R v Smolinksi; R v Steele

R v Smolinksi; R v Steele - [2020] NSWDC 651 - NSWDC 2020 case summary — Zoe

[5]

Sequence 4 (Smolinski)/Sequence 6 (Steele) - Detain person in company with intent to commit serious indictable offence (assault occasioning actual bodily harm)

The offenders Steele and Smolinski discussed what they were going to do with the victim. The offender Smolinski said, "Tie him up, get rid of him. I'll take him to the bush." The victim thought he was going to die. The offenders Steele and Smolinski were saying that they could not let the victim stay or go because he was going to talk. Both offenders interrogated the victim accusing him of sleeping with Steele's ex-partner and taking some of Smolinski's property. The offender Smolinski zip-tied the victim's hands and feet together while the victim was on his bed using industrial style cable ties. While the victim was tied up he was also assaulted.
The victim was able to slip out of the hand restraints quickly but his feet remained tied up for another 15 to 20 minutes. At that point, the offender Steele cut the restraints off the victim's feet with a knife.
During the course of the incident one of the offenders recorded footage of the victim. The footage shows the victim seated up against a wall covered in blood. The victim appears distressed. A male voice can be heard saying, "Smile again for the boys." The victim has his hands up protecting his face and says, "I will." A male voice says, "Say happy days, look at my finger. Peace sign cunt, give us a peace sign cunt." The injury to the victim's little finger is visible and his hand is covered in blood. The camera focuses in on the injury to the victim's finger.
After the victim was untied the offenders Steele and Smolinski became concerned about the victim's injuries. The victim said, "Look, I'll just get in the shower" and he got into the shower and cleaned himself up a bit. The offender Steele helped the victim get dressed and put the victim in his car, which was parked outside, to take him to hospital but his car got bogged.
The offender Steele called a taxi for the victim and he was allowed to walk out the front of the property to wait for the cab. The offenders Smolinski and Steele remained at the property and tried to remove the car from the mud.
The victim decided to walk about 500 metres to the NSW Rural Fire Service Station on Arizona Road, Charmhaven to seek medical attention. The victim arrived at about 9:50am and approached an employee named Kathy Burn. The victim said he needed help and Burn called triple-0 and requested an ambulance. Burn observed cuts on the victim's head and saw that he was cupping his left hand. The victim said, "I think I've lost my little finger, it's just hanging on. I can't touch my hand." The victim eventually sat down and was rocking back and forth. He got a bit teary and said, "I thought they were gonna kill me."
A short time later an ambulance arrived and started treating the victim. Police arrived and saw the victim sitting in the doorway of the ambulance. The victim had a number of injuries, including a large laceration to the middle of his forehead, other smaller lacerations and red marks on his arms, face and head area. The victim's finger was being treated.
Police activated a body worn camera and the victim stated that if he said anything he would be killed. The victim was shaking and upset whilst talking to police.

[7]

Attendance of Police at 120 Arizona Road, Charmhaven

At about 10.30 am, police arrived at 120 Arizona Road, Charmhaven. They saw the offenders using jacks and other equipment trying to free the vehicle that had become bogged. Police told the offenders that they were investigating an assault and cautioned them. Police asked them if they lived at the property and they both said "no". Police asked the Accused why they were at the property and the offender Steele said, "We just came here to clean up for the bloke who leases this place. His lease runs out soon. We've only been here for about 2 hours…We just got here and we got bogged and been trying to get the car out ever since."
Police asked the offender Smolinski if he used to live at the property and he said "Yeah". He was asked if he knew the victim and he replied, "Yeah, I haven't seen him for a while though." Police asked if the victim lived there and the offender Steele said, "No one's supposed to live here. The house is empty and the sheds and the yards are getting cleaned out." Police asked each offender if they knew how the victim received his injuries and the offender Smolinski said "Nuh".
Police observed what appeared to be blood on the offender Steele's right Nike shoe. Police asked him if it was blood and he said, "No, probably just something I stepped in." Police seized the offender Steele's shoes.
Police subsequently entered the shed and went into the victim's bedroom where they observed a large amount of blood smears over the walls near the bed. Police located what appeared to be a small pile of items that had been burnt, including a knife blade.
Both offenders were told that the property was a crime scene and they would need to leave. They both left the property.
Crime scene police attended and examined the property, seizing various items.
Subsequent analysis revealed that the offender Steele's DNA was recovered from a trace swab taken from the bedroom/living quarters in the shed. The offender Smolinski's blood was identified from a blood swab taken from the bedroom/living quarters in the shed.

