Regina v David Charles Smith [2001] NSWCCA 420

New South Wales Court of Criminal Appeal

CITATION : Regina v David Charles Smith [2001] NSWCCA 420 revised - 2/11/2001 FILE NUMBER(S) : CCA 60783/01 HEARING DATE(S) : 15/10/01 JUDGMENT DATE : 15 October 2001

PARTIES : David Charles Smith (Applicant) Regina JUDGMENT OF : Grove J at 1; Bell J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/31/0235 LOWER COURT JUDICIAL Nield DCJ OFFICER :

COUNSEL : I H McClintock (Applicant) R A Hulme (Crown) SOLICITORS : D J Humphreys (Applicant) S E O'Connor (Crown)

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 MacAdam-Kellie (2001) NSWCCA 170 CASES CITED: R v Azar (1991) 56 ACrimR 414 R v Fernando (1992) 76 ACrimR 58 R v Thomson and Houlton (2000) NSWCCA 309; 49 NSWLR 383 DECISION : Application for leave to appeal granted; Appeal allowed; Sentence imposed in the District Court quashed and in lieu thereof the applicant is sentenced to a term of four years imprisonment to date from 9 November 2000 and to expire on 8 November 2004; A non-parole period of two years, the first date on which the applicant would be eligible for release on parole would, accordingly, be 8 November 2002.

