R v Smith [2017] NSWSC 900

Supreme Court New South Wales

Medium Neutral Citation: R v Smith [2017] NSWSC 900 Hearing dates: 29 June 2017 Decision date: 06 July 2017 Before: Button J Decision: (1) Ryan James Smith, you are convicted of the offence of hindering the discovery of evidence of the serious indictable offence of reckless wounding. (2) I sentence you to a non-parole period of 8 months, commencing on 3 April 2017, to be followed by a parole period of 7 months, expiring on 2 July 2018. (3) The date upon which you will be released to parole is 2 December 2017. Catchwords: CRIMINAL LAW – remarks on sentence – offence of hindering the discovery of evidence of a serious indictable offence – plea of guilty on day of trial for a more serious offence Legislation Cited: Crimes Act 1900 (NSW), s 315(1)(b) Category: Sentence Parties: Regina Ryan James Smith Representation: Counsel: R Herps (Crown) B Nield (Offender)

Solicitors: Office of the Director of Public Prosecutions (Crown) Lindeman Lawyers (Offender) File Number(s): 2014/344612 Publication restriction: Not to be published until the conclusion of the trial of R v Sheiles (aka Gilson) (2014/344391).

Judgment Objective features 1. On 21 November 2014, Mr Ryan Smith (the offender) was approached out of the blue by his then romantic partner of about two years. Although she was in something of a state of shock, she gave him to understand that she had stabbed somebody and showed him a large, bloodied carving knife. Far from calling the police, the offender assisted her to wash herself with water by holding a hose for her as she did so. He then proceeded to bury the knife, and other items that he feared could implicate his partner, in two separate holes located some distance from the isolated rural shack in which he was living at the time. 2. Later on the same day, he spoke to police, and told them at least one lie about the items that he had hidden, partly to protect his partner and partly, by that stage, to hide his own criminality. 3. Later again on the same day, when the police informed him that the victim of the stabbing had in fact died as a result of it, he realised the gravity of what he had done. He told the police the truth, and showed them where he had hidden the various items. In the process, the police became aware of a cannabis crop that had been growing on the property, with the result that he ended up being incarcerated for two offences to do with cultivating a prohibited plant. Maximum penalty and other matters 1. The count on the indictment to which the offender pleaded guilty before me on 26 June 2017, of hindering the discovery of evidence of a serious indictable offence, namely reckless wounding (contrary to s 315(1)(b) of the Crimes Act 1900 (NSW)), carries a maximum penalty of imprisonment for 7 years when dealt with on indictment. No standard non-parole period has been set by Parliament. 2. It was agreed before me that, on the one hand, the offence is capable of being dealt with summarily. On the other hand, defence counsel accepted that, even shorn of the procedural aspects of the matter that have led to it being dealt with in the Supreme Court, nevertheless it would have been unlikely for the matter to be resolved in the Local Court, in light of its seriousness. Objective seriousness 1. It is true that, oddly enough, this offence against public justice carries a maximum penalty that is half that of, for example, break, enter and steal. That is a matter that I have taken into account. Contrary to the submission of defence counsel, however, I assess this as a serious example of a serious offence, itself intended to deflect the police from investigating the further serious offence that the offender believed had been committed. As I say, whilst it is true that all was revealed before the day was out, what the offender did revealed a degree of cunning, was more than one criminal act, and extended over some time. Subjective features 1. Subjectively, the offender pleaded guilty to the offence on the day that his trial was listed to commence on a more serious count, it having been indicated to my Chambers a few days beforehand that the matter had been resolved. 2. The history of the negotiations that preceded the plea of guilty was placed before me for my assessment. 3. On the one hand, a number of different charges were under discussion, and one knows from experience that the process of consideration of one's position by both parties takes time, both logistically and in terms of reflection. On the same hand, it is quite true that the offender confessed what he had done on the day he had done it, and the physical elements of the offence could never really have been in dispute. 4. On the other hand, the simple fact is that the plea to hindering the discovery of evidence of a serious indictable offence ended up being entered on the day that the matter was listed for trial, and not before then. 5. Giving due weight to the history of the negotiations, and contrary to the submission of defence counsel, I do not accept that the plea should be accorded a utilitarian value above and beyond 15%. 