[12]

Assessment of objective seriousness

Those facts clearly disclose very serious objective criminality. The victim was confronted by the offenders at a time when he was sleeping. He was then struck causing a serious and permanent injury to his finger. Notwithstanding his serious injury and the obvious need for urgent medical attention he was then detained for a number of hours. Both general and specific deterrence are important considerations on sentence.
In assessing the objective seriousness of the offence of recklessly cause grievous bodily harm in company, I have taken into account the general sentencing principles enunciated in Stevens v R [2017] NSWCCA 216 at [40]-[41]. Specifically, I have taken into account the following factors: 1. The victim was struck with a metal bar being swung by the offender Steele that partially severed his right little finger. In circumstances where the offender Steele was responsible for the infliction of the injury, I regard him as more culpable for this offence having regard to his role. 2. Both offenders then continued to assault the victim for 15 to 20 minutes. 3. The offender Steele told police that he swung the metal bar at the victim's hands at least four to six times. 4. There was a threat of further violence. The offender Smolinski said, inter alia, "let's get another one off". 5. The nature of the grievous bodily harm occasioned - The victim suffered a permanent injury in circumstances where he underwent surgery to amputate his right little finger. He spent three days in hospital. 6. Whilst I am satisfied that the offenders attended the victim's premises in order to confront the victim about various grievances, I am not satisfied there was any planning in relation to the commission of this offence.
The Crown submitted that this offending was just in the middle of the range.
Mr Moir of Counsel on behalf of the offender Smolinski submitted that the offending falls at the mid-range.
Mr Healy of Counsel on behalf of the offender Steele agreed with the Crown's assessment of the objective seriousness.
Having regard to above factors, I assess the objective seriousness as being just in the middle of the range.
In assessing the objective seriousness of the offence of specially aggravated detain, I have taken into account the general sentencing principles enunciated in R v Newell [2004] NSWCCA 183 at [32]. Specifically, I have taken into account the following factors: 1. The length of the detention was for several hours. It is agreed between the parties that the offenders arrived at the victim's premises between 3 am and 4 am and the victim arrived at the Rural Fire Service to seek assistance at 9.50 am. 2. At the commencement of the detaining shortly after the victim's finger had been severed, his hands and feet were tied by Smolinski with zip ties. Whilst he slipped out of the hand ties, his feet remained tied for 15 to 20 minutes. While the victim was tied up he was also assaulted. 3. Smolinski said to Steele "get rid of him". The victim thought he was going to die. 4. During the detention the offenders recorded footage of the victim with his injured finger being held up (Exhibit B). During the recording the offenders are making gratuitous remarks to the victim. 5. The particularised purpose of the detention was to commit a serious indictable offence, namely assault occasioning actual bodily harm. The offence of assault occasioning actual bodily harm has a prescribed maximum penalty of 5 years. This is the minimum penalty for an offence to be a serious indictable offence and fall within this offence. 6. The actual bodily harm sustained during the detention (excluding the grievous bodily harm the subject of Sequence 3) - a large laceration to the middle of his forehead, other smaller lacerations and red marks on his arms, face and head area. Hospital records disclose a right black eye and multiple long bruises on his back and multiple lacerations and abrasions to his head and a comminuted fracture of the left orbital floor with partial herniation of the inferior rectus muscle. 7. The co-offender Steele removed the victim's restraints and later attempted to take him to hospital. Once the vehicle became bogged, the victim was released by the offenders.
I regard the offenders as equally culpable for this offending in circumstances where whilst the offender Steele was not involved in tying the victim up, he was involved in the infliction of actual bodily harm.
The Crown, Mr Moir and Mr Healy all submitted that the objective seriousness of this offence was in the middle of the range. Having regard to the above factors, I accept those submissions.

