CRIMINAL LAW - Break and enter a dwelling house with intent to commit a serious indictable offence - Assault occasioning actual bodily harm
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CRIMINAL LAW - Break and enter a dwelling house with intent to commit a serious indictable offence - Assault occasioning actual bodily harm
Judgment (3 paragraphs)
[1]
Remarks on Sentence
On 12 March 2008, following a trial commencing on 27 February 2018 the Offender Jarrod Smith was found Guilty of two offences in the following terms:-
1. On 22 July 2016, in North Richmond in the State of New South Wales Jarrod Smith did break and enter into a dwelling house with intent to commit a serious indictable offence namely intimidation in circumstances of aggravation, namely that he knew a person was present within the dwelling house contrary to s 113(2) of the Crimes Act 1900.
2. On 22 July 2016, in North Richmond in the State of New South Wales, Jarrod Smith did assault Brodie Symington, thereby occasioning actual bodily harm contrary to s 59(1) of the Crimes Act 1900. [1]
Following the jury's verdicts, I granted the Crown's detention application.
The matter was thereafter adjourned until 25 May 2018 for sentence submissions and a pre-sentence report was ordered. [2]
Consistent with the jury's verdicts, the facts on which the Offender is to be sentenced are largely not in dispute and based on an acceptance of the evidence of the victim.
On 22 July 2016, the victim was at his home alone when he heard a bang on the door, of which he initially ignored. He then heard a louder bang and went to the door and said "who is it?" A male voice replied, "Cowboy." The victim then opened the door and there was no one directly in front of him, but he saw a male person walking what he described as "up the hill" to the side of the road where a white ute was parked. The victim identified a person walking away from the house towards the front of the ute. He then noticed the Offender coming from the right side of the house and realised that he was approaching him, where he was standing. The victim then closed the front door and then stepped back from it into the hallway from where he heard three loud bangs. On the third bang, the door swung open. The Offender then entered the house and approached the victim, grabbing the back part of his hoodie, before pulling his head down and dragging him out of the house to the front step - towards the ute. The person who he had earlier seen walking towards the ute was sitting in the car. This was Count 1 on the indictment.
The evidence of the victim was that the Offender then asked him about how many people he owed money to and that he described, "…basically [being] hit on the right side of the cheek by the Offender's right fist." He stated that in total, he was struck 5 or about 5 times. During the course of the striking, the victim stated that he was asked whether he knew a person named Mitchell McLaughlin and he responded, "yes," before adding "that's not my debt" before he was struck again. The Offender is said to have asked the victim "are listening? Are you listening now?" to which he responded, "yes." The Offender also stated, "when I get involved, things like this happen." The circumstances in which the Offender is said to have ceased his assault was when the person sitting in the car, got up out of the passenger seat, grabbed him and said "that's enough, Cowboy." At around that time, the victim observed another person sitting in the vehicle, who he considered as a friend of his at the time.
Photographs of the victim's injuries were taken on the night of the incident and were tendered as Exhibit E. The victim saw his doctor on 26 July 2016. There was no issue in the trial that the injuries constituted actual bodily harm. This constituted Count 2 on the indictment.
Although the victim gave evidence that money was demanded at the time of the Count 2, the Crown acknowledged that the motive for the assault upon the victim cannot be established beyond a reasonable doubt. Regardless, to the extent the demands encompass a more serious offence the offender is to be sentenced only for that for which he has been convicted and not a more serious offence in accordance with R v De Simoni. [3]
It was acknowledged that "Cowboy" was a name that the Offender was known by.
The Offender's case was that he was not present on the occasion in question. This was rejected by the jury.
Neither offence carries a standard non-parole period.
In relation to both offences, the Crown conceded that they were largely spontaneous and impulsive. No aggravating factors pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 were advanced. [4] In particular, no argument was raised that the offence was aggravated as being committed in company for the purpose of s 21A(2) of the 1999 Act.
The circumstances of aggravation contained in Count 1 were described on the indictment as the Offender knowing that there was a person in the dwelling house where the offence is alleged to have been committed. However in the context of where the offence itself involves an intention to intimidate, this circumstance of aggravation does not add any additional factor to the criminality of the offending.