IN THE COURT OF CRIMINAL APPEAL 60783/00 GROVE J BELL J

MONDAY 15 OCTOBER 2001 REGINA v DAVID CHARLES SMITH

Judgment 1 GROVE J: I will ask Bell J to give the first judgment. 2 BELL J: This is an application for leave to appeal against the severity of a sentence imposed upon the applicant in the District Court at Gosford on 29 November 2000. The applicant had previously adhered to a plea of guilty entered before the Magistrate and been committed for sentence on one charge of maliciously inflicting grievous bodily harm contrary to s 35 of the Crimes Act 1900. This offence carries a maximum penalty of seven years imprisonment. 3 The victim of the assault was the applicant's wife, Kim Maree Smith. The applicant asked the sentencing judge to take into account one charge of knowingly contravening a prohibition specified in an apprehended domestic violence order on a Form 1 document pursuant to the provisions of s 33 of the Crimes (Sentencing Procedure) Act 1999. This latter offence was connected with the principal offence. It occurred on the same day and brief particulars of it set out in the Form 1 document assert that the applicant did breach an order by stalking the victim, Kim Maree Smith, by waiting in the vicinity of her home. 4 The applicant was sentenced to a term of four years imprisonment, deemed to commence on 9 November 2000 and to expire on 8 November 2004. A non-parole period of three years was specified. The sentence was backdated in order to give the applicant full credit for a short period of pre-sentence custody prior to his release on bail. 5 The applicant assaulted his estranged wife at about 3 am on 19 March 2000 in the driveway of her parents' home in Moana Street, Woy Woy. His Honour's narrative of the facts was as follows: "The prisoner, when armed with two knives, attacked the complainant as she was walking from the roadway along the driveway to her parents' home, and he pushed her face onto the ground a number of times. Then he dragged her to a cyclone mesh fence and pushed her face against it a number of times. Then he dragged her to her parents' home's front door and, after smashing open the front door, he dragged her inside and he banged her head against the home's floor a number of times." 6 His Honour noted that the complainant's injuries were detailed both in the report of ambulance officer Dixon and in the statement of Dr Pepper. The ambulance officer set out in his statement his observations of the complainant when he arrived at the Moana Street premises. Mrs Smith was sitting on the back step bleeding from a deep laceration to the right cheek. She had a laceration to the right wrist and multiple lacerations to the left hand and fingers. She was complaining of pain to her right shoulder. She also had abrasions to the left side of her nose. She was complaining of pain and had swelling to the cheek and mandible region. She had lost approximately 400 millilitres of blood. 7 Dr Pepper examined Mrs Smith following her admission to the Gosford Hospital. He noted that she was suffering multiple lacerations to the left wrist and right hand. Her injuries were consistent with being caused by a knife. In particular, Dr Pepper noted a laceration to the digital nerve to the right hand, a laceration of the median nerve on the left wrist, laceration of tendons on the left wrist, (these being further described in the report) and a laceration to the right side of the face, involving nerve and muscle injury. Surgical repair was required for these injuries. 8 Mrs Smith's condition improved and she was discharged on 22 March 2000. Dr Pepper's prognosis as to the injury to the right hand was good. The injury to the left hand was described as being severe, with a degree of permanent dysfunction being highly possible. 9 In written submissions Mr McClintock, who appears on behalf of the applicant, identified a number of grounds of challenge to the sentence. 10 The first contended that the sentencing judge fell into error in the approach taken to the discount for the applicant's plea of guilty. It is said that the sentencing judge took into account his assessment of the strength of the crown case in determining the discount to be given on account of the utilitarian value of the plea of guilty. 11 The discount to be allowed in recognition of the utilitarian value of a plea of guilty does not take into account a consideration of the strength of the Crown case. This latter factor is relevant to the extent to which the plea might additionally evidence the prisoner's contrition for his or her offence; R v Thomson and Houlton (2000) NSWCCA 309; 49 NSWLR 383, per Spigelman CJ at [136] and [137]. 12 It is appropriate to refer to the sentencing judge's remarks on this topic: "He pleaded guilty before a Magistrate in the Local Court at Gosford on his first appearance after the Crown's brief of evidence was served on him and he maintained his guilty plea on his appearing before me in this Court for sentence. I intend to discount his sentence by 20 percent on account of his guilty plea. I point out, however, that the Crown's case against him was strong to the point of being overwhelming and that, realistically, he could not have done otherwise than pleaded guilty." 13 The Crown contends, in written submissions, that his Honour's reasons concerning the discount were not attended by error. In this respect it is noted that his Honour referred to the fact that the applicant had pleaded guilty on his first appearance after the Crown's brief of evidence had been served on him, and that he had maintained that plea thereafter. His Honour went on to indicate a discount within the range promulgated in the guideline judgment. In the Crown's submission the reference thereafter to the strength of the Crown case is to be seen as being allied to his Honour's consideration of the question of contrition. 14 I am unable to accept that submission, having regard to the structure of his Honour's reasons. After setting out the facts and noting the contents of the medical evidence, and the victim impact statement, his Honour said that he would "take into account the following factors and features". He then set out fifteen considerations under subheadings. Factor 11 was headed "The prisoner's plea" and it included the reference to the strength of the Crown case to which I have referred. Factor 12 was headed "Contrition" and in this context his Honour indicated a willingness to view the plea of guilty as evidencing contrition. 