The State of Western Australia v Smith
[2024] WASC 361
•3 OCTOBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- SMITH [2024] WASC 361
CORAM: QUINLAN CJ
HEARD: 2 OCTOBER 2024
DELIVERED : 2 OCTOBER 2024
PUBLISHED : 3 OCTOBER 2024
FILE NO: INS 271 of 1993
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
SMITH
Respondent
Catchwords:
Criminal law – Accused acquitted of charges on the grounds of insanity subject to custody order – Application to set limiting term of custody order – Custody order made under repealed legislation – Transitional provisions – Setting limiting term where custody order made in respect of multiple charges – Setting limiting term where significant lapse of time since making of custody order
Legislation:
Criminal Code (WA)
Criminal Law (Mental Impairment) Act 2023 (WA)
Criminal Procedure Act 2004 (WA)
Result:
Limiting term set as 10 years and 6 months
Proceedings adjourned pursuant to s 265(7)
Category: A
Representation:
Counsel:
| Applicant | : | A J Finn |
| Respondent | : | H A Gorsky |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Legal Aid WA |
Cases referred to in decision:
EXF v State of Western Australia [2015] WASCA 118
LWJR v State of Western Australia [2009] WASCA 200
R v Leggett [2000] WASCA 327
Regan v Western Australia [2005] WASCA 240
RNN v State of Western Australia [2010] WASCA 26
The State of Western Australia v Chokolich [2024] WASC 346
Table of contents
Introduction and overview
Issues of statutory construction
Limiting terms in the case of multiple charges
The 'best estimate' of the term of imprisonment for historical offending
Circumstances of the charged offences
Mr Smith's personal circumstances
Seriousness of the offending
Victim impact
Maximum penalties
Mitigating factors
General and specific deterrence
Best estimate of the sentence that would have been imposed
Next steps
Orders
QUINLAN CJ:
(This judgment was delivered extemporaneously and has been edited to correct grammar and infelicities of language and to include full references to relevant evidence and authorities.)
Introduction and overview
On 20 May 1993, the respondent, Mr Smith, went to the home of relatives of his and attacked two of his much younger relatives, Lily (not her real name), a 17-year-old girl, and Kira (not her real name), a 12‑year-old girl. Mr Smith punched Lily in the face and committed a series of acts against Kira, including touching her breasts, sexually penetrating her, punching her face and threatening her with a knife.
Mr Smith was charged on indictment with six offences against the Criminal Code:
(a)unlawfully assaulting Lily, and thereby doing her bodily harm, contrary to s 317 of the Criminal Code (count 1);
(b)indecently dealing with Kira, by cutting her shirt so as to expose her breast and touching her breasts with his hand, contrary to s 320(4) of the Criminal Code (count 2);
(c)sexually penetrating Kira, by introducing his penis into her mouth, contrary to s 320 of the Criminal Code (count 3);
(d)sexually penetrating Kira, by penetrating her vagina with his penis, contrary to s 320 of the Criminal Code (count 4);
(e)unlawfully assaulting Kira, and thereby doing her bodily harm, contrary to s 317 of the Criminal Code (count 5); and
(f)threatening to unlawfully injure Kira by threatening to cut her breast off with a knife, contrary to s 338B of the Criminal Code (count 6).
On 28 January 1994, following a four-day trial before Murray J and a jury, Mr Smith was found not guilty of each count on the indictment, on the grounds of insanity. The effect of the jury's verdicts was that, while they were satisfied beyond reasonable doubt as to the elements of each offence, they were satisfied that Mr Smith was not criminally responsible for the acts constituting those offences by reason of his mental disease or natural mental infirmity.
Pursuant to s 653 of Criminal Code, Murray J ordered Mr Smith to be kept in strict custody subject to the Governor's pleasure. Upon the commencement of the Criminal Law (Mentally Impaired Accused) Act 1996 (repealed Act), Mr Smith became a 'mentally impaired defendant' within the meaning of pt 5 of the repealed Act and subject to a custody order under that Act. The repealed Act was, in turn, repealed by the Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI Act), which commenced operation on 1 September 2024.
The transitional provisions in pt 14 of the CLMI Act provide that a custody order under the repealed Act in effect immediately before the commencement day (existing custody order) has effect as if it were a custody order made under pt 5.[1] Mr Smith is, therefore, subject to an existing custody order.