[15]

Subjective circumstances - Smolinski

The offender Smolinski is 27 years of age.
His criminal history commences in 2012 when he was dealt with for offences of stalk and intimidate, destroy or damage property and contravene an Apprehended Violence Order. In respect of each of those offences he was placed on a section 9 bond.
In 2018, he was dealt with for offences of supply prohibited drug, self-administer prohibited drug and goods in custody. In respect of each of those offences he was placed on section 9 bonds.
In 2019, he was dealt with for offences of enter building with intent to commit indictable offence and possess implements to enter conveyance. In respect of each of those offences he was placed on a Community Correction Order for 12 months. He was also dealt with for an offence of possess ammunition in respect of which he was fined.
Later in that same year he was also dealt with for an offence of resist officer in the execution of duty, intimidate a police officer in the execution of duty, drive whilst disqualified, larceny and two charges of dishonestly obtain property by deception. He received Community Correction Orders for each offence.
On 31 March 2020, he was sentenced for one offence of break enter and steal and was also called up in respect of each Community Correction Order that had been imposed in 2019. He was sentenced to an aggregate term of imprisonment of 14 months with a non-parole period of 10 months. The non-parole period commenced on 15 July 2019 and expired on 14 May 2020.
Having regard to the offender Smolinski's criminal history, I am satisfied that it disentitles him to any leniency on sentence that would otherwise be available to a person of good character.
The following material was tendered on behalf of the offender Smolinski: 1. Exhibit 1 - Report of Dr Bench, forensic psychiatrist dated 1 June 2020; 2. Exhibit 2 - Report of Ms Belinda Preston, psychologist dated 24 September 2018; 3. Exhibit 3 - Justice Health report dated 26 September 2018; 4. Exhibit 4 - Letter under the hand of Dr Butler, Headspace dated 29 August 2018; and 5. Exhibit 5 - Written submissions.
The offender Smolinski also gave evidence during the sentence proceedings.
The offender's background is outlined in the report of Dr Bench (Exhibit 1), the Sentencing Assessment Report and the offender's evidence.
Dr Bench assessed the offender on 28 May 2020 via Audio Visual Link.
The offender was born in Blacktown. He has two sisters. He grew up in Sydney and then on the Central Coast.
The offender's parents separated when he was a young adolescent. The offender denied the presence of any domestic violence in that relationship. The offender reported that he was physically abused by his father who hit him with a belt or power cord. The offender has had no contact with his father for many years but remains close to his mother who lives in Budgewoi. The offender denied any history of sexual abuse as a child or adolescent.

[21]

Assessment by Dr Bench

Dr Bench assessed the offender via audio-visual link from Shortland Correctional Centre.
In the opinion of Dr Bench, the offender met diagnostic criteria for Autism Spectrum Disorder, Antisocial Personality Disorder, Alcohol Use Disorder, Methamphetamine Use Disorder, and Attention Deficit Hyperactivity Disorder.
In relation to the presence of an intellectual disability, Dr Bench referred to the letter of psychologist Belinda Preston and noted that the offender does not meet the diagnostic criteria for intellectual disability. He noted that this was more consistent with borderline intellectual functioning.
The offender Smolinski had taken counselling sessions with Ms Preston in 2015, 2016 and 2018 (22 hours of Victim Services counselling). Ms Preston noted the following: "Mitchell was assessed for an intellectual disability. Mitchell scored 89 and was determined to have a below average level of intellectual functioning. In addition, Mitchell was assessed as meeting the diagnostic criteria for autism spectrum disorder. Further assessment would be beneficial to determine if Mitchell meets the criteria for antisocial personality disorder. Mr Smolinski meets the diagnostic criteria for autism spectrum disorder, post-traumatic stress disorder and mood disorder. He was assessed as experiencing a below average level of cognitive functioning, although he did not reach the criteria for an intellectual disability."
In the opinion of Dr Bench, the offender's substance use disorders and substance intoxication had likely been the significant nexus between any mental health issues and the offending behaviours. In particular, Dr Bench noted the offender's report that the offences occurred in an impulsive manner and this accords with the diagnostic criteria of Borderline Personality Disorder, ADHD and Antisocial Personality Disorder. Dr Bench noted that the offender's other mental health conditions have likely contributed via secondary or flow on effect in that the offender acknowledged his substance abuse was a form of self-medication.