6. Turning to other subjective matters, I accept on the evidence placed before me that the offender has come to see the gravity of what he has done. Indeed, I go further and accept, despite the fact that I have not heard from him directly, that he is remorseful for it. I have come to that view bearing in mind the description he gave to police of how he felt when he was told that the victim had passed away, and the fact that, as I have said, he confessed his criminal actions almost immediately thereafter. 7. I also accept that the offence was completely unplanned, and motivated by a foolish but criminal desire to protect a person whom the offender loved. 8. The offender is now aged 33 years, and was aged 30 years when he committed the offence. For reasons that I do not fully understand, his life has been an unsatisfactory one: he left school early having exhibited learning difficulties; he has engaged in very little employment; he has experienced periods of homelessness; his relationships have been unsettled; he has fathered a child with whom he has no contact; and the chronic abuse of cannabis has been a seriously negative feature of his life since his early adolescence. As I have said, at the time of the offence, he was living in isolated circumstances on a rural property, as I understand it not doing much more than tending his illegal crop, and no doubt smoking a substantial part of it. There were two reports tendered in evidence that confirmed that troubled and troubling overview. 9. His criminal record is also troubling. Although all of the entries in it reflect matters that were resolved in the Local Court, the offender has shown himself to be incapable of complying with the road rules; to be ready to breach court orders in the form of apprehended violence orders and various forms of conditional liberty; and to be a person whose life has not been free of crimes of violence, albeit less serious examples of it. Indeed, at the time of the commission of this offence, he was on bail for an offence of driving whilst disqualified; I regard that breach of conditional liberty as a significant aggravating feature. 10. His mother travelled from Coffs Harbour to give evidence before me at Port Macquarie. She struck me as an honest and thoughtful person who is not fully able to explain what has gone wrong in the life of her son. She spoke of positive aspects of his life, including his care for his grandfather when that gentleman was very ill. I accept that, when the offender is released from custody, she will be a positive influence, and will do the best she can to support him, as she has done in the past. Having said that, until some significant intervention is able to be accepted by the offender, not least with regard to his abuse of cannabis over two decades, I assess his prospects of rehabilitation as guarded. Instinctive synthesis 1. The offender was sentenced in the Local Court on 3 March 2017 for two offences of cultivation. He received wholly concurrent sentences, the longer of which featured a head sentence of 2 years with a non-parole period of 1 year and 4 months, each to commence on 3 March 2016. Those sentences were undisturbed on appeal to the District Court. It can be seen then that the operative non-parole period expired on 2 July 2017, since which date the offender has been bail refused by me. 2. Counsel for the offender submitted that the combination of all of the objective and subjective features would permit me to impose a suspended sentence. I do not accept that submission. It is true that alternatives of that kind have often been imposed for this offence, even in the superior courts. But to my mind, the gravity of what the offender has done calls inevitably for the imposition of a sentence of full-time custody. 3. The ancillary position of defence counsel was that a short head sentence should be imposed; that it should be backdated so that it is partly concurrent with the non-parole period that recently expired with regard to the more serious of the cultivation offences; and that the new non-parole period should be shortened, as necessary, in order to give rise to a ratio between the total non-parole period and the total head sentence (combining the old and new sentences) of not greater than 75%. I did not understand the Crown to dispute any of that submission. 4. Weighing up all of the objective and subjective features of the matter, my own view is that that is the appropriate course for me to adopt; there has been some rounding down of a period of weeks with regard to the utilitarian discount, because the law does not concern itself with trifles. Orders 1. Ryan James Smith, you are convicted of the offence of hindering the discovery of evidence of the serious indictable offence of reckless wounding. 2. I sentence you to a non-parole period of 8 months, commencing on 3 April 2017, to be followed by a parole period of 7 months, expiring on 2 July 2018. 3. The date upon which you will be released to parole is 2 December 2017. 1. To express my orders another way, the offender is sentenced to a head sentence of 1 year and 3 months, with a non-parole period of 8 months, backdated to make it partly concurrent, to the extent of 3 months, with his pre-existing non-parole period, and extending his mandatory period in custody by 5 months. 2. Were it not for the plea of guilty, I would have imposed a head sentence of imprisonment for 18 months.