[1] CLMI Act, s 254.
Mr Smith has, accordingly, been subject to custody pursuant to the Criminal Code, repealed Act and now the CLMI Act, for 30 years, 8 months and 5 days.
The Director of Public Prosecutions (Director) has applied to the Court to set a limiting term for Mr Smith's existing custody order, pursuant to s 261 of the CLMI Act. That application came before me today.
I am required to set a limiting term for Mr Smith's existing custody order, being the best estimate of the term of imprisonment that the court would, in all of the circumstances, have imposed if the court were sentencing Mr Smith and he had pleaded guilty to the charges at the earliest opportunity and his mental impairment was not taken into account.
If the limiting term that I set expires on or before today, I must adjourn the proceedings until the Minister applies to the Court for an extended custody order under pt 7 div 5 of the CLMI Act or informs the Court that such an application will not be made.[2]
[2] CLMI Act, s 265(7).
The precise duration of the limiting term in the present case is largely academic. That is because the parties are agreed that, properly applying the provisions of the CLMI Act, whatever limiting term I set will have expired long before today. In other words, whatever is the best estimate of the term of imprisonment that the court would, in all of the circumstances, have imposed if it were sentencing Mr Smith, it would be a term considerably less than the 30 years he has already spent in custody.
Nevertheless, I am still required to set a limiting term for Mr Smith's custody order. For the reasons that follow, I would set the limiting term for the custody order as 10 years and 6 months. That term is taken to have commenced on 28 January 1994.
As the limiting term expired before today, I will adjourn the proceedings until the Minister applies to the Court for an extended custody order or informs the Court that such an application will not be made.
Before turning to the application itself, it is necessary to address some preliminary issues of statutory construction that arise in this case.
Issues of statutory construction
The requirement to set a limiting term for a custody order is found in s 50 of the CLMI Act. The transitional provisions in pt 14, div 2, sub‑div 5 of the CLMI Act provide for the setting of limiting terms for existing custody orders. Where it is required to set a limiting term for an existing custody order under those transitional provisions, the court must set the limiting term 'under section 50'.[3]
[3] CLMI Act, s 264(1).
In The State of Western Australia v Chokolich[4] I addressed a number of issues of statutory construction in relation to both the transitional provisions and the application of s 50 of the CLMI Act generally.
[4] The State of Western Australia v Chokolich [2024] WASC 346 (Chokolich).
Save where necessary, I will not repeat what I said in Chokolich.
As discussed in Chokolich, s 50(2) of the CLMI Act requires the court to determine the 'best estimate' of the term of imprisonment that the court 'would, in all the circumstances have imposed', based on certain assumptions. That task is necessarily a hypothetical exercise, given the assumptions that the court is required to make by both s 50(2) and s 50(3) of the CLMI Act. The court setting the limiting term, in essence, 'stands in the shoes' of a hypothetical sentencing court.[5] In that context, the term of imprisonment that the hypothetical sentencing court 'would have' imposed is the sentence the court would in fact have imposed by applying the Sentencing Act, and in particular s 6 of that Act, in light of the ordinary sentencing principles.[6]
[5] Chokolich [60], [61].
[6] Chokolich [62].
This exercise is undertaken subject to the express requirements of s 50 of the CLMI Act itself, including that the best estimate of the hypothetical sentence must be determined without taking into account any mental impairment of the person, a matter I addressed at some length in Chokolich.[7]
[7] Chokolich [66] - [73].
In the present case, two new issues of statutory construction arise in the case of the application of both s 50 and the transitional provisions:
(a)the proper approach to setting a limiting term in cases where, as in the present case, the custody order is made (or, in the case of an existing custody order, was made) following a hearing in relation to multiple charges; and
(b)the proper approach to the 'best estimate' of the term of imprisonment that the court would, in all the circumstances have imposed where the custody order was made at a time in which standards of sentencing (as to, for example, the seriousness of certain conduct) may have been different.
I will address each issue in turn.
Limiting terms in the case of multiple charges
Historically, under the relevant provisions of the Criminal Code and the repealed Act, persons found to be unfit to stand trial in relation to a number of charges, or who had been acquitted on account of unsoundness of mind of multiple charges, were often made subject to a single custody order. As all custody orders under those former statutory regimes operated as a form of 'Governor's pleasure' detention, in which the custody order could not otherwise expire by operation of law, to have been subject to more than one such order, simultaneously, could have made no practical difference to the person's liberty.
