Regina v Brendon James SMITH [1999] NSWCCA 45

New South Wales Court of Criminal Appeal CITATION : Regina v Brendon James SMITH [1999] NSWCCA 45 FILE NUMBER(S) : CCA 60675/97 HEARING DATE(S) : 12 March 1999 JUDGMENT DATE : 12 March 1999

PARTIES : Brendon James Smith JUDGMENT OF : Simpson J; Smart AJ

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Shillington DCJ

COUNSEL : R. Burgess Counsel for the Appellant R.D. Ellis Counsel for the Crown SOLICITORS : T.A. Murphy Solicitor for the Appellant S.E. O'Connor Solicitor for the Crown CATCHWORDS : Severity of sentence - assault and robbery at ATM machine ACTS CITED : s95 Crimes Act 1900 DECISION : Leave to appeal granted. Appeal allowed to the extent of back-dating the sentences as indicated. In lieu of the starting and finishing dates specified by the judge the applicant is sentenced to 4 years penal servitude comprising a minimum term starting 25 July 1997 and ending 24 July 1999 and an additional term of 2 years starting on 25 July 1999 and ending on 24 July 2001. The applicant will be eligible for release on parole on 25 July 1999.

IN THE COURT OF CRIMINAL APPEAL 60675/97 SIMPSON J SMART AJ

Friday, 12 March, 1999

REGINA v Brendon James SMITH

JUDGMENT 1 SMART AJ Brendon James Smith seeks leave to appeal against the severity of a sentence comprising a minimum term of 2 years and an additional term of 2 years. He pleaded guilty to a charge that on 24 March 1997 he assaulted Peter Morgan and robbed him of some $10 in money and before that robbery, struck him. The charge was laid under s.95 of the Crimes Act, 1900. No point is taken that the charge as framed appears to follow s.95 as it stood before amendment because there has been no relevant change in the elements of the offence. 2 The victim had been at a club and a hotel and had had a considerable amount to drink. About 9.30pm he was driven to an automatic teller machine in Summer Street, Orange. The victim recollects that while at the machine he turned to his right and saw a man on a white pushbike. That man said: "What are you fucking looking at?" The applicant agreed that he said that. The victim does not remember saying anything back to him but he could have. The next thing he recalls was being knocked down on to the ground. He next remembers an ambulance person talking to him. Then, he woke up the next day in hospital. 3 The applicant, who had also been drinking heavily, said that as he went past, he noticed the victim staring at him and heard some words and/or remarks which involved his aboriginality. He turned around and went back to where the man was standing and an argument ensued. We do not have the precise words that were allegedly said. 4 The applicant stated that the victim struck him first with his right hand on the chin. The 14 year old daughter of the victim's de facto, an eye witness with a good view, after narrating some of the argument in which pugilistic statements were exchanged, saw the victim swing a punch at the applicant, which connected. One witness said that he saw the victim push the applicant with both his hands into the applicant's chest and that then the applicant hit the victim very hard. The violence was such that the witness decided to leave and not get involved. 5 The applicant punched the victim on the chin. That punch lifted the victim up and he fell backwards onto the ground. As the victim lay on the ground in a semi-conscious condition, the applicant stomped on the right side of the victim's face. This striking was so severe that the victim suffered a fracture of the cheek bone, a fracture of the floor of his orbit and fractured nasal bones. 6 After stomping on the victim's face, the applicant went through the victim's pockets and took some of his money. 7 While regard can be had to the extent and severity of the striking, it must be kept in mind that the applicant was not charged under s.96 of the Crimes Act of assault, robbery and wounding or inflicting grievous bodily harm and cannot be sentenced on that basis. 8 There is much substance in the submission on behalf of the applicant that the sentencing judge did, in fact, proceed on the basis that grievous bodily harm had been inflicted. 9 In all the circumstances, the judge could not have been satisfied beyond reasonable doubt that the applicant threw the first punch and he would have had to proceed on the basis that the victim threw the first punch. However, on any view, the applicant's response was out of all proportion. 10 The judge did not accept that the applicant returned because the victim made a remark about the applicant's aboriginality and held that it was far more likely that the reason that the applicant returned was that he saw a defenceless man getting money from a teller machine. 11 Complaint was made about this finding. There was no evidence to the contrary of the applicant's statement as to the slur on his race and the cross-examination of the applicant did not explore the matter. The cross-examiner would have had some difficulty, as he could not get helpful instructions from the victim on this point because of the victim's apparent lack of recollection and his concession that he could have said something. 12 The judge should have proceeded on the basis that at the very least the remark which the applicant attributed to the victim may well have been said. He could not have been satisfied beyond reasonable doubt to the contrary. 13 The victim's staring at the applicant seems to have played some part. The critical matters in this case are the inexcusable stomping and the robbery and too much attention should not be paid to errors made on subsidiary points. 14 After the offence, the applicant left the scene. A man chased the applicant and required him to return to the scene. The applicant went back, but then rode away. He claimed that he panicked. The applicant was worried that he would be in further trouble with the police. 15 When spoken to by the police on 2 April 1997, the applicant initially denied any knowledge of what had happened. On being confronted with the video film taken at the automatic teller and being told about persons who had identified him as the robber, he told the police that the victim stared at him, abused him and punched him. The applicant said that he then punched the victim in the facial area; that the victim dropped to the ground; that he let go of the wallet, the contents of which dropped to the ground. The applicant told the police that he was not thinking what he was doing and kicked the victim in the side as a reflex action. He accepted that it may have been to the side of the face. He conceded that he had picked up some of the $2 coins on the ground. 