report described as "associated criminal behaviour". He commenced smoking cannabis at the age of 13 and was dependent upon this substance until recent years when he reduced his consumption to a modest level.

11. The Pre-Sentence Report referred to the applicant having experienced two significant relationships. He had two children in the first relationship who had until recently been in the care of their mother, but are now in foster care. The other significant relationship was with the complainant. That relationship had lasted for three years. The applicant gave evidence that they had a home together and he had thought the relationship was going well. He had been travelling a lot with his work and had been told by friends that the complainant had been unfaithful to him. He confronted the complainant about it and said that she "broke down crying and saying she didn't want to hurt me".

12. The applicant gave evidence about the events leading up to the offence of 10 December 2011. He said that he finished work at about 6pm and had a few beers with the owner of the property where he had been working. He then went to a hotel and then home. He had a shower and returned to the hotel where he remained until it closed. He said that he was very drunk and that after the hotel closed he went to a friend's place and continued drinking. He said that he could not remember much after that.

13. The applicant's evidence was that he would not normally get "that drunk" and that he was "stressed out" because he had been in court a few days before and that he was "broken hearted" about the break-up of his relationship with Ms Shalliker. He acknowledged, however, that Ms Shalliker would have felt worse than him and would have been very scared by his actions. He accepted responsibility for the offence from the very beginning from the time the police had spoken to him. He gave evidence of his remorse.

14. The applicant was held in gaol since his arrest. During that time he had completed a drug and alcohol prevention program for which he received a certificate. He also placed before the court a letter which he had dictated to someone in gaol. In that letter he said that he had done a lot of thinking in the time that he had been in gaol about what he had done that was wrong. He wanted to get back to work to support his mother and his children. He was particularly anxious to send his children away to college to get them a good education.

15. The applicant also gave evidence that he accepted that the relationship with Ms Shalliker was over.

Ground 1: His Honour erred in finding as a specific feature of aggravation that "this was an offence constituting domestic violence"

1. Counsel for the applicant referred to a number of aspects of the approach taken by the sentencing judge to the assessment of the objective seriousness of the offence.

2. In the remarks on sentence the judge referred to the following matters in this context:

   ·The offence involved the forceful invasion of the complainant's house by the applicant in terrifying circumstances.

   ·The offender destroyed property and assaulted the complainant and threatened to stab her, causing her to flee the home and hide next-door.

   ·The circumstance of aggravation pleaded was that the applicant knew that there were persons present within the home (s 105A(1)(f)).

   ·A further matter of aggravation was that at the time of the offence the applicant used corporal violence (s 105A(1)(c)) in hitting Ms Shalliker to the back of the head after threatening her.

   ·The applicant invaded the home of the complainant.

   ·The offence was committed in the context of domestic violence.

3. The contention was that the judge erred by taking into account "as a separate feature of aggravation which increased the objective seriousness of the offence" that the offence was one of domestic violence. It was submitted that this involved double counting because the fact of the offence involving domestic violence was already reflected in a number of features.

4. The first matter relied upon was that the serious indictable offence committed consequent upon the break and enter was one of intimidation contrary to s 13(1) of the Crimes (Domestic and Personal) Violence Act. However, in relation to that I accept the Crown's submission which was to the effect that the offence of intimidation is not limited to conduct in a domestic violence context. Where it occurs in a domestic violence context there is an added dimension to the seriousness of the matter.

5. The second feature was that the judge took into account an offence on the Form 1 of contravening an apprehended domestic violence order. Again, I do not regard that as involving double counting. Contravening an apprehended domestic violence order does not necessarily involve the commission of an offence in the nature of domestic violence. There are other, non-violent, ways in which such an order can be contravened. In any event, I know of no prohibition upon taking into account the circumstances underpinning an offence taken into account on a Form 1 when assessing the objective seriousness of the primary offence. (No authority was cited.) Obviously when that is done, care is needed in evaluating the extent to which the sentence for the primary offence might be increased by virtue of there being another offence taken into account.

6. It should be borne in mind that it was at the applicant's request that the judge took into account the contravention of the ADVO when sentencing for the principal offence. No complaint is raised about the manner in which his Honour did so; nor is it contended that the influence it had upon the assessment of sentence for the principal offence was in any way erroneous.

7. The third feature was said to be that "the motivation for the applicant's entrance to the premises was the breakdown of the domestic relationship and its sequelae". The circumstance of aggravation pleaded in the charge was that the applicant knew that there were persons inside. As I understand the submission, it was contended that having regard to both matters was, in effect, to have regard to the same thing.