While it does not arise in the present case, it would appear to be at least theoretically possible for a person to be subject to more than one custody order under the CLMI Act. That might arise, for example, where a person already subject to a custody order is charged with an offence committed during the custody order (either in custody or during a leave of absence) but is found unfit to stand trial on the subsequent charge. In such a case, unlike under the former statutory regimes, there may be a real practical difference between the different custody orders because each order could potentially have different limiting terms (and so might expire by operation of s 51(a) of the CLMI Act at different times).
Nevertheless, the CLMI Act generally proceeds upon the assumption that a person subject to pt 6 of the Act will only be subject to one custody order. Certainly, the provisions in relation to places of custody and review of orders by the Mental Impairment Review Tribunal (Tribunal), in div 3 and 4 of pt 6 appear to proceed upon that basis.
In addition, my provisional view is that, in circumstances in which a court is dealing with two or more charges against a person and is required to deal with the person under pt 5 of the CLMI Act the Court must make one order in relation to the person. I am of that view for the following reasons.
First, it is clear that a court dealing with a person under the CLMI Act may do so in relation to two or more charges in a single prosecution notice or indictment, and at a single special proceeding (in the case of an accused who is not fit to stand trial) or trial (in the case of an accused who raises a defence under s 27 of the Criminal Code). In that regard, s 14 of the CLMI Act expressly provides that the Criminal Procedure Act 2004 (WA) (Criminal Procedure Act) applies to proceedings under pt 3 and pt 5 of the CLMI Act, with necessary modifications. The provisions of the Criminal Procedure Act in relation to matters such as joinder of charges would therefore apply to such proceedings.
Secondly, where a court must make an order under pt 5, in relation to a person who is either unfit or has been acquitted on account of mental impairment, s 46 of the CLMI Act provides:
(1)If a court must make an order under this Part in respect of an accused, it must –
(a)make a custody order; or
(b)make a community supervision order; or
(c)order that the person be released unconditionally.
Section 46 is clear (by the repeated use of the word 'or') that the court may only make one order 'in respect of an accused' (not, I would observe, 'in respect of a charge'). For example, a court could not make a custody order and a community supervision order in relation to an accused. Indeed, the CLMI Act generally does not contemplate that a custody order and a community supervision order can apply to a person at the same time (see, for example, s 89, which requires the court to cancel a community supervision order if it makes a custody order in relation to a person on a community supervision order). Even more obviously it would be logically impossible for a court to make either a custody order or a community supervision order (under (s 46(1)(a) or (b)) and at the same time make an order 'that the person be released unconditionally' (s 46(1)(c)).
Accordingly, in my view, where a court is dealing with a person on two or more charges in a prosecution notice or indictment and concludes that a custody order in respect of an accused is the appropriate order under pt 5, the court must make only one custody order (and not a separate order with respect to each charge).
I have expressed this as a provisional view because, in the present case, I am not required to make a custody order but rather to set a limiting term for an existing custody order.
It is nevertheless relevant to the operation of the CLMI Act as a whole, as it applies to this case because, in the present case, Mr Smith is in fact subject to a single custody order that was made as a consequence of being found not guilty by reason of insanity in relation to six separate charges.
It is therefore necessary to determine the proper approach to be taken to s 50 of the CLMI Act where the court is required to set a limiting term in relation to a single custody order made in respect of two or more charges.
In that context, it is clear from the CLMI Act as a whole that a single custody order may only have one limiting term. There is nothing in the CLMI Act that provides for, or contemplates, that a custody order could have more than one limiting term. Indeed, s 51 of the CLMI Act, which provides that a custody order expires when 'its limiting term expires', could not sensibly operate if a custody order had two or more limiting terms.
The issue then arises as to the correct approach to setting that single limiting term in such a case. In that context it is appropriate to set out s 50 in full:
50.Limiting term for custody order
(1)In this section –
term of detention means a term of detention under the Young Offenders Act 1994;
term of imprisonment means term as defined in the Sentencing Act 1995 section 85(1).
(2)If a court makes a custody order, the court must set a limiting term for the order, being the best estimate of the term of imprisonment or term of detention that the court would, in all the circumstances, have imposed if –
(a)the court were sentencing the person for the offence; and
(b)any mental impairment of the person were not taken into account.