[30]

Relevance of mental health - Smolinski

Having regard to the available evidence, I am satisfied that the offender Smolinski suffers from Autism Spectrum Disorder, Antisocial Personality Disorder, ADHD, and alcohol and methamphetamine use disorder. Whilst he does not meet the diagnostic criteria for intellectual disability, I accept the evidence of Dr Bench that his IQ of 89 is consistent with borderline intellectual functioning.
The relevance of an offender's mental health is summarised in Director of Public Prosecutions (Cth) v De La Rosa. McClellan J at [177] summarised the principles in the following way: 1. Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence. 2. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence, resulting in a reduction in the sentence which would otherwise have been imposed. 3. It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person, the length of the prison term or the conditions under which it is served may be reduced. 4. It may reduce or eliminate the significance of specific deterrence. 5. Conversely, it may be that because of a person's mental illness they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence.
His Honour stressed that the mental health problems of an offender need not amount to a serious psychiatric illness before they would be relevant to the sentencing process.
Having regard to the opinion of Dr Bench, I am satisfied there is a causal connection between the offender Smolinski's mental health issues and the offending. Whilst I accept that the conduct occurred whilst the offender was intoxicated, I am satisfied that his underlying mental health issues contributed towards his impulsivity. In those circumstances, I propose to moderate the otherwise appropriate sentence. I am also satisfied that because of the offender's mental health issues custody will be more onerous.

[35]

Subjective circumstances - Steele

The offender Steele is 42 years of age.
He has a criminal history commencing in 1996 (18 years of age) when he was dealt with for an offence of stealing. He received a fine.
In 1999, he was dealt with for offences of assault police in the execution of duty (2 charges), destroy or damage property and resist police. Those matters were dealt with either by way of a section 556A dismissal or a recognisance.
In 2003, he was dealt with for an offence of assault officer in the execution of duty and possess prohibited drug. He received a bond and a fine respectively.
In 2005, he was dealt with for an offence of contravening an apprehended domestic violence order. He was sentenced to a six month bond.
In 2007, he was dealt with for an offence of resist officer in the execution of duty and was sentenced to 100 hours of community service.
In 2008, he was dealt with for offences of drive whilst disqualified and fail or refuse to undergo a breath test. He was sentenced to 4 months imprisonment in respect of each offence. On appeal the sentences were varied to a bond and four months periodic detention.
In 2008, he was dealt with for an offence of common assault and an offence of contravening an Apprehended Violence Order. In relation to each offence, he was sentenced to an 18 month bond. He was called up in respect of each matter and was sentenced to four months imprisonment. On appeal that was varied to three months periodic detention.
In 2010, he was dealt with for one offence of common assault and received a term of imprisonment of two years with a non-parole period of 18 months. He was also dealt with for an offence of recklessly cause grievous bodily harm and was sentenced to a fixed term of imprisonment of eight months.
In 2012, he was dealt with for an offence of assault occasioning actual bodily harm (domestic violence) and sentenced to 18 months imprisonment with a non-parole period of 9 months. He was also dealt with for an offence of destroy or damage property and sentenced to six months imprisonment.
In 2015, he was dealt with for an offence of destroy or damage property and was sentenced to a bond. He was also dealt with for an offence of common assault and sentenced to a Community Service Order for 200 hours
In 2018, was dealt with for two offences of contravening an Apprehended Violence Order. In respect of one offence he was fined. In respect of the other offence, he was sentenced to four months imprisonment.
The offender Steele also has a Queensland criminal history.
In 2015, he was dealt with for an offence of assault or obstruct police and was fined.
Having regard to the offender Steele's criminal history, I am satisfied it disentitles him to any leniency on sentence. Also, in circumstances where he has previously served terms of imprisonment for offences of violence, specific deterrence is an important consideration on sentence.
The following material was tendered on behalf of the offender Steele during the sentence proceedings: 1. Exhibit 1 - Report of Gina Lattas, Forensic Psychologist, dated 27 June 2020; 2. Exhibit 2 - Justice Health records; and 3. Exhibit 3 - Defence written submissions
The offender Steele also gave evidence during the sentence proceedings.
The offender Steele's background is outlined in the report of Ms Lattas and the offender's evidence. Ms Lattas assessed the offender for two hours via audio visual link on 29 May 2020.
The offender is the only child born to his parents' union. He has three younger half-siblings on his mother's side and two younger half-siblings on his father's side.
His parents separated when he was two years old. He reported that domestic violence was present within his parents' relationship. The offender's father was not present following the separation.
He reported having a distant relationship and poor attachment with his mother when he was young. His mother had a number of male partners during his childhood and consequently, he had no stable father figure.
The offender reported that he was subjected to prolonged sexual abuse between six and nine years of age by a family who regularly babysat him. He was hospitalised as a result of injuries, however his mother did not believe him when he told her how the injuries were sustained.
The offender's mother began a relationship with his stepfather when he was 8 years old. They have three children together.
The offender reported that he was physically assaulted on many occasions by his stepfather who was a violent alcoholic. The abuse included being pushed and kicked on the ground.
The offender reported that he began rebelling at 9 years of age and suffered severe physical abuse from his mother. He reported that his mother would 'beat' him, 'crack whips and sticks' on him and drag him by the hair. The abuse from his mother ceased when the offender was 14 years of age and his stepfather left the family.
He reported having a significant caregiving responsibility for his half-siblings from the age of 14 to 18 years. He reported bathing, feeding and putting the children to bed. This fostered a close relationship between the offender and his siblings.
He reported having only met his biological father twice during late adolescence. On both occasions, the offender ran away due to his father's violence.
The offender reported having a close, positive relationship with his maternal grandmother who passed away roughly 2 years ago.
The offender reported two previous relationships. He has an 18 year old daughter with his first partner. He is not sure whether a child of his second partner is his, having regard to the nature of their relationship.

