Smith v The Queen

[2023] ACTCA 26

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Smith v The Queen

Citation:

[2023] ACTCA 26

Hearing Date:

15 May 2023

DecisionDate:

9 June 2023

Before:

Mossop, McWilliam and Bromwich JJ

Decision:

The appeal is dismissed.

Catchwords:

APPEAL – Appeal against sentence for riding in vehicle without consent, aggravated burglary, attempt to intentionally inflict grievous bodily harm, and two counts of theft – where pleas of guilty entered after jury trial commenced and evidence from victims adduced, just prior to co-offender evidence being adduced – where the appellant contends that one of the guilty pleas should be permitted to be withdrawn – where the appellant was sentenced to six years and seven months, with a non-parole period of four years – whether there was a miscarriage of justice relating to charge of attempt to intentionally inflict grievous bodily harm – whether the overall sentence was manifestly excessive – whether the sentencing judge took into account parity with the sentence imposed upon the appellant’s co-offender for common offences

Legislation Cited:

Supreme Court Act 1933 (ACT), s 37O(2)(a)(iii)

Cases Cited:

Lowe v The Queen (1984) 154 CLR 606

Parties:

Robert James Smith (Appellant)

The Queen (Respondent)

Representation:

Counsel

Self-represented (Appellant)

K McCann (Respondent)

Solicitors

Self-represented (Appellant)

Director of Public Prosecutions (Respondent)

File Number:

ACTCA 40 of 2022

Decision under appeal: 

Court/Tribunal:             Supreme Court of the ACT

Before:  Norrish AJ

Date of Decision:          6 July 2022

Case Title:  R v Smith

Citation: [2022] ACTSC 162

Court File Number:      SCC 83 of 2021

THE COURT:

Introduction

1. The appellant, Mr Robert James Smith, pleaded guilty to five out of six counts in an indictment.  As those guilty pleas included count 3, count 4, which was an alternative to count 3, fell away.  The guilty pleas took place after the commencement of the trial by judge and jury, and the giving of evidence by several witnesses.  The trial judge convicted Mr Smith and sentenced him to terms of imprisonment for each of the five offences. 

1. Mr Smith appeals against the last count upon the basis of it constituting a miscarriage of justice for the purposes of s 37O(2)(a)(iii) of the Supreme Court Act 1933 (ACT) such that he should be given leave to withdraw his guilty plea. He also appeals against the overall sentence imposed upon the basis of manifest excess in relation to each of the five constituent sentences and misapplication of the parity principle in relation to the offences committed by both him and his co-offender, Mr Kye Jayden Rowe. Mr Smith seeks to be resentenced by this Court.

1. A number of documents attesting to Mr Smith’s circumstances and conduct in prison were admitted into evidence, without objection, upon the usual basis that they would only become relevant and be taken into account in the event that the appeal succeeded such that there was a resentencing exercise to be carried out by this Court.  As it transpired, that has not arisen.  However, those documents, and the apparently genuine expressions of regret and intention to reform expressed by Mr Smith in representing himself on the appeal, together with his general positive demeanour, indicate that he may have reasonable prospects of being eligible for participation in the transitional release program and for a grant of parole when that becomes available to him.  Those are matters for the prison and parole authorities, and dependent upon Mr Smith’s conduct in prison.

The offending conduct

1. The offending conduct, which took place in the period between 31 August 2020 and the early hours of 2 September 2020, may be concisely stated.  What follows was principally drawn from the agreed statement of facts before the primary judge because that was what was expressly agreed to, supplemented by his Honour’s remarks on sentence and assisted by the summary of the facts in the Crown’s written submissions drawn from those remarks. 

1. Between 31 August 2020 and the early hours of 1 September 2020, a BMW car was stolen from the house of the owner.  The owner reported it missing to police on the morning of 1 September 2020.  Later the same morning, a young woman known to Mr Rowe rang him and asked him to pick her up, along with her friend, another young woman. 

1. At about midday, Mr Rowe picked the two women up, with Mr Smith and possibly another man already in the car.  Mr Rowe drove to a car park in a suburb of Canberra where a policeman on the lookout for the car saw it, fitted with NSW number plates in place of the original ACT number plates.  A police car was driven to be nose to nose with the stolen car. 