(3)For the purposes of subsection (2), the court must assume that –
(a)the person had pleaded guilty to the charge at the earliest opportunity; and
(b)there is no other option but to impose a term of imprisonment or term of detention.
(4)The limiting term commences on the day on which the order is made unless the court, after taking into account any time that the person has already spent in custody in relation to the offence, orders that the term be taken to have commenced on an earlier day.
While s 50(2)(a) and s 50(3)(a) refer to the 'offence' and the 'charge' in the singular, in a context in which a custody order has been made with respect to two or more charges, in my view in accordance with s 10(c) of the Interpretation Act 1984 (WA), the singular must be taken to include the plural. Accordingly, in such a case, the court's hypothetical sentencing exercise is to be carried out, inter alia, as if 'the court were sentencing the person for the offences' (s 50(2)(a)) and on the assumption that the 'person had pleaded guilty to the charges at the earliest opportunity' (s 50(3)(a)).
In those circumstances, as I have said earlier, and subject to the assumptions required by s 50 itself, the court must arrive at a best estimate of the term of imprisonment the court would have imposed by applying the Sentencing Act, in light of ordinary sentencing principles.
The Sentencing Act, and usual sentencing principles, of course, include the effect of provisions relating to concurrency and cumulacy[8] and the totality principle.[9] The best estimate of the term of imprisonment will therefore take into account those considerations.
[8] Sentencing Act, s 88.
[9] Sentencing Act, s 6(3)(b).
In addition, in my view, in such a case, on a proper construction of s 50, where the court comes to set the limiting term with respect to a custody order made in relation to multiple charges, the limiting term should reflect the best estimate of the total effective sentence that the court would have imposed if it were sentencing the person for the offences.
I have reached that construction for the following reasons.
First, in circumstances in which the court is required to set a single limiting term, the total effective sentence that would have been imposed in relation to two or more offences would most accurately meet the description of the 'best estimate' of the term of imprisonment that would have been imposed. To set a limiting term for example, as if all sentences were concurrent, or alternatively, all sentences were cumulative, would fail to reflect such an estimate.
Secondly, to set the limiting term in such a case as the total effective sentence best reflects the equality of treatment between a person subject to a custody order and persons who are sentenced for offences. In that regard, one of the principles to which the court must have regard in applying the provisions of the CLMI Act, in s 7(2)(e), is:[10]
that persons with mental impairment in the justice system should not be subject to outcomes under this Act that restrict their freedom more severely than if they had been convicted of the offence that they have been found to have, or are alleged to have, committed.
[10] CLMI Act, s 7(2)(e).
This principle is best served by a limiting term that reflects the best estimate of the total effective sentence that the person would have been required to serve had they been convicted and sentenced (subject, of course, to the assumptions required by the CLMI Act itself).
The 'best estimate' of the term of imprisonment for historical offending
The second general issue of the application of s 50 of the CLMI Act potentially arises most acutely in transitional cases such as the present where the custody order was made many years ago. As I have said, the offences in the present case were committed, and the custody order itself was imposed, in excess of 30 years ago.
In those circumstances, how should the court approach the best estimate of the term of imprisonment that the court would have imposed if it were sentencing the person for the offence? Does it make that best estimate based on what it considers the court would have imposed at the time that the custody order was made? Or does the court make the best estimate based on what it would have imposed if it were sentencing the person today?
For the reasons that follow, the latter approach is the correct one to adopt in a case such as the present.
First, in relation to the text of s 50(2) of the CLMI Act itself, it is clear that the court which sets the limiting term must make the best estimate the court would have imposed if the court were sentencing the person (rather than another hypothetical court, such as a court sitting at a different time). As I said in Chokolich, 'the court is required to determine the best estimate of the term of imprisonment as if the court were in fact sentencing the person based on the specified assumptions'.[11]
[11] Chokolich [61].
This is perhaps most obvious in relation to the prospective operation of s 50 of the CLMI Act because, necessarily, the court setting the limiting term will be the court that makes the custody order. There will, therefore, be no prospect of a lapse of time between the making of the custody order and the best estimate of the term of imprisonment that the court would have imposed if it were sentencing the person.
Nevertheless, for consistency, the section should operate in the same way in a transitional case where the court that sets the limiting term is a different court than the court that made the custody order. In such a case the court that sets the limiting term must still determine what term of imprisonment it (the court) would have imposed if it were sentencing the person for the offence.