The serious indictable offences covered by s 113(2) of the 1900 Act extend to offences punishable by up to 5 years imprisonment to those punishable by a life sentence. [5] The serious indictable offence in this instance is intimidation which pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 carries a maximum period of 5 years imprisonment and/or 50 penalty units. By reference to maximum penalty, such a serious indictable offence lies at the lower end of offences contemplated by s 113(2). However whilst the seriousness of the "serious indictable offence" in terms of maximum penalty is an appropriate matter to take into consideration, this factor alone is not determinative of the gravity which requires consideration of all the facts and circumstances of the offence and the range of offences of its kind which come before this Court. [6]
Count 1 was strictly indictable. The Defendant conceded that Count 2 could have been dealt with summarily.
In relation to Count 2, I am satisfied beyond reasonable doubt that the Offender inflicted more than one strike on the victim. The precise number cannot be determined, however I accept that it was a low number.
The injuries noted in Trial Exhibit H by Dr Guneratine were described as "a facial injury, bruising around the right eye, inferiorly, [with] no visual disturbance." Dr Guneratine noted that no other injuries were found.
The Defence submitted a report of Dr Martin, Forensic Psychiatrist, which was marked Exhibit 1. In that report, under the heading, medical history, the following was recorded:-
"Of note, he sustained traumatic brain injury at the age of twelve with a decreased level of consciousness following a skateboard injury, requiring inpatient admission and investigations. He said that following this that "everything changed" and he said that he felt different and unable to do contact sports. He described having memory problems following this. He said that he had a temper problem since and can have a short fuse. He denied having neurocognitive testing subsequently. The subpoenaed documents enclosed corroborate a relatively serious head injury although note that the CT imaging was essentially normal and that he was discharged without obvious major cognitive impairment or follow up." [7]
Under the heading of "Opinion", Dr Martin recorded:-
"It is plausible that having had a head injury at the age of twelve, he had been prone to being impulsive and not considering consequences of actions. Neuro-cognition had not been formally assessed apparently and it would be interesting to know how he performed with psychometric testing performed by a neuropsychologist, to see if there are objective cognitive deficits.
…
Inferred from his criminal history and from the documents you have sent, my formulation that Mr Smith is pre-disposed to impulsive behaviour. This would obviously be worsened by substances use and it is plausible that the brain injury at the age of twelve had contributed partly by making him more prone to acting impulsively and exercising poor judgment. He clearly had a vulnerability to using substances including alcohol and alcohol is known to inhibit a person and cloud their judgment making them more likely to behave recklessly or violently." [8]
The Defence submitted that the critical life incident impacted on the Offender's ability to curb impulsive behaviour and has led him to exercise poor judgment. The Crown submitted that the evidence does not satisfy any such conclusion particularly bearing in mind that the Offender's CT imaging was essentially normal and he was discharged without obvious major cognitive impairment or further follow-ups.
In assessing this matter, I have noted that the formulation referred to above by Dr Martin was described as "plausible." I have also noted that formal neuro-cognitive examination has not been undertaken and was outside of the expertise of Dr Martin, whose examination was limited to an audio-visual assessment. In the circumstances and based on the evidence before me, I am unable to accept the Defence submission.
At the time of the offences, the pre-sentence report records that Mr Smith acknowledged that he was spending time with pro-criminal peers and illicit drug-users. The report records that the magnitude of the length of time between substance use and offending is unclear, however it was a factor related to the offending. To the extent that this is so, I am unable to take it into account, pursuant to s 21A(5AA) of the 1999 Act.
Whilst it is unnecessary to make a specific finding as to objective seriousness in these circumstances, [9] I am satisfied that the salient feature of the offences as noted above place both offences at the lower end of the spectrum of offending as contemplated by the respective sections. [10]
Insofar as the Offender's criminal antecedents are concerned, [11] it shows a relatively short history of offending including an offence of assault occasioning actual bodily harm on 19 October 2012, in respect of which, the Offender ultimately came to receive a s 9 Bond for 12 months following a call-up of a s 10 Bond. This was followed, on 25 October 2013 by offences of destroy or damage property; enter enclosed land or not prescribed premise without lawful excuse; stalk and intimidate intending fear of harm and destroy or damage property. These offences were dealt with by fines in the first two matters, a s 9 bond and a community service order respectively.
The Defence concedes that the Offender's criminal history is not perfect but is also not substantial. Overall, I would accept that the level of past offending is not significant for the purposes of s 21A(3)(e) of the 1999 Act.
Nevertheless, the Offender's criminal antecedents do not enable a finding of previous good character.