1. The two young women got out of the stolen car and Mr Rowe drove the stolen car away.  Police were unable to pursue the stolen car.  Mr Smith was charged with riding in a motor vehicle without consent (count 1 against Mr Smith).  The primary judge found that there was clear evidence that throughout 1 September 2020, Mr Rowe drove the BMW and Mr Smith was a passenger, but that Mr Smith was to be sentenced on the basis that the vehicle was in possession of both of them throughout that day.

1. At about 11.30 pm that night, Mr Rowe and Mr Smith drove to a house in another suburb in Canberra occupied by two men who were not apparently known to either of them.  Both Mr Rowe and Mr Smith entered the premises wearing balaclavas.  Mr Rowe was holding a jerry can filled with petrol and a lighter.  One of the occupants, Mr Parkes, who the primary judge found owned the house, was asleep, and was woken up.  He was asked where the other occupant of the house was.  Mr Parkes took them to a bedroom occupied by Mr Lampe, whom his Honour found was a type of tenant who had only lived there for a short time.  As Mr Rowe and Mr Smith walked towards the bedroom, Mr Smith picked up a knife from a kitchen bench.  Mr Smith picking up the knife was not specifically referred to by his Honour.

1. Both Mr Rowe and Mr Smith went into the bedroom.  Mr Rowe said to Mr Parkes and Mr Lampe that one of them owed money.  Both said they did not know what he was talking about.  Mr Rowe, holding the jerry can, pointed to Mr Lampe and said that he owed someone thousands of dollars, and threatened to splash it on Mr Lampe and set him on fire if he did not give Mr Rowe money.  Mr Lampe said that he did not have any money. 

1. Both Mr Rowe and Mr Smith were later charged with aggravated burglary by reason of being trespassers who had entered or remained on premises with intent to commit an offence that involved causing or threatening to cause harm (count 2 against Mr Smith).

1. Mr Rowe told both Mr Parkes and Mr Lampe to sit on the bed and asked them if they had anything valuable.  Mr Parkes said he was going through a separation and had nothing.  At about that time, Mr Rowe took Mr Lampe’s iPhone.  Mr Smith was charged with theft of the iPhone (count 6 against Mr Smith).  The primary judge found that Mr Rowe had demanded that Mr Lampe hand over his iPhone, but also described Mr Rowe as taking it in company with Mr Smith.

1. Mr Rowe told Mr Parkes to tie Mr Lampe’s hands and legs together, which he did with an iPhone charging cable and an extension cord.

1. Either Mr Rowe or Mr Smith asked where the main box for the security cameras was.  Mr Parkes told them that it was in the ceiling outside the bedroom.  Both Mr Rowe and Mr Smith left the bedroom, and Mr Smith used a knife to pull out the CCTV control box in the ceiling and slice the cable.

1. Mr Rowe came back into the bedroom and told Mr Parkes to tie Mr Lampe’s legs with another charger cord, then left the bedroom and looked through the house.  Mr Smith stayed in the doorway to the bedroom.  The primary judge described Mr Smith as guarding Mr Parkes and Mr Lampe.  Mr Lampe said he did not know what it was about or who he owed money to, but that he would give all the money he had if they would leave.  Mr Lampe offered to call a friend to get money.  Mr Smith gave Mr Parke’s phone to Mr Lampe to make that call.  Mr Rowe came back and cut the ties on Mr Lampe’s hands so that he could use the phone.  Mr Lampe tried to call his friend, but the phone rang out.

1. Mr Rowe left the bedroom again and returned and said that he was taking Mr Parkes’ camera and car.  Mr Parkes left his keys near the entrance to the house.  Mr Rowe left the bedroom again to search the house.  Mr Smith stayed in the bedroom and told Mr Lampe and Mr Parkes that Mr Rowe was his “apprentice in training” for “this sort of stuff”.  It should be noted that the primary judge did not use evidence of these comments to attribute any greater role to Mr Smith than Mr Rowe in the joint part of their offending. 

1. Mr Rowe returned to the bedroom with bondage shackles and put them loosely on Mr Parkes.  A short time later, when Mr Parkes and Mr Lampe were talking quietly to one another, one of Mr Smith or Mr Rowe said to them that if they kept talking they would slit their throats.  Mr Smith held a knife pointed towards Mr Parkes’ throat.  The primary judge found that the knife was held to Mr Parkes’ throat.

1. Mr Rowe left the bedroom again and was again searching the house, talking about being owed money and asking what else he could take, with Mr Parkes telling him to look for and take what he liked.  Both Mr Smith and Mr Rowe walked down the corridor.  Mr Parkes could see front door was open, loosened his shackles and ran out of the house, closing the door behind him.  A neighbour let him in and rang the police.