16 He told the police that he did not take any money from the victim's wallet. He insisted that there was never going to be a robbery; it was a personal fight. However, in his evidence before the Judge, the applicant admitted that he went through the victim's pockets. 17 The judge expressly took into account the plea of guilty entered at the first available opportunity, the applicant's youth (born 6 December 1978), his aboriginality and that he had had an unhappy upbringing. 18 His father left the applicant's mother when he was very young. He experienced violence in the home and often saw his step-father assaulting his mother. The applicant recalls trying to protect his mother from being attacked with a knife when he was aged about 7. His step-father often arrived home affected by liquor. 19 His education and upbringing were disturbed. Because of his mother's difficulties he was sent to live with relatives and shunted between them. 20 His teenage years were troubled and on three occasions he attempted to hang himself. He was often difficult and disruptive and inclined to stand over other boys. With his grandmother's early death he lost an important, steadying and loving hand. 21 The applicant has had serious problems with alcohol and drug abuse, alcohol being his main drug of choice. 22 The applicant's record is a poor one. In 1994, when aged 15, he was convicted of possessing a shortened firearm in a public place and attempted robbery whilst armed and control orders were made. In 1996 he was convicted of a large number of dishonesty offences: Three stealing, seven break, enter and steal, five obtain benefit by deception and eight obtain benefit by deception; assault occasioning actual bodily harm and malicious damage. In 1997, there was a dishonesty offence and some driving offences, but they are not matters of consequence in this case. 23 After his arrest on 2 April 1997, the applicant remained in custody until he was released on bail on 5 May 1997 to attend the Second Chance Rehabilitation Centre at Cookamidgera. He was required to stay there and live there. He was not free to leave and had to comply with the Centre's rules. He remained there until 19 October 1997. He co-operated to a great extent, but engaged in some violent verbal outbursts and did not obey all the rules. He became unsettled and felt confined and under pressure. His departure was by mutual agreement of himself and the Centre. 24 The bail conditions were varied to permit him to live at home with his mother. He attended for drug and alcohol counselling at the Orange Community Health Centre and at meetings of Alcoholics Anonymous. The drug and alcohol counsellor reported that the applicant had responded very well to rehabilitation and had gained his sobriety. It was important to keep it. The applicant had conducted himself well and constructively since returning home in October 1997. 25 There were encouraging rehabilitation prospects. He had work and had co-operated with the Community Service. The judge found special circumstances based on the applicant's youth and aboriginality. 26 In determining the applicant's sentence, the judge specifically took into account the period which the applicant spent in custody after his arrest. He does not mention having made any allowance for the five and a half months which the applicant spent in the Second Hand Rehabilitation Centre, although he discussed the applicant's period there. In assessing the length of the sentence the judge probably did not make any allowance for the period which the applicant spent in the Centre. 27 Counsel for the applicant emphasised the youth of the offender, and was right to do so. She complained that the judge placed undue emphasis on general deterrence and not enough emphasis on the rehabilitation of the applicant. The judge was concerned about matters of general deterrence. However, towards the end of his judgment, he emphasised the youth of the applicant. Counsel's complaint was that he only dealt with the matter when considering special circumstances. The judgment was short and I do not think the judge was bound to repeat everything. 28 Counsel also complained that the judge did not assess the length of the head sentence or the total sentence by reference to the subjective features, but I do not think that that complaint is made good. 29 I think that the errors identified and which I have accepted mean that this court should re-sentence. 30 Having regard both to the objective seriousness of the offence and the subjective features, I do not think that it would be possible to start with a lower full term than four years and I regard a minimum term of two years, having regard to the special circumstances, as correct. 31 The sentences imposed should have reflected the period spent in pre-trial custody and a portion of the period spent in the Rehabilitation Centre. I would allow one month, three days custody in full and a further period of three months for the period spent in the Rehabilitation Centre, making a total of four months, three days. 32 The report of Ms Margaret Johnson, Consultant Psychologist recounts much of what is already in evidence. She notes the applicant's expressions of remorse, the difficulties which he has experienced in prison and his plans for the future. An uncle has offered him work at a local vineyard. The applicant has sought expert help in gaol and completed a number of courses designed to increase his literacy, numeracy and communication skills. He has also completed other courses. All of this is commendable, but neither this material nor that in Ms Johnson's report would lead me to reduce the sentence which I would propose. 33 I would grant leave to appeal and allow the appeal to the extent of back-dating the sentences as indicated. In lieu of the starting and finishing dates specified by the Judge, I would impose a sentence of four years penal servitude comprising a minimum term starting on 25 July 1997 and ending on 24 July 1999 and an additional term of 2 years starting on 25 July 1999 and ending on 24 July 2001. The applicant will be eligible for release on parole on 25 July 1999. 34 SIMPSON J: I agree. The orders of the Court will be as proposed by Justice Smart.