New South Wales District Court CITATION: R v Schmalz [2007] NSWDC 226 HEARING DATE(S): 28/08/07 20/09/07 JUDGMENT DATE: 20 September 2007 JURISDICTION: Criminal JUDGMENT OF: Conlon SC DCJ DECISION: Convicted. Sentenced to a non-parole period of 4 years and 6 months with an additional period of 2 years and 6 months. Find special circumstances. CATCHWORDS: Maliciously inflict GBH with intent - Victim Impact Statement - Standard Non-Parole Period - Plea of guilty - Statements by accused to psychologist LEGISLATION CITED: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) R v Berg [2004] NSWCCA 330 R v Way (2004) 60 NSWLR 168 CASES CITED: R v Ohar [2004] NSWCCA 83 R v Pellew [2004] NSWCCA 434 R v Qatami [2001] NSWCCA 353 PARTIES: Crown Nathan Schmalz (Accused) FILE NUMBER(S): 07/41/0054 COUNSEL: Ms J Healey (Accused) SOLICITORS: Mr A Kernaghan (Crown) JUDGMENT 1 HIS HONOUR: The offender, Nathan John Schmalz, appears for sentence following his plea of guilty to one count of maliciously inflicting grievous bodily harm upon Cindy Pinney with intent thereby to do grievous bodily harm. The offence is contrary to s 33 of the Crimes Act and carries a maximum penalty of twenty-five years imprisonment. The facts are as follows: The offender and victim, Cindy Pinney, had been friends since February 2006. In the middle of November 2006 the offender moved into the premises of Mr Brett McAndrew-Jenkins at 23 Wegit Way, Warrawong. At the beginning of December Cindy Pinney also moved into those same premises and commenced a de facto relationship with the offender. On Saturday 16 December 2006 the offender and Ms Pinney attended the Illawarra Yacht Club and consumed alcohol. The offender also consumed a pill being methylamphetamine. Ms Pinney left the club at about 4pm as she had to pick up her young nieces. She returned to the club where she spoke briefly with the offender and then with her nieces went to the Wegit Way premises. Shortly after, the offender returned home they had a heated argument. The offender commenced hitting Ms Pinney with his hands to her face and top part of her body. He then grabbed her hair and shoved her face into a foot spa filled with water. He was shouting at her and punched her around the head. As Ms Pinney yelled out for help the offender placed his hands around her neck. In attempting to remove his hands from her neck she bent a fingernail. She had trouble breathing and thought she was going to lose consciousness. He continued to hit her causing a gash to her left wrist which later required sutures, a weapon was then being used. However, the nature of that weapon could not be identified. The offender then put Ms Pinney in the shower and turned it on. She recalled him trying to strangle her while she was in the shower. She was left dressed only in her underwear and lost consciousness. When she regained consciousness she noted blood in the shower and she could hear the offender arguing with flatmate Brett McAndrew-Jenkins. Mr McAndrew-Jenkins had been at his home along with his girlfriend, Jenna O'Cass, when Ms Pinney and her nieces returned from the club. Shortly after the offender returned, Mr McAndrew-Jenkins and Ms O'Cass left to go to the Dapto Leagues Club. Whilst on their way they received a phone call from a neighbour indicating they should return home immediately. He drove back, got straight out of his car, ran into the house, he could hear the shower running. He went upstairs and noticed blood on the offender's bedroom door and on the balcony railing. As he arrived at the top of the stairs he noticed the offender standing at the doorway to the bathroom swearing at Ms Pinney. Mr McAndrew-Jenkins pushed him out of the way. He saw Ms Pinney on the floor of the shower and there was blood everywhere. He noticed she was dressed only in bra and undies. She was calling out, "Help, help, stop, stop". The offender was saying, "Shut up", and, "I want you out". He also said something like, "You don't know what has happened she sold herself at Port on Tuesday". Mr McAndrew-Jenkins has stated that he took his shirt off ready to fight the offender and they began pushing and shoving one another. It was at this time he saw Ms Pinney leave the bathroom and go into the bedroom. Mr McAndrew-Jenkins told the offender he wanted them out of his home. The offender said something about, "Putting Cindy in the Lake", so Mr McAndrew-Jenkins remained to ensure her safety. The offender began throwing her belongings out the bedroom window. Her arm was bleeding everywhere, she was crying and asking for an ambulance. According to Mr McAndrew-Jenkins the offender said, "You are not going anywhere I'm going to put you in the Lake". They ended up outside and Ms Pinney sat in the passenger seat in a car of Ms O'Cass. She said Ms Pinney was crying and saying things like, "I'm not a prostitute I didn't do it, leave me alone, I just want to get my stuff, I'm going, I'll get a taxi". Ms O'Cass attempted to help her pack her belongings. Ms O'Cass noticed the offender out the front of their home saying words to the effect, "Cindy sold herself on Wentworth Street, she's a prostitute, not even for money, just drugs and alcohol". Ms O'Cass then noticed that Ms Pinney was no longer in her car. She eventually located her up the road in a neighbour's house. She said she was, "Hunched over and kept saying she couldn't breathe". A short time later the police arrived. When Ms Pinney lifted her top Ms O'Cass noticed a cut on her ribs, she said she felt sick and walked away. An ambulance then arrived and took Ms Pinney to hospital. Ms O'Cass returned to the house, she observed blood, "Still everywhere upstairs". She also saw Ms Pinney's wet clothes still at the bottom of shower. The shower curtain had been ripped off and was on the floor. Mr McAndrew-Jenkins stated that the shower screen had been broken, there was a large crack in the bathroom door. He did not know where the offender had gone. The victim spent some days in hospital following this attack and she suffered a pneumothorax (a collapsed lung), a fractured rib, fluid around the lung, puncture wounds to the armpit and left lower back, a laceration to the side of the wrist. The treatment included insertion of an intercostal catheter to drain air and fluid from around the lungs. She also suffered from two black and swollen eyes, bruising to her body, two lacerations to the top of her head requiring six sutures in total, a broken toe and a bent and painfully broken nail on her hand. 2 The agreed statement of facts also includes the following: "It is also accepted that the victim suffered shock and emotional trauma as a result of this attack". 