Mr Smith was found Guilty following trial before a jury of twelve. No discount on sentence is therefore available to the Offender.
Despite the jury's verdict, the Offender maintains his innocence.
I am unable to find remorse pursuant to s 21A(3)(i) of the 1999 Act.
Born in Blacktown, the Offender's childhood was described in Dr Martin's report as "pretty good." Denying major trauma or abuse prior to his brain injury. He denied problems with his parents and said that he was successful at school prior to injury and had been vice-captain in Grade 6 and had been good at sports. Following the accident, he said he had difficulties concentrating and had short term memory problems. He left school in Grade 10 and worked in a variety of manual roles including air-conditioning, gyprocking, concreting and at a butcher shop.
According to the pre-sentence report, Mr Smith described as somewhat of a sporadic work history, in predominantly manual labour roles until he secured his current employment with a turf supplier in 2012. His employer to confirmed to Community Corrections that Mr Smith spent a period of approximately 12 months in 2015 away from their company, having been terminated due to drug use. He subsequently returned in 2016 as a full-time employee following a period of residential rehabilitation and it was noted that they would continue to offer him employment upon his release from custody as he was a valuable member of the team.
Before the Court was reference from Pauline Saliba, the Manager of Qualturf Pty Ltd which is marked as Exhibit 3. Ms Saliba speaks positively of the Offender's work, describing him as integral part of the team, taking tasks such as harvesting turf. She described his as an asset to the business, helping to maintain products and services to a high standard. She describes the Offender as easy to communicate with, able to assist other staff to accommodate the various requirements to ensure the needs of clients and business are accomplished. It is also recorded that Offender takes part in training an under 5s rugby league team after work and during the weekend.
In Exhibit 4, Mr Graham Rogers describes knowing the Offender for 3 years through Rugby League. He states that though he does not condone any wrongdoing, believes the Offender has much to offer the community, himself and the football club and most of all to his girlfriend and baby that is due shortly. He states that he has no hesitation in supporting the Offender at this time.
The Offender is now aged 27 and engaged with a fiancé who was residing with him prior to him re-entering custody following the revocation of his bail. The presentence report records that the Offender would be returning to reside with his partner upon release and that they are expecting a baby in July 2018. It also records the Offender as a step-father to his partner's son from a previous relationship.
The pre-sentence report records that the Offender described himself as the "black sheep" being the only member of his family who has a criminal record. He attributed is criminal behaviour and illicit drug-use to the accident when he was 12.
However Dr Martin records that the Offender first used cannabis at the age of 16, graduated to using various drugs including Cocaine, Ecstasy and LSD. He stated that he used ICE regularly from about the age of 24 though denied intravenous use. He recorded that his last use of methlyamphetamines was on 1 November 2015, prior to residential rehabilitation, however he described regular use of alcohol and occasional binges. He said that he drank one or two drinks most days and described frequently drinking more and said that he had drunk multiple drinks on the day of the offending.
The pre-sentence report records that the Offender commenced using Methlyamphetamines in 2010 on a recreational basis. This drug-use escalated and in 2015, he lost his employment due to drug-dependency. [12]
The report records that in relation to this offence and previous offending alcohol and illicit drugs appear to be a factor in all convictions. Whilst the Offender denied involvement in the offences for which he is to be sentenced, he did express a motivation to engage with the community corrections as directed. The report records that the identified criminogenic needs are alcohol/drug problems and attitude/orientation. [13]
Previous community-based orders in 2014 were successfully completed and the community service order was engaged as directed with supervision and case planning objective including alcohol intervention resulting in supervision being terminated early in December 2014.
Thereafter, the Offender did enter into residential rehabilitation at Dooralong Transformation Centre from the 10th November 2015 until 6 June 2016. Exhibit 2 records that he was compliant in all areas of the programme. The Senior Case Worker Mr Grant Hume speaks positively of the Offender's engagement.
The Offender has insight into factors behind his offending background even though he has not accepted responsibility of the offences. In the pre-sentence report he has acknowledged that he has relapsed since admission to Dorralong. [14] Such an occurrence is not unknown or uncommon. I accept he remains committed to try again.
