Smith v R

[2011] NSWCCA 209

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Dwayne William SMITH v R [2011] NSWCCA 209
Hearing dates:	21 April 2011
Decision date:	09 September 2011
Jurisdiction:	Common Law - Criminal
Before:	Basten JA at [1], RS Hulme J at [2] & Hidden J at [3]
Decision:	Leave to appeal granted, appeal allowed, sentence in District Court quashed. Taking into account the offence on the Form 1, applicant re-sentenced to a non-parole period of 3 years, commencing on 17 December 2009 and expiring on 16 December 2012, and a balance of term of 1 year and 3 months, commencing on 17 December 2012 and expiring on 16 March 2014.
Catchwords:	CRIMINAL LAW - application for leave to appeal against sentence - break and enter with intent to commit serious indictable offence in circumstances of special aggravation - common assault on Form 1 - applicant motivated by revenge for offensive treatment of his mother - whether sentencing judge should have found special circumstances - adequacy of discount for plea of guilty - whether motive properly taken into account - sentence reduced
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bou-Antoun v Regina [2008] NSWCCA 1 R v Simpson [2001] NSWCCA 534, 53 NSWLR 704 R v Newman and Simpson [2004] NSWCCA 102, 145 A Crim R 361 R v Borkowski [2009] NSWCCA 102, 195 A Crim R 1 R v Swan [2006] NSWCCA 47 R v Craddock [2004] VSC 397
Category:	Principal judgment
Parties:	Dwayne William Smith (applicant) Regina (respondent)
Representation:	Counsel W P Lowe (applicant) J Pickering (respondent) Solicitors M Rumore (applicant) S Kavanagh - Solicitor for Public Prosecutions (respondent)
File Number(s):	2009/9222
Decision under appeal	Date of Decision: 2010-02-19 00:00:00 Before: Colefax SC DCJ File Number(s): 2009/9222

Judgment

1. BASTEN JA: I agree with Hidden J.

1. RS HULME J: I agree with Hidden J.

1. HIDDEN J: The applicant, Dwayne William Smith, pleaded guilty in the District Court to a charge of break and enter with intent to commit a serious indictable offence in circumstances of special aggravation, an offence under s 113(3) of the Crimes Act 1900 which carries a maximum sentence of 20 years imprisonment. He also asked the sentencing judge to take into account on a Form 1 an offence of common assault. He was sentenced, in round figures, to imprisonment for 6 years and 9 months with a non-parole period of 5 years, commencing on 17 December 2009, when he was taken into custody at the conclusion of the proceedings on sentence.

1. In fact, the sentence imposed was imprisonment for 6 years, 9 months and 18 days with a non-parole period of 5 years, 1 month and 5 days. It would seem that that somewhat unusual head sentence was the result of his Honour's applying to a starting point of 8 years the discount of 15% which he allowed for the applicant's plea of guilty. The equally unusual non-parole period was the result of the application of the statutory proportion to the head sentence. Of course, it would have been open to his Honour to have rounded off the figure for the head sentence after the 15% discount, and that, in turn, would have simplified the process of arriving at the appropriate non-parole period. As Grove J observed in Bou-Antoun v Regina [2008] NSWCCA 1 at [33], there was no obligation on his Honour "to undertake sentencing in a precise mathematical manner",

1. The applicant seeks leave to appeal against this sentence.

Facts

1. The facts were set out in his Honour's remarks on sentence as follows:

"In November 2008 the offender's mother, Mrs Terri Taylor, was employed at the Woolworth's Supermarket at Emerton. One of Mrs Taylor's co-workers was Mr Nathan Keaton who at that time was aged 24 years.

On 9 November 2008 at about 1.30am Mr Keaton made the first of a number of telephone calls that morning to Mrs Taylor's landline service and mobile phone. Mr Keaton thought Mrs Taylor did not and would not know who was sending these calls.

The precise number of telephone calls in not in evidence but there may have been appropriately (sic) half a dozen. The contents of the calls were highly offensive. They mostly involved offers by the caller to participate in explicit sexual activity with Mrs Taylor. In one however Mr Keaton said, "I killed your father" which Mrs Taylor took to be a reference to her husband, who had died two years previously.