Secondly, in the transitional provisions in relation to applications under s 262 of the CLMI Act, where specific statutory criteria are identified in relation to whether the court may set a limiting term that is not for the duration of the life of a person, the criteria are clearly expressed in terms of the court's current assessment of the circumstances, not what would have been the courts assessment at the time that the existing custody order was made.[12] Whilst this provision is not applicable in the present case, it nevertheless reflects a legislative intention that the assessment of the limiting term for an existing custody order is intended to reflect current, rather than retrospective, standards.
[12] See s 264(2), which refer to the court's satisfaction that the life term 'would clearly be unjust' (rather than 'would have been clearly unjust') (s 264(2)(a)) and the person 'is unlikely to be a threat' (rather than 'would have been a threat') (s 264(2)(b)).
Thirdly, this approach is consistent with the approach generally taken in this State in relation to persons sentenced for offences committed many years, and even decades, in the past. In this State the courts have consistently applied the principle that:[13]
[w]hile the appropriate penalty will be one which reflects the maximum imposed by the legislature at the relevant time, it is also the case that the seriousness of the conduct constituting the offence falls to be evaluated (to the extent that there may be a difference in attitude over time) by reference to contemporary standards of seriousness.
[13] R v Leggett [2000] WASCA 327 [22] (Wheeler J; Pidgeon & Ipp JJ agreeing); Regan v Western Australia [2005] WASCA 240 [16] (Mclure JA; Steytler P & Wheeler JA agreeing); LWJR v State of Western Australia [2009] WASCA 200 [6] (Owen, Mclure & Pullin JJA); RNN v State of Western Australia [2010] WASCA 26 [41] (Buss JA; Owen & Newnes JJA agreeing); EXF v State of Western Australia [2015] WASCA 118 [69] (Hall J; Martin CJ & Buss JA agreeing).
This approach not only reflects contemporary standards, it also avoids the unenviable and potentially fraught prospect of the court attempting to recreate what would have been the attitude to, or understanding of, the seriousness and effects of certain offending over time. While those attitudes and understandings may not be appreciably different in many cases, there will undoubtedly be cases in which the courts' appreciation of the effects of certain types of offending will have developed over time and been manifested in changes to sentencing practices. The serious and long‑lasting effects of child sexual abuse is one such example.
Similarly, to determine the best estimate of the term of imprisonment that the court would have imposed according to contemporary attitudes and understandings (if there is a difference), is more in keeping with s 7 of the CLMI Act, which requires the court to have regard to the principle that 'victims of offences committed by persons with mental impairment should have the opportunity to be acknowledged and heard'.[14]
[14] CLMI Act, s 7(2)(k).
To determine a limiting term by reference to since‑outdated attitudes or understanding of the seriousness or effects of certain types of offending might fail to acknowledge the impacts of such offending on victims.
In this context, I do not consider that determining the best estimate of the term of imprisonment that the court would have imposed according to contemporary standards of seriousness would fail to have regard to the equality of treatment envisaged by s 7(2)(e) of the CLMI Act. As I have said, a person being sentenced today for 'historic' offences will be in the same position. And, moreover, in the case of persons in the transitional cohort, such as Mr Smith, whose period in custody is so lengthy that it dates back to a time when the understandings might have been appreciably different than they are today, the reality is likely to be that their limiting terms will have expired in any event.
This is not to say that the time at which the relevant offences were committed is irrelevant to the setting of a limiting term. As with the sentencing of offenders, and as is reflected in s 10 of the Sentencing Act, where a lesser statutory penalty for an offence applied at the time of the commission of the offence, the lesser statutory penalty will apply for the purposes of sentencing.
Similarly, in the present case, the State accepted that, in determining the best estimate of the term of imprisonment the court would have imposed on Mr Smith for the offences committed in 1993, the court should not, in assessing Mr Smith's personal circumstances and antecedents, have regard to offences that he has committed since the custody order was made. That is, a person who was otherwise of good character, or a first offender, at the time of the commission of the offence, would still be sentenced on that basis.
Otherwise, the usual sentencing principles apply, including s 9AA of the Sentencing Act in relation to the discount that the offender would have received for a plea of guilty at the earliest opportunity.