8. I do not accept that there was double counting in this respect. The circumstance of aggravation of knowing a person is inside the premises into which an offender breaks and enters is not limited to domestic violence situations. The domestic violence aspect was an additional element that operated in aggravation in this case.

9. Finally it was submitted that the judge erred by taking into account as an aggravating feature that the offence was committed in the victim's home, which was an element of the offence. The problem for the applicant in this respect is that in the written submissions provided by his then legal representative to the sentencing judge, it was conceded on the authority of this Court's judgment in Palijan v R [2010] NSWCCA 142 at [21]-[22] that this was an additional aggravating feature.

10. In Palijan the offender broke into the home of a woman with whom he had previously been in a relationship. He was sentenced for an offence of break, enter and commit serious indictable offence, namely intimidation, in circumstances of aggravation, namely the infliction of corporal violence. There was also an offence of assault occasioning actual bodily harm. The first ground of appeal was that the judge erred when finding that the fact that the home broken into was the victim's home was an aggravating feature.

11. Barr AJ, with whom McClellan CJ at CL and Hislop J agreed, held that the element of breaking and entering in s 112(2) of the Crimes Act does not require that the premises be the home of the victim. Regard was had to s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act.

12. The concession by the applicant's representative in the court below was appropriate and no error is disclosed in the judge taking this matter into account, along with all of the other matters he mentioned, in his assessment of the seriousness of the offence.

13. I am not persuaded that there was any double counting in any of the respects contended. I would not uphold Ground 1.

Ground 2: His Honour erred in his assessment of the objective seriousness of the offence

1. The submissions for the applicant referred to two features to support the proposition that his Honour's assessment of the objective seriousness of the offence was erroneous. They were that the offence was not planned or premeditated and that the offence was committed under the combined impact of emotional instability and excessive alcohol consumption.

2. The first thing to be observed is that the assessment of the objective seriousness of an offence is uniquely a matter for the discretion of a sentencing judge, a matter with which this court will not lightly interfere. For example, in Mulato v R [2006] NSWCCA 282 at [37] Spigelman CJ said:

   Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion.

3. Simpson J "emphatically" agreed and added (at [46]):

   The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance.

4. The complaint about there being no planning or premeditation was that the judge erred by not making any reference to it. Counsel for the applicant pointed to the fact that the solicitor for the applicant submitted, and the solicitor for the respondent conceded, that this mitigating factor was present. It was also submitted that the failure to take this matter into account supported the complaint of erroneous assessment of objective seriousness.

5. The applicant relied upon Shaw v R [2008] NSWCCA 58 which concerned sentencing for a broadly similar offence against s 112(2). The sentencing judge found that the offence was "high in the level of seriousness under the section". The Crown had conceded that the offence was neither planned nor premeditated. Fullerton J (McClellan CJ at CL and Grove J agreeing) held (at [37]) that the assessment was erroneous and that the finding should have been one of "middle of the range of offending of its kind". One of a number of matters that led her Honour to that conclusion was (at [36]):

   Were the applicant to have planned a forced entry, armed himself for that purpose, and then used the tool as a weapon to inflict injury, the offence would properly be categorized in that way [that is, as constituting a high level of objective seriousness].

6. It was submitted that "in the same way" the applicant's case did not have such features and therefore it was wrong for the judge to have found that the offence "fell in the 'spectrum at a high level'".

7. I accept that the judge did say that, "the objective seriousness of the offence does fall in the spectrum at a high level" but that was in the context of dealing with a submission that was made on the applicant's behalf that the offence fell, "towards the lower end of the scale but in the lower portion of that lower one third on the scale". His Honour went on to say:

   I believe it falls above the lower one-third on the scale. But I do not find that it is an offence falling in the higher end of the range of objective seriousness. (AB 29)

8. In my view, all his Honour was intending to convey was that the objective seriousness was at a higher level than the characterisation advanced on the applicant's behalf. Such a finding was open to his Honour in all the circumstances.

9. In any event, I do not think that there was anything significant in the judge not mentioning the submission (and concession) that there was no planning or premeditation. It is to be noted that the offence was committed at about 5.15 in the morning. Clearly there must have been some forethought by the applicant in going around to the complainant's home. And in any event, offences of this nature are very often committed without any significant planning or premeditation. It was not a matter that reduced the seriousness of the applicant's offence to any material degree.