3 A victim impact statement was received pursuant to s 28 of the Crimes (Sentencing Procedure) Act. In considering that statement I noted the words of caution on the proper use of victim impact statements by Woods CJ at CL in R v Berg [2004] NSWCCA 330 at 38 and 49. I am not satisfied that what is contained in the victim impact statement amounts to something more in the way of the psychological injury and emotional harm suffered by the victim than that which the court has assumed to be the case. Accordingly I do not take this matter into account as an additional aggravating factor under s 21(2)(g). STANDARD NON PAROLE PERIOD 4 There is a standard non parole period of seven years for an offence under this section. The standard non parole period represents the non parole period appropriate for conduct within the middle of the range of objective seriousness for such an offence. Standard non parole periods strictly apply only to offences within the middle of the range of objective seriousness upon conviction after trial (see R v Way (2004) 60 NSWLR 168 and R v Ohar [2004] NSWCCA 83 and R v Pellew [2004] NSWCCA 434). Although there has been a plea of guilty in the present case the standard non parole period remains as a reference point for the assessment of the appropriate sentence. In R v Way the court accepted a submission that the task of determining what is an offence in the middle of the range of objective seriousness "should be approached intuitively and should be based upon the general experience of the courts in sentencing for the particular offence" [para 74]. 5 The assessment of where the offence lies in the range of offences of its type is to be made by reference to all of the facts and circumstances of the offence and to the range of offences of its kind which come before the court. In this respect I have had regard to a document which I have been informed by Ms Healey is from the Public Defender's Sentencing Table. The document is some seventeen pages and sets out examples of offences and their results in respect of s 33. 6 I regard the use of the weapon (the nature of which has never been identified) as an aggravating feature. The only mitigating factors I find under s 21A(3) are: (l) that the offender has shown remorse; and, (k) the plea of guilty. 7 Whilst this was a brutal and cowardly attack it falls somewhat below the middle of the range of objective seriousness but only slightly below that range. SUBJECTIVE CIRCUMSTANCES 8 The offender is now twenty-one years of age. A report of psychologist Mr John Taylor (dated 10 August 2007) is exhibit 1. That report contains the following background information provided by the offender: He has a brother and is the older of the two children in the family. The family lived in the Southern Highlands until he was aged about four years when they moved to the Wollongong area. From the age of thirteen he was placed in a number of foster homes. He completed his School Certificate at sixteen years and then left school. He described himself as an average student who did not experience any learning difficulties. He then participated in Father O'Reilly's Off the Streets Program and whilst in the program completed his school education. He stayed in the program until he was eighteen years of age. He first obtained work as a scaffolder when eighteen years. He said he only had a job for about three months before receiving a gaol sentence. He has obtained other work as a scaffolder and a painter. 9 He informed the psychologist that his physical health has always been quite good and that he had been in a number of de facto relationships. He said he first consumed alcohol when he was eleven years of age. From about sixteen he said he had a problem with alcohol abuse. He also claimed to have used cannabis regularly from the age of eleven. He had not used any other illegal substance apart form the methylamphetamine which he stated he used for the first time on the day of this offence. He claimed to have felt depressed for about three years as a result of him first going to gaol. He also stated that anger had been his biggest problem. 10 In respect of the offence itself on p 6 the following was recorded: "He can recall a conversation with the victim and said that she had told him that she had been selling herself as a prostitute while they had been sleeping together. He said, 'That turned me from happy to angry, I remember taking her to the shower and then being outside the front of the house'. He claims that he has no memory of hitting the victim". 11 In accordance with R v Qatami [2001] NSWCCA 353 at 58 I treat those statements made by the offender to the psychologist with great caution and I give very little weight to them. Also on p 6 of that report this appears: "He expressed considerable regret and remorse for his offending behaviour. With regard to this he said he now feels 'shocking, horrified, disgusted, I'm ashamed that I did such a thing. The worst thing about it was that I can't remember everything that took place'. He reported he feels upset the victim was injured". 