I turn then to the best estimate of the sentence that the Court would have imposed if it were sentencing Mr Smith for the offences the subject of the custody order.
Circumstances of the charged offences
The State read a Statement of Material Facts for the purposes of the application. It also tendered a brief of evidence prepared for the purposes of the hearing. Mr Smith's counsel accepted those facts for the purposes of the application and, indeed, properly noted that the verdicts of the jury in 1994 made clear that the jury had found the essential elements of the six offences proven.
The Statement of Material Facts was to the following effect.
In the early hours of Thursday 20 May 1993, Mr Smith attended the home of a member of his extended family. He was armed with a knife.
Asleep inside the house with the adult occupant of the house were three young members of Mr Smith's extended family: Lily, who was 17 years of age, Kira, who was 12 years of age, and another boy who was 14 years of age.
Mr Smith demanded entry into the house and was let in. He was holding the knife in his hand at about waist‑level and was pointing the knife at the occupants, who had all woken up and come into the kitchen.
Mr Smith led the occupants into a middle room of the house and then punched Lily in the right eye with a clenched fist. This caused Lily bruising and soreness but did not require medical attention (this constituted count 1).
Mr Smith then approached Kira. He grabbed the front of her t‑shirt and used the knife to cut the t‑shirt down the front, exposing her breasts. Mr Smith then began to fondle Kira's breasts whilst still holding the knife (this constituted count 2).
Mr Smith pulled the torn t‑shirt off completely and instructed Kira to take off the rest of her clothes, which she did, out of fear.
All the occupants were still in the middle room together. Mr Smith grabbed Kira by her hair and forced her to kneel on the ground. Mr Smith told her to suck his penis. He let go of her hair and pushed his penis into her face.
Mr Smith forced his penis into Kira's mouth and pushed it in and out a few times (this constituted count 3).
Mr Smith then pulled Kira by her hair into a bedroom at the back of the house. Lily followed them into the bedroom. The others stayed in the middle room.
Once in the bedroom Mr Smith took his pants off, pushed Kira onto a bed and laid on top of her. Mr Smith told Lily to remove her clothes, which she did.
Mr Smith inserted his penis into Kira's vagina. He reached beside him and grabbed the knife off the bed and held it in his hand. Mr Smith penetrated Kira's vagina with his penis for approximately 10 minutes (this constituted count 4). Kira was crying throughout the incident.
When Mr Smith finished, he stood up and started asking Kira a series of questions about people which she could not answer. When she could not answer a question, Mr Smith punched Kira. This occurred three times. Kira was punched with a closed fist twice to the left‑side of her face and once on her nose. She was later observed to have bruising and scratches over these areas (this constituted count 5).
Mr Smith placed the knife against Kira's left breast and threatened to cut off her breast if she did not answer his questions (this constituted count 6).
Mr Smith then approached Lily, who was naked, and instructed her to sit on the end of the bed. Mr Smith knelt beside Lily and placed the knife on her left knee. He pushed the knife down but did not push enough to draw blood. Mr Smith was asking questions about people and events unknown to the victims.
Mr Smith told Lily to put her clothes back on (which she did) and he then led Lily and Kira back into the middle room, where the others had remained.
Mr Smith told the victims to lie on the floor. Kira was still naked. Mr Smith told the boy to get a bucket of cold water which Mr Smith then poured over Kira. Kira was naked and wet on the floor.
After a short time, Mr Smith went to sleep in the bed. The victims also went to sleep.
The next morning Mr Smith's mother attended the house. She contacted the police. Police arrived and spoke to Mr Smith who stated that his relatives were trying to kill him, so he made them strip off and he threatened to cut his relative's nipple off.
The following day, on 21 May 1993, detectives transported Mr Smith from Graylands Hospital to a police station for a formal interview. While travelling to the station, Mr Smith admitted to sexually penetrating Kira knowing that she was 12 years old and that he had punched her in the head.
Mr Smith declined to participate in a video recorded interview or give a written statement.
Mr Smith's personal circumstances
Mr Smith was 30 years of age at the time of the offending. He is now 61 years of age.
Mr Smith had a deprived childhood and was also a victim of sexual abuse. It was during that time that he developed the habit of carrying knives, for protection. He later spent time in State care where the abuse continued.