Mrs Taylor was upset by these phone calls so she contacted one of her sons, David Taylor, the offender's brother. David Taylor went to his mother's house and in circumstances not in evidence was able to establish that the person making the offensive telephone calls was Nathan Keaton.

At about 2am David Taylor then contacted the offender and told him about the telephone calls. At about 8.45am on 9 November 2008 Mrs Taylor and David Taylor drove to the offender's house. The three of them then drove to Mr Keaton's home at Bidwell. The offender took with him a piece of timber sixty centimetres in length and three to four centimetres in diameter.

Unlike Mrs Taylor and David Taylor the offender did not know Nathan Keaton but either Mrs Taylor or David Taylor or both gave him a description of Mr Keaton.

The driver of the motor vehicle stopped it a short distance from Mr Keaton's home. The offender got out of the motor vehicle and walked to Mr Keaton's home armed with the piece of timber.

The front of Mr Keaton's home was secured by a closed but not locked screen door and a locked front door. The offender opened the screen door in an orthodox fashion and then kicked in the front door, causing the wooden surrounds to splinter. The offender then entered the premises with the intention of assaulting Mr Keaton.

Mr Keaton did not live alone in the Bidwell premises. He shared the premises with his brother, Bradley, aged sixteen years, and three young women. Without intending any disrespect to them I shall for convenience and ease of reference hereafter refer to the two Keaton brothers simply by their given names.

The offender first entered a bedroom in which two of the young women were asleep. He left the room apparently without disturbing the occupants.

The offender next entered the bedroom in which Bradley was sleeping. Bradley suffered from cerebral palsy with right-sided weakness. The offender wrongly assumed that the person sleeping was Nathan. The offender proceeded to strike Bradley ten times with the wooden object. He was repeatedly beaten to various parts of his body.

Bradley adopted a foetal position to try to protect himself, particularly his right arm. He rolled out of the bed and onto the floor where the beating continued.

During the offender's attack on Bradley Nathan came into the room. When Nathan challenged the offender, the offender grabbed Nathan by the throat and pushed him against a wall and told him to go to his room or he, the offender, would kill him. At the same time the offender demanded to know from Nathan if he knew 'Jason Taylor'. I have not been told the significance of that name; however I assume it was the name of Mrs Taylor's deceased husband.

After Nathan denied knowing anyone of that name the offender released his grip on him and he then ran to his room and barricaded the door. In the meantime one of the young female occupants telephoned triple zero. The offender then went to Nathan's room and kicked the door open and again demanded to know if Nathan knew Jason Taylor. At the same time the offender raised the wooden object over Nathan's head.

After Nathan repeatedly denied knowing Jason Taylor the offender left the premises.

Bradley was taken by ambulance to the Nepean Hospital. He gave a history of injury to his forehead, left arm, left leg and back pain. Because of his cerebral palsy a CT scan of Bradley's head was performed. The scan showed a small right front subgaleal haematoma, that is bleeding inside the soft tissues. There was a laceration to his right forehead through all layers of skin and soft tissues. It was eight centimetres in length and required nine sutures. X-rays of Bradley's limbs did not reveal any fractures. He did require morphine to control his pain. He was discharged from the Emergency department of the hospital to the care of his general practitioner.

There is no evidence of any ongoing physical or psychological problems for Bradley. However as the violent attack was initiated without warning and while Bradley was asleep in his own home it must have been a terrifying experience."

1. It is in the light of these facts that the charge to which the applicant pleaded guilty must be understood. It was in these terms:

"On 9 November 2008 at Bidwell in the State of New South Wales, did break and enter the dwelling house of Bradley Keaton ... with intent to commit a serious indictable offence namely, to assault Nathan Keaton and occasion to him actual bodily harm in circumstances of aggravation, namely being armed with an offensive weapon, in circumstances of special aggravation, namely at the time of the offence he did wound Bradley Keaton."

The charge of common assault taken into account on the Form 1 arose from the applicant's action in seizing Nathan Keaton by the throat and pushing him against the wall. He was arrested later the same day and, when interviewed by police, made full admissions about the matter.