15 I am persuaded that in the context of considering the discount appropriate to reflect the utilitarian value of the plea of guilty, his Honour wrongly took into account his view that the Crown case was an overwhelmingly strong one. 16 In the Crown's submission, if his Honour did err in this respect, it was not a matter which warrants this Court's intervention. The Crown submits that the discount is at the upper end of the scale promulgated in the guideline judgment. The two circumstances which are of significance in determining the appropriate level of discount identified in Thomson and Houlton are (i) the time at which the plea was entered and (ii) the complexity of the issues about which evidence would have to be gathered and adduced in the absence of the plea. 17 The applicant entered his plea of guilty in this case on the first occasion in the Magistrate's Court after the Crown brief had been served on him. There is nothing about the matter of any particular complexity or to suggest that it would have been a lengthy trial had the applicant chosen to defend it. It is submitted that a discount of 20 per cent, in the circumstances, of this case might be thought to be appropriate upon a correct application of the principles in the guideline judgment. I accept that is so. 18 However, since I am of the view that the applicant has made good his challenge that the sentencing judge erred by taking into account an irrelevant consideration in the assessment of the discount, I consider that he should be granted leave and that this Court should embark on the exercise of re-sentencing him, unless we are of the view that a sentence less severe is not warranted in law. 19 In this regard, it is appropriate to refer to the material which was before the sentencing Court, together with some additional evidence which has been placed before us, relating to the applicant's background and subjective circumstances. 20 The pre-sentence report records that he is the third of six children. He was raised by his parents. His mother died three years prior to the preparation of the report. The applicant was said to continue to enjoy good relations with his father and siblings. He had been married for fifteen years prior to the commission of the subject offence, and had been living in a de facto relationship with his wife for four years prior to that. The pair separated in September 1999. There were two children of the marriage, aged fifteen and eighteen years. The applicant had been employed as a Corrective Services officer for seven years prior to appearing for sentence. 21 A report of Dr Roberts, psychiatrist, of 22 August 2000 was also in evidence before the sentencing judge. That set out some further details concerning the applicant's background. He is an Aboriginal man, born at Warren. He grew up on various properties. It appears that his mother died as the result of heart disease and that his father also suffers from heart problems. During his childhood it would seem that the father worked as a station manager. 22 The applicant left school at the age of sixteen, without obtaining his School Certificate. He attended the first two terms of year 10, but not the final term. After leaving school he worked both as a labourer and as a concreter. In the latter regard, he was employed for some six and a half or seven years with the Monier company. Additionally, he obtained his ticket to operate front end loaders, cranes and forklifts. 23 Throughout the applicant's adult life it appears that he has always been in employment and that he has always found himself in a position where he has been able to choose from a number of jobs. 24 The applicant described no significant medical history during his consultation with Dr Roberts. There was some material to suggest that he may have suffered from attention deficit disorder as a child, although it does not appear that the doctor considered that to be of particular significance in relation to the commission of the subject offence. 25 The applicant reported that he had not smoked cigarettes for some thirteen years. He was not assessed as having any problem either with addiction to alcohol or prohibited drugs. He was not been affected by alcohol at the time of the commission of the offence. He had last consumed alcohol on the previous Friday evening when he drank two light beers. 26 At the time of the incident, the applicant appears to have been suffering from depression for which he was taking prescribed medication, including Serepax, Mogadon and a drug called Endep. 27 In Mr McClintock's submission, this somewhat scant material relating to the applicant's background (which established that he had been raised in the country, with relatively little education, and that he had embarked upon a relationship and the fathering of children at an early age) were in the context of his Aboriginality, matters which were to be taken into account in sentencing in the light of the principles enunciated in R v Fernando (1992) 76 ACrimR 58. 28 I am not persuaded that there is any feature of the applicant's upbringing or background referable to his Aboriginality which relevantly serves to explain the commission of this offence. He has no history of drug or alcohol abuse. Much to his credit, he has always been in employment. His background does not suggest the pervasive pattern of alcohol abuse, violence, social and economic deprivation that characterises some Aboriginal communities where, as Wood CJ at CL observed in Fernando: "poor self image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects". 29 Mr McClintock further submitted that a sentence of four years, taking into account a discount for the plea of guilty was, in the circumstances, manifestly excessive. In this respect Mr McClintock notes that the applicant is, for all practical purposes, a first offender. The maximum penalty is one of seven years imprisonment. 30 The sentencing judge described the offence as being unprovoked, vicious, prolonged and cowardly. He noted it was planned in the sense that the applicant had armed himself with two knives and gone to the complainant's home, where he had lain in wait for her (so much is acknowledged by the offence taken into account on the Form 1). 