10. The submission in support of the second matter was that whilst intoxication itself is not a reason to mitigate the seriousness of an offence; it is a matter that may be taken into account if it indicates that the offence was impulsive or unplanned or that the offender's capacity to exercise judgment was impaired. In this regard reliance was placed upon what was said in R v Henry (1999) 46 NSWLR 346 per Wood CJ at CL at [397]-[398] and in Waters v R [2007] NSWCCA 219 per James J at [38]. The problem in relation to this submission is that it was not one raised with the sentencing judge. In my view it is inappropriate to raise it for the first time on the hearing of this application: see for example Zreika v R [2012] NSWCCA 44.

11. In any event, the applicant's intoxication did nothing to assist him in the assessment of sentence. The judge said, "it is clear from his record that he has a lengthy history of serious alcohol abuse in the context of offending". It did not cause him to act in a way that was "out of character". Unless that was established (the applicant bore the onus of proof and did not seek to discharge it) it did nothing other than serve as an explanation for the applicant's conduct: ZZ v R [2013] NSWCCA 83 at [110]-[112] per Johnson J.

12. The asserted errors in the exercise of the judge's assessment of the level of objective seriousness of the offence have not been established. I would not uphold this ground.

Ground 3: The sentence imposed was manifestly excessive

1. In support of this ground it was submitted that his Honour erred in the sense referred to in House v The King (1936) 55 CLR 499.

2. Where patent error is not established, as I believe is the case in relation to the previous grounds, the question is whether the sentence imposed was "unreasonable or plainly unjust": Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ.

3. Reference was made by the applicant's counsel to the significant difficulties in life that he had experienced from an early age. These have been referred to in the earlier review of the applicant's subjective case.

4. There was also reference to the finding by the judge that the applicant was remorseful and his acceptance of the need for the applicant to enter into a residential alcohol rehabilitation program. Reference is also made to the applicant having undertaken courses whilst in custody. It was submitted that although no specific finding was made, all of the circumstances supported the proposition that the applicant had good prospects of rehabilitation.

5. Reference was also made to the sentencing statistics maintained by the Judicial Commission of New South Wales for offences committed against s 112(2) and also to a table of comparable cases. Two of the cases in the table were specifically mentioned in oral argument: Shaw, supra, and Bolt v R [2012] NSWCCA 50. It was submitted that both of those cases indicated more serious violence of a domestic violence nature with other aggravating features and yet the ultimate sentences were in the same order or slightly less than the sentence imposed upon the applicant. This, it was submitted, was indicative of the sentences being manifestly excessive.

6. I do not find the statistics to be particularly helpful. There is a substantial number of cases in the database but the range of offending that can be found in offences against s 112(2) is very wide and, of course, the statistics do not disclose anything about the circumstances of the individual offences. The limitations of the use of sentencing statistics were stated in Hili v The Queen [2010] HCA 45; 242 CLR 520 at [54]-[55]. I do accept however that in the broad range of sentences that have been imposed, the sentence passed upon the applicant was towards the upper end of the range.

7. The "comparable" cases to which attention was specifically invited do not support the applicant's proposition. They are but two cases of many. It is difficult to support a proposition that a sentence is manifestly excessive by comparison with so few other cases.

8. The written submissions for the Crown included the following, at [40]-[41]:

   As his Honour noted, this offence concerned the violent invasion of the complainant's home in the early hours of the morning. The applicant destroyed and vandalised property and assaulted the complainant. He threatened to stab her. This attack took place with a context of previous domestic violence perpetrated by the applicant on the complainant, in breach of an apprehended violence order and at a time when he was subject to good behaviour bonds.

   Considerations of personal and general deterrence were of significance in the sentencing process, as was the protection of the community. The applicant was given the benefit of total concurrency for the sentences imposed for the breaches of the [good behaviour bonds].

9. Those submissions are amply supported by authorities concerned with sentencing for offences of a domestic violence nature: see, for example, R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 at [65]-[88]; Shaw, supra, at [24]; R v Ball [2013] NSWCCA 126 at [98]; and R v Eckermann [2013] NSWCCA 188 at [54]-[55].

10. Deterrence deserved particular attention in the assessment of sentence in this case. The offence was committed only three days after the applicant entered bonds to be of good behaviour for two previous assaults upon the same victim. And the applicant had a significant history of violent offending.

11. In my view the sentence passed upon the applicant was a stern one. But having regard to all of the features of the case I am not persuaded that it was beyond the range of the discretion of such an experienced sentencing judge.

Orders

1. I propose the following orders.

   1. Leave to appeal be granted.
   2. Appeal dismissed.

   
   

2. BUTTON J: I agree with R A Hulme J.

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