1. His Honour assessed the offence as falling at the mid-range of objective seriousness, notwithstanding what he described as the "entirely misguided motive underpinning it". He said that that motive underscored the importance of considerations of deterrence, general and specific. As he put it, the courts could not be seen "as endorsing people taking the law into their own hands". He noted the time lapse between the applicant receiving the call from his brother at 2.00am and his being picked up by his brother and mother at 8.45am. He saw this as indicative "of a calculated and planned reaction to the disgraceful conduct of Nathan Keaton," rather than a spontaneous response.

1. For her role in the incident, the applicant's mother pleaded guilty in the Local Court to being an accessory after the fact to assault occasioning actual bodily harm. She was placed on a 2 year good behaviour bond. The remarks on sentence of the magistrate who dealt with her are not available, and the factual basis of her plea is unknown.

Subjective case

1. The applicant was 27 years old at the time of the offences, and is now 30. He has a short criminal history between 2000 and 2004, comprising offences of dishonesty, drug offences and traffic offences. He had previously been sentenced to imprisonment on two occasions, one of them a term of 3 years with a non-parole period of 15 months for demanding property with menaces.

1. He left school after obtaining his school certificate and had been in fairly consistent employment, mainly as a labourer. He had been in a relationship with his partner for 5 years. He had had a drug habit, mainly the abuse of cannabis, but had been free of that for some years. He gave evidence in the sentence proceedings that he had given up cannabis after meeting his partner, and it seems that it was the combination of those factors which enabled him to avoid further conflict with the law between 2004 and the present offence. However, he acknowledged having an ongoing problem with alcohol and with anger management.

1. His Honour received into evidence a psychological assessment of the applicant and a pre-sentence report. Both reports noted his need to address issues of alcohol abuse and anger management, and the psychological report also recommended treatment for symptoms of depression and anxiety. The applicant expressed remorse for his crime to the psychologist and to the author of the pre-sentence report, and he did so briefly in his evidence. However, what he said to the Probation and Parole officer indicated a lack of insight into the gravity of his crime. She noted that he expressed "genuine remorse for the pain and suffering he inflicted on the victim," but he also stated that "his only regret was the fact that the victim had nothing to do with the phone calls." His Honour was not satisfied that there was "real remorse" on his part.

1. His Honour found that there were no special circumstances justifying a departure from the statutory proportion between sentence and non-parole period. As I have said, he discounted the sentence by 15% in recognition of the applicant's plea of guilty.

The application

1. Counsel for the applicant in this Court, Mr Lowe, argued that his Honour had fallen into error in three specific respects:

• in declining to find special circumstances;
• in allowing an inadequate discount for the plea of guilty; and
• in giving inadequate weight to the element of provocation in mitigation of sentence.

He also argued that, in all the circumstances, the sentence is manifestly excessive.

Special circumstances

1. Mr Lowe submitted that his Honour had not given proper consideration to the question of special circumstances, given that there were a number of factors in the evidence which might have warranted such a finding. Mr Lowe referred to the applicant's relative youth, and his need for treatment, particularly in relation to alcohol and anger management. Moreover, Mr Lowe argued, his lack of insight into the extent of his criminality was a matter which itself pointed to the need for an extended period of conditional liberty. Mr Lowe also noted that in his remarks his Honour made no finding about the applicant's prospects of rehabilitation. Indeed, he made no reference to that issue.

1. Of course, it is well established by decisions of this Court that whether these are special circumstances is a matter for judgment in the light of the facts of the case at hand, in the exercise of a discretion with which this Court would not lightly interfere. It is sufficient to refer to R v Simpson [2001] NSWCCA 534, 53 NSWLR 704, per Spigelman CJ at [68] and [73]. In the present case, notwithstanding the matters raised by Mr Lowe, it was open to his Honour to find that there was no need for a period of parole eligibility greater than that afforded by the statutory proportion. This appears to have been an isolated and atypical criminal episode, committed in unusual circumstances by a man who had maintained a law abiding lifestyle for some years and had reasonable prospects of rehabilitation. This ground is not made out.

Discount for plea

1. The applicant's plea of guilty was entered shortly after the day on which the matter had been listed for trial. The first count in the indictment was an offence under s 112(3) of the Crimes Act , charging the applicant with breaking and entering Mr Keaton's dwelling and committing a serious indictable offence, the reckless wounding of Mr Keaton, in circumstances of aggravation and of special aggravation. That offence carries a maximum sentence of imprisonment for 25 years. The charge to which the applicant pleaded guilty, under s 113(3) of the Act, was the second count. His plea of guilty to that count was accepted in discharge of the indictment.