Prior to the night of the offending, Mr Smith had an extensive criminal record, including convictions for offences of violence. He had previously been sentenced to a lengthy term of imprisonment for offences of unlawful wounding and doing grievous bodily harm and a term of 12 months imprisonment for an offence of unlawful carnal knowledge. He was on parole for that offence at the time of the offences committed on 20 May 1993.
While a court sentencing Mr Smith would not increase his sentence because of his prior offending, he would not have been sentenced as a person of prior good character. His previous acts of violence would also have been relevant to specific deterrence.
Mr Smith also had a history of substance abuse, particularly of amphetamines, which was at least partly responsible for his mental impairment. He had also used amphetamines at the time of the offences. The jury at his trial were directed, however, that if his psychosis on that day was due to underlying mental disease which made him susceptible to psychosis, then the fact that it was triggered by voluntarily intoxication would not preclude them from considering the insanity defence. Clearly, by their verdicts, the jury concluded that Mr Smith did suffer from an underlying mental disease.
The State accepted, in this case, that Mr Smith's voluntary intoxication was not an aggravating feature of the offending on 20 May 1993 for the purposes of the hypothetical sentencing exercise. Given the complex interaction between any intoxication and his underlying mental disease, I accept that concession. Certainly, his voluntary intoxication could not have been mitigating.
Otherwise, I must arrive at the best estimate of the term of imprisonment without taking into account Mr Smith's mental impairment. In the present case, that means that I will eschew any particular finding as to his state of mind in committing the offences. I could not positively find, for example, that the offences were sexually motivated or stemmed from some other motive. Consistent with what I said in Chokolich, I will neither reduce the limiting term by reason of diminished responsibility nor increase it by reason of what might otherwise have been regarded as callous premeditation or disregard for the suffering of the victims.[15]
[15] Chokolich [73].
Nevertheless, the seriousness of the offences is to be assessed according to their objective features, included the degree of suffering, humiliation and degradation that the victims experienced, and in particular Kira.
It is to that seriousness that I now turn.
Seriousness of the offending
The offending in the present case was objectively very serious. The victims would have been utterly terrified.
The indecent and sexual offences against Kira were particularly serious examples of that type of offending. There were a number of aggravating features to that offending, including:
(a)the victims were vulnerable children. They were entitled to feel safe in the home of an adult relative but were completely defenceless. Mr Smith had demanded entry into that home;
(b)Mr Smith was armed with a knife throughout the period of the offending;
(c)the offending was persistent and violent, including the inherent violence of the sexual offences. In addition to the terror and invasion of their personal autonomy, the victims suffered physical injuries;
(d)there were a number of objectively humiliating and degrading features of the offending, including that it occurred in the presence of others, that Lily was forced to helplessly watch the degradation of her young relative, that Kira was stripped in front of the others and that she had cold water thrown on her; and
(e)Mr Smith was on parole at the time.
Victim impact
Section 263 of the CLMI Act makes provision for notification of, and statements or submissions by, victims of the offences in respect of which the existing custody order was made. No victim statement or submission was provided to me.
Nevertheless, I have no doubt that the impact of the offences, on all of those present (especially Kira), would have been profound. The long‑lasting and traumatic effects of such offending experienced by victims is well known.
Maximum penalties
The maximum penalties for the offences are as follows:
Count Offence Imprisonment 1 Assault occasioning bodily harm 5 years 2 Indecent dealing with a child 10 years 3 Sexual penetration of a child 20 years 4 Sexual penetration of a child 20 years 5 Assault occasioning bodily harm 5 years 6 Threat to injure 3 years
Mitigating factors
While Mr Smith would have been entitled to mitigation for his deprived childhood, including childhood abuse, the principal mitigating factor in the hypothetical sentencing of Mr Smith would have been his guilty plea.
Based on the assumption required by s 50(3)(a) of the CLMI Act, Mr Smith would have been entitled to a significant reduction in his sentence for the early pleas of guilty, including by reason of the avoidance of trauma to the victims in having to give evidence. In the circumstances, however, he would not have been entitled to the maximum discount of 25% of the head sentence for each offence. That is because the Crown case was a strong one: the offences were committed in the presence of others, there was significant physical evidence of the violence to Kira and Mr Smith made certain admissions.
In my assessment, Mr Smith would have been entitled to a discount of 20%.