Insofar as his time in custody is concerned, the Offender is recorded by Dr Martin, as coping and denied specific and personal problems. He said that he is able to sleep well with the benefit of medication and that during the day, he works in a lolly shop in jail and trains physically. Dr Martin records that the Offender did not present as severely depressed which was probably attributable to his abstinence from substances and prescribed anti-depressant medication and having some protective factors such as a sustainable relationship. [15]
Although the pre-sentence report records the Offender as experiencing suicidal ideations and making attempts on his life when unmedicated, the report also records that he had such feeling recently when there was delay in receiving medication upon reception into custody. Nevertheless, he reported being stable at the present time and was noted to express pride and resilience with incarceration. [16] Overall, while I bear in mind the Offender's medical circumstances by way of background, I am satisfied that the Offender's medical condition was not such as to make the sentence of imprisonment more burdensome than would otherwise be the case.
The pre-sentence report records the likelihood of reoffending as a low to medium risk. [17] I accept this but I am also satisfied that the Offender has good prospects of rehabilitation bearing in mind that he has a supportive partner, family and pro-social life influences, employment, accommodation and a commitment to address issues relating to substance abuse and engage with community corrections.
In light of his relative youth, the fact that this represents the Offender's first time in custody and, the good prospects of rehabilitation and benefits of a longer period on parole, I am satisfied that it is an appropriate case to find special circumstances. [18]
In sentencing the offender, I have regard to the maximum penalties in respect of Counts 1 and 2 on the indictment, as 14 and 5 years imprisonment respectively.
In sentencing the Offender, I have regard to the purposes of sentencing in s 3(1) of the 1999 Act. There is a need for the sentence to provide for general deterrence. The need for specific deterrence is ameliorated by his background and the fact that this is his first sentence of imprisonment. The harm to the victim and the community whose laws have been violated must be recognised. These are serious offences. Persons residing in their homes have a right to expect their safety and security is not interfered with These offences involved damage to property, injury and distress to the victim. The Offender needs to be punished, made accountable and his behaviour denounced. The needs of rehabilitation with be fostered by the provision of an extended period on parole under supervision and the recommendation I will make as to the circumstances of the Offender's incarceration.
I am satisfied that only penalty other than full time imprisonment would meet the purposes in s 3(1) of the 1999 Act.
The Offender came into custody when charged with this offence and remained in custody for a period of one month and 26 days from 27 July 2016 to 19 September 2016. His bail came to an end on 12 March 2018 and he has remained in custody since that time. In the circumstances, it is appropriate for any sentence to commence from 15 January 2018.
[2]
Sentence
The Offender is convicted on each of the two offences.
I propose to proceed by way of aggregate sentence. The indicative terms I would have imposed are as follows:
1. In relation to Count 1 on the indictment, I would have sentenced the Offender to 2 years imprisonment;
2. In relation to Count 2 on the indictment, I would have sentenced the Offender to 1 year imprisonment.
In considering the principles of concurrency, accumulation and totality there are significant overlapping features of the offending although some accumulation is appropriate to recognise the distinctive features of the offending. [19]
The Offender is sentenced to serve an aggregate term of 2 years and 4 months imprisonment to date from 15 January 2018 and to expire on 14 May 2020.
The Offender is to serve a non-parole period of 15 months to date from 15 January 2018 and to expire on 14 April 2019. He is thereafter to be released to parole under supervision of Community Corrections to serve an additional term of 13 months to date from 15 April 2019 and to expire on 14 May 2020. The earliest release date is to be 14 April 2019.
Although the Offender is now 27 years of age, I would recommend to the Commissioner for Corrective Services that consideration be given to the offender being admitted to the Corrective Services Young Adult Offender's Programme.
[3]
Endnotes
Hereinafter referred to as the "1900 Act"
Exhibit B
(1981) 147 CLR 383
Hereinafter referred to as the "1999 Act"
Crimes Act 1900 (NSW) s 4.
R v Huynh [2015] NSWCCA 220 at [27] (Simpson J with Barr and Latham JJ agreeing)
Exhibit 1, p. 4
Exhibit 1, p. 6
Georgopolous v R [2010] NSWCCA 246 at [30]-[32]
1900 Act ss 59(1), 113(2)
Exhibit A
Exhibit B, pp. 1-2
Exhibit B, p. 3
Exhibit B, pp. 1-2
Exhibit 1, pp. 5-7
Exhibit 1, pp. 1-4
Exhibit B, p. 3
1999 Act s 44
DPP (Cth) v Beattie [2017] NSWCCA 301
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Decision last updated: 03 August 2018