31 I respectfully agree with his Honour's observations concerning the nature of the offence. It was an objectively most serious offence of maliciously inflict grievous bodily harm. It was accompanied by features of aggravation which this Court has noted are deserving of condign punishment; namely, that he was armed with knives at the time of the commission of the assault R v Azar (1991) 56 ACrimR 414; and that the assault occurred at a time when the victim was the subject of an order made by the Court for her protection; MacAdam-Kellie (2001) NSWCCA 170. 32 In my view, a sentence of four years imprisonment, taking into account the discount for the plea of guilty, which I would quantify in an amount of 20 per cent, (taking into account the two factors to which I have referred, identified by the Chief Justice in Thomson and Houlton) is an appropriate sentence. 33 That brings me to the next matter the subject of Mr McClintock's submissions, which relates to the structure of the sentence. The sentencing judge observed: "If sentenced to imprisonment he will be at risk from other prisoners and, being at risk, he will need to serve a prison sentence on protection, something which is recognised as making imprisonment more onerous than it should be otherwise." 34 In the event, on the material before him, his Honour did not conclude that this was a basis for a finding of special circumstances. 35 On the hearing of this appeal there has been placed before us the affidavit of the applicant sworn on 1 October 2001. That recites that the applicant has found his time in custody to be very difficult. He says this is particularly because he is an Aboriginal former prison officer. He deposed in these terms: "When I arrived in custody, I received a lot of verbal abuse and I was called a 'black screw'. Most of this abuse came from Aboriginal inmates who did not like one of their own being a former prison officer. Because I am a former prison officer, I am restricted as to where I can go in the gaol system, and who I can associate with. I don't have much to do with other Aboriginal inmates because I feel at most risk amongst this group of inmates. I have also received verbal abuse from inmates who recognise me from when I was a prison officer at Long Bay Correctional Centre. Because of this abuse and threat to my safety, I have to remain on protection." 36 I should also note the further evidence placed before this Court on the applicant's behalf. That includes a further affidavit sworn by him on 15 October 2001, which states that he is currently receiving medication; namely, Endep 50, and Temazepam on a daily basis. He says that without that medication he is not able to sleep and that he is suffering from depression. He is also on medication for migraine headaches. 37 A further affidavit was read on the applicant's behalf, affirmed by his solicitor, Suzanne Leal. She annexed a number of documents obtained from the Department of Corrective Services pursuant to a Freedom of Information Act request. These record that the applicant has successfully completed an anger stress management course, a course offered by the Adult Education and Vocational Education Institute in Art and that he has attended an anti-violence program named, "Enough is Enough". A number of case notes prepared by staff at the Berrima Correctional Centre are also annexed to Ms Leal's affidavit. 38 In assessing the extent to which, if at all, this Court upon a re-sentencing of the applicant should take into account his conditions of custody the Crown Prosecutor drawns attention to the case notes. From these it appears that whilst a protection prisoner the applicant has undertaken a number of courses and that on one occasion he had access to the outside community when he accompanied an officer to the Naidoc Art Exhibition sponsored by the Wingecarribee Council. 39 It is to the applicant's credit that he has approached his period in custody thus far as constructively as the case notes record. This does not detract from the circumstance attested to in his affidavit that he has suffered abuse by reason of being an Aboriginal former prison officer, nor does it detract from the evidence that he is restricted in his movements within the prison and in the number of prisoners with whom he is able to associate. 40 The applicant does not derive much in the way of support from fellow Aboriginal prisoners for the reasons he adverts to in his affidavit. There is support for this in passages in the case notes, which record, for example, that on 30 May of this year the applicant was spoken to by a prison officer, who asked him some questions concerning activity in the screen shop. The applicant is recorded as saying that he knew nothing because he was keeping to himself as he was "getting a hard time off the inmates" in the screen shop. He expressed concerns that he was being set up. There is material of that character in the case notes. 41 In my view, the fact that the applicant is an Aboriginal former prisoner officer has worked to make his conditions of custody more onerous than those which might be experienced by an inmate in the ordinary course. 42 In the circumstances of this case, I am persuaded that special circumstances have been made out for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999, those special circumstances being that the applicant has been harassed by inmates during his custody to date and it is reasonable to assume that, but for his continued status as a protection prisoner, this would continue throughout his sentence. The applicant is necessarily isolated from other Aboriginal prisoners, having regard to his employment history. 43 For these reasons, the orders that I would propose are that the application for leave to appeal be granted, that the appeal be allowed, that the sentence imposed in the District Court be quashed and in lieu thereof, that the applicant be sentenced to a term of four years imprisonment to date from 9 November 2000 and to expire on 8 November 2004. I would specify a non-parole period of two years. The first date on which the applicant would be eligible for release on parole would, accordingly, be 8 November 2002. 44 GROVE J: I agree with Bell J. The orders of the Court will be as she has proposed. **********