1. Mr Lampe stayed in the bedroom, saying he did not know why Mr Parkes had run away.  The primary judge found that Mr Lampe had remained because he was fearful of running from the house because, among other reasons, he had a dog of which he was protective. 

1. Mr Smith started to pour petrol on Mr Lampe and on his dog.  Mr Lampe begged him not to and said he would get the money.  But Mr Smith lit a lighter and was about to throw it when Mr Lampe kicked Mr Smith in the stomach, causing Mr Smith to fall over.  Mr Lampe then slammed the door shut.  Mr Smith briefly tried to get into the bedroom, but was unable to, so ran out of the house.  Mr Smith was charged with attempting to inflict grievous bodily harm (count 3 against Mr Smith).  Count 4 against Mr Smith was an alternative count, so did not proceed.

1. One of Mr Rowe or Mr Smith took Mr Parkes’ Ford Ranger vehicle when they left, this having been foreshadowed by Mr Rowe.  Mr Smith and Mr Rowe were both charged with theft of that vehicle (count 5 against Mr Smith).  Again, while both Mr Smith and Mr Rowe were charged with this offence in a joint indictment dated 29 April 2021, and while Mr Smith pleaded guilty to that offence upon that basis as reflected in the agreed statement of facts, that charge was not maintained against Mr Rowe.  As noted above, Mr Rowe was charged with a number of other offences to which he pleaded guilty and was sentenced. 

Additional factual findings made by the primary judge

1. The primary judge found that Mr Smith’s offence of entering Mr Parkes’ house in company with Mr Rowe could probably be regarded as a home invasion.  His Honour found that neither of them knew either of the victims, and if they were genuinely there to enforce a debt, they were either at the wrong premises, or had the wrong people, judging by the presentation of the victims in the recorded interviews conducted soon afterwards.  His Honour found that the threat of using a lighter to set the petrol aflame was serious, but was substantially aggravated by Mr Smith actually splashing the petrol on the victims and lighting up the lighter.  

1. The primary judge also found that the objective facts did not reveal any degree of intoxication on the part of either of the offenders and that they acted deliberately and rationally, so far as the ambit of their criminal scheme was concerned.  

1. It was further accepted by his Honour that the criminal enterprise of Mr Smith and Mr Rowe did not come to an end by any voluntary act on their part but rather as a result of the actions of the victims, and that the objective seriousness of the offending was further aggravated by the character of the offence being a home invasion at night in which weapons were carried and the deliberate nature of the offenders’ actions.  

1. Mr Smith was also on bail subject to conditions at the time of the offending which was an aggravating factor in the sentencing discretion exercised by his Honour.

The sentences imposed

1. The primary judge imposed the following sentences of imprisonment:

Count	Offence	Length	Dates
1	Riding in the BMW without consent	11 months	13 November 2021 to 12 October 2022
2	Aggravated burglary	3 years and 9 months	13 June 2022 to 12 March 2026
3	Attempt to intentionally inflict grievous bodily harm	4 years and 3 months	13 March 2024 to 12 June 2028
5	Joint commission theft of the Ford Ranger	1 year and 4 months	13 March 2022 to 12 July 2023
6	Joint commission theft of the iPhone	6 months	13 March 2022 to 12 September 2022

1. The above sentences as to duration and dates produced a head sentence of 6 years and 7 months, commencing on 13 November 2021 and expiring on 12 June 2028.  The primary judge imposed a non-parole period of 4 years, commencing on 13 November 2021 and expiring on 12 November 2025. 

1. The sentences for the first three offences of riding in the BMW without consent, aggravated burglary and attempt to intentionally inflict grievous bodily harm made up the overall head sentence of 6 years and 7 months.  That is, neither theft offence added to the length of the head sentence at all, nor would have made any measurable difference to the non-parole period.

The guilty plea to the sixth count (fifth sentence imposed) – theft of the iPhone

1. For completeness, it should be noted that, by the time of sentence, count 6, the theft of the iPhone became the fifth offence.  That was because the alternative to count 3, being count 4, had not continued once the guilty plea was entered to count 3. 

1. While both Mr Smith and Mr Rowe were charged with the theft of the iPhone offence in a joint indictment dated 29 April 2021, and while Mr Smith pleaded guilty to that offence upon that basis as reflected in the agreed statement of facts, that charge was not maintained against Mr Rowe for reasons that were not before this Court or, it seems, the primary judge.  Mr Rowe was, however, charged with a number of other unrelated offences.  It is this count 6, being the fifth and last offence to which Mr Smith pleaded guilty and was sentenced, for which he contends he should be able to withdraw his guilty plea. 

