New South Wales Court of Criminal Appeal CITATION: Smith v Regina [2007] NSWCCA 135 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 14/05/07 JUDGMENT DATE: 14 May 2007 JUDGMENT OF: McClellan AJA at 12, 14; Hidden J at 1; Price J at 13 EX TEMPORE JUDGMENT DATE: 14 May 2007 DECISION: Leave granted, appeal allowed: applicant sentenced to 14 months imprisonment, comprising a non-parole period of 8 months to date from 3 November 2006 and a balance of term of 6 months. Applicant to be released on parole on 2 July 2007. CATCHWORDS: CRIMINAL LAW: Sentence - common assault - applicant assaulted disabled woman under his care - whether sentence manifestly excessive LEGISLATION CITED: Crimes Act 1900 PARTIES: Geoffrey Paul Smith (applicant) Regina (respondent) FILE NUMBER(S): CCA 2007/659 COUNSEL: C Davenport SC (applicant) R Herps (respondent) SOLICITORS: S O'Connor - Legal Aid Commission (applicant) S Kavanagh - Solicitor for Public Prosecutions (respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0327 LOWER COURT JUDICIAL OFFICER: Sweeney DCJ IN THE COURT OF CRIMINAL APPEAL 2007/659 McCLELLAN CJ at CL HIDDEN J PRICE J 14 May 2007 Geoffrey Smith v Regina Judgment 1 HIDDEN J: The applicant, Geoffrey Smith, seeks leave to appeal against a sentence passed on him in the District Court for a charge of common assault. He was sentenced to imprisonment for 18 months, comprising a non parole period of 13 and a half months commencing on 3 November 2006, and a balance of term of four and a half months. The offence, under S61 of the Crimes Act, carries a maximum sentence of two years imprisonment. 2 The facts of the matter are distressing and the offence was undoubtedly serious. The applicant was employed as a carer with an organisation known as Life Without Barriers, his primary responsibility being the victim of the assault. She was a young woman with a number of developmental and physical problems. On the occasion in question, which was 28 July 2005, the applicant had driven his sister from Wyong to Royal North Shore Hospital so that his sister could attend a medical appointment there. The victim, the young, disabled girl, accompanied them in the vehicle. Having arrived at the Royal North Shore Hospital the sister went in to attend her appointment and the applicant and the victim remained in the car park area. 3 The victim remained in the tailgate area of the vehicle, which was a station wagon, and she was restrained by one hand to a cargo barrier by a pair of handcuffs. It was the applicant's case that he did not do that, she had done it herself because she had some interest in handcuffs. That is a matter about which the learned sentencing judge gave the applicant the benefit of the doubt. The assault involved his gripping her hair, hitting her head against a side window of the vehicle, and also slapping her in the face. 4 This was witnessed by two people and to some extent was picked up in some security video, although her Honour found that to be unclear. There was no aggressive behaviour on the part of the victim which would appear to have preceded that assault, although it was the applicant's case that she was violent on this occasion and, indeed, she had been on occasions previously. 5 The applicant was 37 years of age at the time of the offence and had no prior convictions. He seemed to have an uneventful upbringing. Sadly, in 1993 both his parents died within a relatively short period. This seems to have given rise to depression, which has stayed with him ever since. He has had a somewhat sporadic employment history in unskilled positions, having been educated to the School Certificate standard only, and in recent years his employment had been primarily as a security guard. 6 He pleaded guilty on his arraignment in the District Court, having been committed to that Court for trial, a matter which the learned sentencing judge took into account, although she did not quantify the discount which that had earned him. 7 There was before her Honour a pre-sentence report and a psychiatric report of Dr Westmore. What emerges from that is that there is a history of depression. It seems that his general level of intellectual function is low. He is a somewhat isolated figure. It was not put on his behalf that that psychological background and that depression specifically gave rise to the offence in question, but it was a relevant part of the background which her Honour had to consider. 8 What Dr Westmore did say was that he felt that the applicant did not have the skills or personality to work as a carer, and that he should not undertake this type of work in the future. It does seem to me to be a reasonable inference on the whole of the evidence. It seems he had some training in handling the unfortunate victim. One wonders whether he was the type of person who ought to have had such responsibility conferred upon him. Her Honour rightly found that this was a case where the victim was vulnerable and that was a further aggravating feature. 9 The only ground of the application is that the sentence is manifestly excessive. In my view, that ground is made out. Indeed, the Crown Prosecutor today very properly acknowledged that her Honour does not appear to have given the subjective case the weight it deserves. Of course, the offence was serious. As I have said, the circumstances are distressing, to say the least. However, her Honour's starting point must have been very close to the maximum, given that an unspecified discount for a plea of guilty had been allowed. 10 What we have is a first offence by a man who has no history of violence, who is in his late 30s, and who is a man who has had his own difficulties in the past and may well have been shouldering a professional responsibility which was beyond his capabilities. In my view, the ground has been made out and this Court should intervene. I would make the finding of special circumstances, given his background and the fact he is likely to need some assistance to readjust to society. Even so, any extension of the normal apportionment between non parole period and head sentence will not be a long period. That is inevitable because the non parole period must itself reflect the gravity of the crime. 11 The orders I make are these: (1) I would grant leave to appeal, allow the appeal and quash the sentence. (2) In lieu, I would sentence the applicant to imprisonment for fourteen months to date from 3 November 2006, comprising a non parole period of eight months and a balance of term of six months. The applicant, accordingly, is to be released to parole on 2 July 2007. 12 McCLELLAN CJ at CL: I agree with Hidden J. It might be that the debate in relation to the impact of the applicant's personal circumstances before the trial judge diverted attention from the impact which those circumstances should have on any term of fulltime custody. Her Honour's remarks on sentence revealed the fact that the debate seems to have centred upon whether or not those personal circumstances justified a Section 9 bond or some other amelioration by way of a suspended sentence. It would appear that as a consequence the impact of his personal circumstances on the term of any fulltime custody may have not been given sufficient attention by counsel and by her Honour. In my opinion the remarks of Hidden J in relation to the problems which have now been revealed and the sentence which his Honour now proposes are appropriate. 13 PRICE J: I agree with Hidden J. 14 McCLELLAN CJ at CL: Accordingly, the orders of the Court are what Hidden J has indicated. ********** 17/05/2007 - Coversheet amendment to District Court Judge - Paragraph(s) 0 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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