1. His Honour noted that the plea was entered when that alternative charge was first included in the indictment, but added that it was "a statutorily available charge to which the offender could have earlier pleaded guilty." In this Court it was common ground that in that observation his Honour was in error. The various alternative verdicts available in respect of offences in the relevant part of the Crimes Act are to be found in s 115A. That section does not provide for a verdict of guilty of an offence under s 113(3) as an alternative to a count under s 112(3).

1. Mr Lowe submitted that the discount should have been 20%, citing R v Newman and Simpson [2004] NSWCCA 102, 145 A Crim R 361, per Howie J at [44]. That was also a case in which the applicants' pleas of guilty to an offence under s 113(3) had been accepted by the Crown in satisfaction of an indictment which contained another more serious count. The sentencing judge had allowed a discount of 20% for the pleas. At [44] Howie J, delivering the leading judgment, observed that although "the Crown prosecutor conceded that it was the first reasonable opportunity for the accused to plead to the indictment presented, the discount was appropriate in the light of the plea coming at that stage of the proceedings."

1. However, the discount for the pleas was not an issue with which the Court was concerned in that case. I understand his Honour to have been saying no more than that, despite the Crown prosecutor's concession, the pleas did not merit the full discount of 25% because of the time at which they were entered. The 15% discount allowed in the present case is consistent with the later examination of this issue by Howie J in R v Borkowski [2009] NSWCCA 102, 195 A Crim R 1.

1. Ultimately, the discount to be allowed for the applicant's plea was a matter very much within his Honour's discretion and I am not persuaded that discretion miscarried. His Honour's view that a plea of guilty to an offence under s 113(3) was available as a statutory alternative where the indictment charged an offence under s 112(3), although erroneous, was not necessarily significant. As the Crown prosecutor in this Court pointed out, the applicant could have offered to plead guilty to a lesser charge at an earlier stage but did not do so. This ground is also not made out.

Provocation

1. Mr Lowe submitted that his Honour failed to have regard as a mitigating factor to the provocation of the appellant by the behaviour of Nathan Keaton. This factor, he argued, lessened the need for the sentence to reflect personal deterrence. I have referred earlier in these reasons to his Honour's assessment of the objective gravity of the offence, to his characterisation of the applicant's motive as "entirely misguided" (while acknowledging that Nathan Keaton's conduct was "disgraceful"), to the fact that the applicant's response was not spontaneous, and to his Honour's observation that the applicant's motive "underscored" the importance of general and personal deterrence.

1. Mr Lowe referred to R v Swan [2006] NSWCCA 47, in which the decision of Smith J in R v Craddock [2004] VSC 397 was cited with approval. It is unnecessary to refer to the facts of either case, except to observe that in both of them the offenders had sought vengeance against the victim for alleged criminal behaviour much more serious than that of Nathan Keaton. In Craddock , Smith J had this to say about deterrence as the issue arose in that case:

"General deterrence must not be overlooked and is a weighty consideration in determining the appropriate sentence. People cannot be allowed to take the law into their own hands as the prisoner did and exact a revenge for wrongs done to them. ...

As to personal deterrence, it has a role to play but less than might normally be the case. There is no evidence of remorse but Dr Walton expresses the opinion that the prisoner's violent behaviour, as he understands it, was an out-of-character event, which is reassuring in terms of his re-offending aggressively. He also suggests that the circumstances surrounding the killing with a specially targeted victim would suggest there is no other person readily identifiable as being at risk. The crime was a victim specific offence and the prisoner it seems does not have a reputation for violence. ..."

1. In Swan , Spigelman CJ (with whom Barr and Howie JJ agreed) set out that passage from Craddock at [57]. The Chief Justice continued:

"[59] The principle that a person is not entitled to take the law into his or her own hands is well known. ...

[60] However, the principle is, in large measure, a manifestation of the principle of deterrence, both general and personal. In that respect it is affected by other sentencing principles which impinge upon the weight to which personal and general deterrence is entitled in the circumstances of a particular case. ...