12 Under the heading of "Opinion" Mr Taylor stated: "He is assessed as having a moderate risk of recidivism, this is consistent with the nature and extent of his criminal record. Based on information available at the time of preparing this report it appears that he has had little counselling or psychological therapy since leaving Father O'Reilly's program at about the age of eighteen years. However, he stated that he would like to be able to resolve his substance abuse and believes that if he can do this then he is not likely to re-offend. It is of relevance that he stated that he has an offer of employment when he is released from gaol. It is also significant that his partner and his parents are supportive of him. These will be of assistance to him in terms of helping him to integrate into the community once he has been released and to help him develop a more stable life. He stated that he would like to participate in the ex inmate program when he has been released from gaol and he is assessed as being a suitable candidate for that program. Through this program he would receive individual counselling and support on an ongoing basis, this would involve counselling for anger management and relapse prevention for substance abuse". 13 Exhibit 2 is a letter from the offender directed to the court. The letter is in two parts. The second part is an apology to Ms Pinney. I accept on the balance of probabilities that the sentiments he expressed therein are genuine expressions of remorse. I now refer to the first part of the letter: "I go as far as to say that if I had not have sampled the drug methylamphetamine that the offence that occurred on Ms Pinney would not have taken place. Sir I'm not a violent man although it may not appear this way with what I am charged with today. Sir, however, I am a son, big brother, fiancé and friend to a wonderful family, a caring and loving wife to be and a great group of friends who would all tell you the same thing that this is out of character for myself". 14 On the second page this appears: "Sir I am sorry for committing the violent offence to Ms Pinney and I have no intention of committing a crime ever again. I have a life, sir, and a fiancé that's awaiting my return to continue that life drug and alcohol free and loving life for the gift that it is the person that committed the crime of GBH is not the Nathan John Schmalz you see before you today, that person no longer exists, but I do know that what I have done is wrong and I am to be held accountable for my actions and punished accordingly". 15 In view of the offender's assertions in the first part of that letter it is appropriate to examine his criminal record. 16 On 11 May 2004 at the Wollongong Local Court in respect of a charge of common assault he was placed on a s 9 bond to be of good behaviour for twelve months. On 7 September 2004 at Wollongong Local Court in respect of a charge of larceny he was similarly placed on a s 9 bond to be of good behaviour for twelve months. He was called up in respect of breaches of both of those bonds and on 6 April 2005 at Wollongong Local Court he was re-sentenced in relation to that charge of common assault and larceny to six months imprisonment on each charge to date from 8 January 2005. Also on the same date, that is 6 April 2005, in respect of another charge of common assault, one of contravening apprehended violence order, a charge of failing to appear in accordance with bail undertaking and a charge of stalk/intimidate he was sentenced to twelve months imprisonment with a non parole period of six months also to date from 8 January 2005. Also on that same day at the Wollongong Local Court on 6 April 2005 he was sentenced in respect of three charges of break, enter and steal for which he received a sentence of two years with a twelve months non parole period to date from 8 July 2005. He was also sentenced on a charge of escape from police custody, he was given six months to date from 8 July 2005 and possess a prohibited drug for which he was fined $100. On 17 August 2005 at the Wollongong Local Court in respect of a charge of break, enter and steal he was given twelve months with a six month non parole period to date from 10 June 2005. His criminal record is not one that would entitle him to any leniency. THE PLEA 17 The offender is entitled to have his plea of guilty taken into account in mitigation of penalty. This is done on two bases: to reflect the utilitarian benefit to the criminal justice system and to reflect contrition. The plea of guilty was entered in the Local Court on 26 March 2007. Consequently it is a plea at the earliest opportunity and I propose to reflect the utilitarian benefit of that plea by a discount of about 25%. 18 I have taken into account the purpose of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. I have also had regard to s 5 of the Act and having considered all possible alternatives and the objective seriousness of the offence I am satisfied that no penalty other than imprisonment is appropriate. 19 In respect of crimes involving domestic violence specific and general deterrence are important factors together with the requirement of powerful denunciation by the community of such conduct. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is also an important factor. 20 I find special circumstances being that the offender is still a young man, being twenty-one years of age, and in accordance with the observations of the psychologist the offender will require a longer period of supervision to assist in this rehabilitation. I find this sufficient reason for me to vary the statutory ratio. 21 Mr Schmalz, would you stand. You are convicted of this offence and I sentence you to a non parole period of four years and six months to date from 26 December 2006 and expire on 25 June 2011. I sentence you to an additional term of two years and six months to expire on 25 December 2013. ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.