1. As noted above, Mr Smith received no additional time in his head sentence, and no appreciable increase in his non-parole period for this offence, although doubtless it was part of the instinctive synthesis deployed by the primary judge in deciding the duration of the non-parole period.

1. Mr Smith’s appeal against the sentence imposed for the theft of the iPhone upon the basis of it representing a miscarriage of justice because he had not committed that offence can readily be seen to be the product of a misunderstanding on his part arising from an exchange between the primary judge and the prosecutor during the sentence hearing by which his Honour sought to clarify a factual matter as to that offence.  His Honour was concerned that Mr Rowe had not been sentenced for that offence.  The prosecutor confirmed the primary judge’s understanding that it was Mr Rowe who had physically taken possession of the iPhone from Mr Lampe.  It seems that Mr Smith took from this exchange that this meant that he had not also committed that offence.  That was not so because it was charged as a joint commission offence for which both were legally responsible, even if the actual taking of the iPhone was done by Mr Rowe.

1. This misunderstanding manifested in Mr Smith interrupting his Honour’s oral delivery of the sentence reasons and saying that it had been established that he had not committed that offence, which was not correct.  This much is made clear by his Honour’s observation at paragraph 19 of the remarks on sentence when his Honour said, consistently with the statement of agreed facts, but with the additional detail that it was Mr Rowe who had taken possession of Mr Lampe’s iPhone:

Ultimately the offender Rowe demanded that Lampe hand over his iPhone, the taking of which in company with this offender constitutes the fifth charge [count 6] to which this offender has pleaded guilty.

1. It follows that no miscarriage of justice has taken place and this ground of appeal must fail.  The guilty plea to the theft of the iPhone must stand.

Manifest excess

1. Mr Smith represented himself at the appeal hearing, but did not make any substantial submissions.  He was mainly concerned with the overall length of the sentence imposed, thought that his time in custody, bail refused, had not been properly taken into account, and was concerned that a letter he had provided to the primary judge had been disregarded, resulting in his mental health conditions not being mentioned. 

1. A careful consideration of the remarks on sentence reveals that the overall length of the sentence imposed was mostly a reflection of the seriousness of the two main charges of aggravated burglary and the attempt to inflict grievous bodily harm, accounting for all but a little over four months of the overall head sentence of 6 years and 7 months. 

1. Doubtless Mr Smith is shocked and upset at the length of his sentence, but if anything, the primary judge’s sentence was on the more lenient side, especially when regard is had to the maximum penalties that applied to those two offences of 20 years imprisonment.  No error on the part of his Honour in the assessment of the seriousness of the offending has been identified and none is apparent.  That is especially so given the need appropriately found by his Honour for both general and specific deterrence.   

1. Nor is there any substance in Mr Smith’s concern about the time that he was in custody, bail refused, on these charges.  That period of 235 days, or about 7 and a half months, was detailed in the Crown tender bundle that was before the primary judge.  His Honour expressly said at [80] that this had been taken into account.

1. As to Mr Smith’s handwritten letter, the primary judge referred to this at [27], [61] and [69].  His Honour ultimately accepted much of what Mr Smith said about his background, but was not willing to accept that his responsibility was diminished by inebriation from drugs or alcohol, nor to diminish his role and responsibility for what had taken place.  His Honour placed Mr Smith and Mr Rowe at the same level of responsibility for the offences that they both committed or jointly committed, noting that the attempt to inflict grievous bodily harm was committed by Mr Smith alone.  No error in this approach has been demonstrated and again none is apparent.

1. As to Mr Smith’s mental health, this was the subject of some evidence before the primary judge and was referred to by his Honour at [65]-[68].  However his Honour was not satisfied that there was evidence that this was operative at the time of the offending.  His Honour said that nothing had been put that there was anything within Mr Smith’s medical history that would require giving lesser weight to general or personal deterrence by reason of the presence of any particular mental illness or disability that was either causally connected to the offending or provided some context for it, but did accept that he had mental health vulnerabilities.  At [76], his Honour expressly said that he had taken into account submissions made by his counsel about his mental health issues and progress. 

1. Neither the individual sentences imposed, nor the overall sentence, have been shown to be excessive, let alone manifestly so.  This ground of appeal must fail.