[61] The Crown submitted that the Applicant's motive did not diminish the 'seriousness of the offences.' This submission, unless limited to a narrow concept of the objective gravity of the offences, should be rejected. Motive is always a relevant factor. It affects the moral culpability of the offender, the weight to be given to personal deterrence and may affect the weight to be given to general deterrence. ..."

1. Of course, in the present case the unfortunate victim was not the person who had engaged in the provocative behaviour and was innocent of any wrongdoing whatsoever. Nevertheless, the principles examined by the Chief Justice in Swan are relevant to the assessment of the applicant's criminality. Although he acknowledged his need for anger management counselling, it seems that he, like the offender in Craddock , did not have a history of violence. His criminal record, which is old in any event, contains no entry for an offence of violence. As I have said, the evidence conveys that the offence was the product of unusual circumstances and was out of character, and the community is unlikely to be at risk from violent conduct on his part.

1. It does not appear that his Honour gave the applicant's motive such weight as it deserved in assessing the objective gravity of his crime. Misguided as it undoubtedly was, that motive did lessen his culpability, although not to a marked degree. It also diminished to an extent the need for personal deterrence. While I accept that general deterrence remained an important factor, I am of the view that his Honour fell into error in concluding that the applicant's motive underscored the need for personal deterrence. This ground is made out.

Manifestly excessive?

1. As error has been established in his Honour's approach to sentence, it is open to this Court to re-sentence the applicant. That being so, it is strictly not necessary to determine the question whether the sentence passed is manifestly excessive. The Crown prosecutor in this Court submitted that it was within the range of sentence properly open to his Honour, but acknowledged that it is "stern."

1. We were not taken to any statistics on sentencing for offences under s 113(3). I would think that it is a charge not frequently laid. Nor were we taken to any comparable cases on sentence for that offence except for Newman and Simpson , to which I have referred. The facts of that case are significantly different from the present case and, standing alone, it does not assist in determining the appropriate sentence for the applicant. Nevertheless, in all the circumstances, I am satisfied that a lesser sentence was warranted.

Re-sentence

1. The offence with which the applicant was charged, involving breaking and entering a dwelling house in circumstances of special aggravation, is, beyond doubt, a serious offence. That is reflected in the maximum sentence of 20 years imprisonment. The circumstance of special aggravation, as defined in s 105A, permits a penalty twice that available for breaking and entering a dwelling house with intent to commit a serious indictable offence therein: s 113(1). Circumstances of special aggravation can involve wounding or maliciously inflicting grievous bodily harm, or being armed with a dangerous weapon. It is clear from these descriptions that the specially aggravated form of the offence can cover events involving widely different degrees of seriousness.

1. Accepting that the applicant falls for sentence under the specially aggravated offence, and taking into account the assault charge on the form 1, it is nevertheless doubtful that the offence falls within the mid-range of objective seriousness, as assessed by his Honour. The Crown prosecutor contended that, this not being an offence subject to a standard non-parole period, his Honour's assessment of the range of objective seriousness was otiose and could be disregarded. However, while his Honour's finding reflects the language of s 54A of the Crimes (Sentencing Procedure) Act 1999, he was clearly entitled to express a view about the objective gravity of the offence. His finding explains why, in all the circumstances of the case, the sentence imposed was, as the Crown prosecutor acknowledged, "stern".

1. That view appears to have been reflected in his calculation, which commenced with a sentence of 8 years before reduction. Given the circumstances of the case, such a sentence is unduly harsh for a person who had reasonable prospects of rehabilitation and no history of violence. In my view, the appropriate starting point is imprisonment for 5 years. I would recognise the plea of guilty by a reduction of 15%, producing a sentence of 4 years and 3 months. I would not find special circumstances. Applying the statutory ratio to the sentence of 4 years and 3 months, the non-parole period would be a little over 3 years. I would round it off at 3 years.

1. I would grant leave to appeal, allow the appeal and quash the sentence passed in the District Court. Taking into account the offence on the Form 1, I would sentence the applicant to a non-parole period of 3 years, commencing on 17 December 2009 and expiring on 16 December 2012, and a balance of term of 1 year and 3 months, commencing on 17 December 2012 and expiring on 16 March 2014.

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Decision last updated: 16 September 2011