General and specific deterrence
In determining the best estimate of the term of imprisonment that the court would, in all the circumstances have imposed, the parties accepted that the court would, as it would in any sentencing exercise, give appropriate weight to issues of general and specific deterrence.
In relation to general deterrence, the requirement not to take into account the person's mental impairment creates little difficulty. General deterrence will be a matter to be assessed by reference to the objective seriousness of the offending.
As in the case of issues of specific intent (discussed in Chokolich),[16] the requirement not to take into account the person's mental impairment can potentially give rise to difficulties in assessing issues of specific deterrence. That is because issues of specific deterrence in sentencing may, in particular cases, be inextricably bound up with the offender's mental impairment. As with issues of mental state generally, those considerations can pull in different directions: an impaired mental state might lessen the need for specific deterrence in relation to moral culpability but might increase it by reason of an unrepentant attitude to future offending.
[16] Chokolich [73].
In arriving at a best estimate, without regard to mental impairment, of the need for specific deterrence in a case such as the present, it may be necessary to apply what might be described as a 'run of the mill' weight to specific deterrence (if there be such a thing): to neither give less weight on account of the person's commitment to prosocial behaviour nor additional weight to an unrepentant attitude to future offending.
That is what I will do in relation to Mr Smith.
Best estimate of the sentence that would have been imposed
In my assessment, having regard to the above matters and all relevant sentencing principles (including a discount for pleas of guilty of 20%), and customary standards of sentencing, the appropriate sentences for the individual offences in this case would have been:
Count Offence Imprisonment 1 Assault occasioning bodily harm 1 year and 6 months 2 Indecent dealing with a child 2 years and 6 months 3 Sexual penetration of a child 6 years 4 Sexual penetration of a child 6 years and 6 months 5 Assault occasioning bodily harm 1 year 6 Threat to injure 1 year
In relation to concurrency and cumulacy, given the number of offences and multiple victims, there would have been at least some degree of accumulation of the individual sentences imposed on Mr Smith. Nevertheless, applying the first limb of the totality principle, it would have been necessary that the total effective sentence properly reflect the overall criminality of the offending as a whole. No issue of a crushing sentence, in accordance with the second limb of the totality principle, would have arisen in the present case.
In the circumstances, in my view, the total effective sentence that the court would have imposed would have been a sentence of 10 years and 6 months imprisonment. That would have been achieved by ordering the sentence with respect to count 4 as the head sentence, and ordering the sentences with respect to counts 1 and 2 to be served cumulatively on count 4 and on each other (with all other sentences ordered to be served concurrently).
For all of these reasons, I am satisfied that the best estimate of the term of imprisonment that the court would, in all the circumstances, have imposed for the six offences, based on the assumptions in s 50 of CLMI Act, is 10 years and 6 months imprisonment.
I will therefore set the limiting term for Mr Smith's existing custody order pursuant to s 264 of the CLMI Act as 10 years and 6 months.
In accordance with s 264(3) of the CLMI Act, that limiting term is taken to have commenced on the day on which the existing custody order was made, namely 28 January 1994.
Next steps
Section 265 of the CLMI Act applies where a limiting term is set under s 264 and the limiting term expires on or before the day on which the limiting term is set.
That is the case here. Mr Smith's limiting term expired over 20 years ago.
Pursuant to s 265(2) Mr Smith's existing custody order will continue until an order is made by this Court under s 265(6). Section 265(6) provides that the Court must either make an order discharging Mr Smith from the existing custody order or make an order under pt 7 div 5 of the CLMI Act. Part 7 div 5 empowers this Court to make an extended custody order.
Before determining whether to discharge the existing custody order or make an extended custody order under s 265(6), however, the court must adjourn the proceedings until the Minister applies for an extended custody order or informs the court that such an application will not be made.[17]
[17] CLMI Act, s 265(7).
I will therefore adjourn the proceedings to a date to be fixed to enable the Minister's intention to be known.
Orders
For these reasons, I order that the limiting term for the custody order in respect of Mr Smith made on 28 January 1994 pursuant to s 653 of the Criminal Code, and continued pursuant to pt 5 of the repealed Act, and further continued as a custody order under the CLMI Act be set as 10 years and 6 months.
I also order that the proceedings be adjourned pursuant to s 265(7) of the CLMI Act until a fixed date, with liberty to apply to relist the matter.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
KT
Associate to the Hon Chief Justice Quinlan
3 OCTOBER 2024
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