Parity

1. For the following reasons, there is no proper basis for a complaint about the sentence imposed on Mr Smith by reference to the sentence imposed upon Mr Rowe for the offences they had in common, which is the limit of the parity argument available.  Applying the principles in Lowe v The Queen (1984) 154 CLR 606 at 623 regarding differences in sentences that were imposed, common offences needed to be shown to give rise to a justifiable sense of grievance.

1. It is important to state at the outset that there are some important similarities and  differences between the Mr Smith, and his co-offender, Mr Rowe, relevant to sentence and therefore relevant to the issue of parity:

(a)    Mr Rowe was born in the second half of 2000, and was 20 years of age at the time of the offending.  Mr Smith was born in mid-1989, so was 31 years of age at the time of the offending. 

(b)    Mr Rowe had a substantial criminal record.  Mr Smith had a lesser criminal record, but it was still sufficient to be found to deny him any particular leniency. 

(c)    Mr Rowe pleaded guilty at a relatively early stage, and agreed to give evidence against Mr Smith.  Mr Smith only pleaded guilty after the victims of the offending had given evidence at his trial, and Mr Rowe was about to give evidence. 

(d)    Mr Rowe was given a discount for cooperation and assistance of between 25 and 33 percent.  Mr Smith was given a discount for his late guilty plea of 5 percent.

(e)    Mr Rowe, in his evidence before the former Chief Justice, had demonstrated significant remorse and steps towards his own rehabilitation. Mr Smith did not give evidence before the primary judge and so did not demonstrate the same level of remorse and steps towards rehabilitation.

1. While Mr Smith is clearly unhappy with Mr Rowe being given a lighter sentence for their common offences, being the use of the BMW without consent and the aggravated burglary, that sense of grievance is not justified for the following reasons.

1. The sentence of Mr Rowe was heard by a different judge with somewhat different material before the former Chief Justice, partly as a result of the much earlier guilty plea by Mr Rowe.

1. The primary judge was acutely aware of the issue of parity and dealt with it at some length.  His Honour noted in particular that Mr Rowe had been given a combined discount of 33 percent for the aggravated burglary, reflecting both his guilty plea, the assistance he provided, and 25 percent for the other offences.  This is to be compared with the approximate 5 percent discount for Mr Smith’s guilty plea after several days of evidence at his trial, after both victims had given evidence and just before Mr Rowe was about to be called to give evidence.  As noted above, the discount that Mr Smith was in fact given was slightly more than 5 percent as a matter of arithmetic. 

1. The primary judge adopted the same starting point for the two offences in common between Mr Rowe and Mr Smith.  The starting point sentence for the BMW offence for both Mr Rowe and Mr Smith was 12 months.  Mr Rowe’s final sentence of 9 months reflected a 25 percent discount, whereas Mr Smith’s final sentence of 11 months reflected an 8 percent discount and reflected his much later guilty plea. 

1. The starting point sentence for the aggravated burglary for both Mr Rowe and Mr Smith was 4 years.  Mr Rowe’s final sentence of two years and eight months reflected a discount of 33 percent, whereas Mr Smith’s final sentence of three years and nine months reflected a discount of just over 6 percent which, once again, reflected his much later guilty plea and no assistance.

1. As already noted, there was a significant age difference between the two men of some 11 years.  In common, both men are functionally illiterate and had deprived backgrounds with a history of drug taking.

1. Mr Rowe gave evidence at his sentence hearing, while Mr Smith did not.  That gave Mr Rowe an opportunity to impress upon the former Chief Justice that he was a genuine young man who was motivated to overcome obstacles and accept responsibility, demonstrating genuine remorse, sympathy for the victims and insight into his offending.  None of this was demonstrated by Mr Smith beyond the fact of his late guilty plea, and despite his handwritten letter.

1. Finally, while Mr Rowe’s criminal record was considerably worse, Mr Smith’s prior offending involving use and possession of drugs, assault occasioning actual bodily harm, breach of probation orders, and other summary matters was not such as to entitle him to any particular leniency.

1. Overall, the Crown is correct to identify the substantial basis for the difference in the sentences imposed being the timing of the guilty pleas and the assistance.  No error has been identified in relation to that otherwise transparent and justifiable disparity.

1. There is no substance to the complaint about parity, such that this ground of appeal must fail.

Conclusion

1. As no appellable error has been established, the appeal must be dismissed.

I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Date: 9 June 2023