[38]

Substance use history

The offender Steele reported a family history of alcoholism.
The offender began consuming alcohol at the age of 18 years and drank regularly from that age, reporting that he would be intoxicated most days during the week.
He stopped drinking while incarcerated when he was 30 years old, after joining Alcoholics Anonymous. The offender began to facilitate Alcoholics Anonymous groups in custody and began running Alcoholics Anonymous courses.
The offender reported that he only experienced one lapse in abstention from alcohol which occurred approximately two years ago and lasted for three months. He attributed his lapse to difficulties coping with a relationship breakdown during that time.
He reported using cannabis daily from the age of 16 to 18 years as a coping mechanism to numb sensations. He reported that he detoxed for a year at his grandmother's farm when he was 18 years of age. He then ceased cannabis use when he was 22 years old and has maintained abstinence since that time.
He reported he began using methamphetamine (ice) approximately 2 years ago. He reported using it on a daily basis, costing $500 per week. He attributed his methamphetamine use to difficulty coping with a relationship breakdown with his daughter's mother and reported that he would use methamphetamine to get 'high' and numb painful emotions. This continued for approximately one year and the offender ceased methamphetamine use upon his incarceration.
The offender reported that his father was diagnosed with Dissociative Identity Disorder and Bipolar Disorder.
The offender reported a history of seeking psychological support to address events from his past as well as substance use. He reported that when he was 21 years old, he attended three sessions at the Mental Health Clinic at Wyong to address his alcohol use. Between 36 and 39 years of age, he attended psychological therapy with psychologist Mr Adam Wiseman. His treatment focussed on processing emotions and building identity.
The offender advised that he has never previously received a formal mental health diagnosis.
He reported that he has been prescribed anti-anxiety and antidepressant medications from 30 years of age. He is currently prescribed antipsychotic medication and an antidepressant.
He did not report any previous or recent history of suicidal ideation or suicide attempts. The offender did report a pattern of reckless behaviours that were self-damaging.

[53]

Determination

In determining the appropriate sentences I have had regard to the purposes of sentencing set out in s 3A, Crimes (Sentencing Procedure) Act.
Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate in respect of each offence pursuant to s 5(1), Crimes (Sentencing Procedure) Act.
I have had regard to the objective gravity of the offences, the relevant prescribed maximum penalties, each offender's subjective circumstances and the prescribed standard non-parole period in accordance with s 54B(2), Crimes (Sentencing Procedure) Act.
As I indicated, I propose to impose aggregate sentences pursuant to s 53A(1), Crimes (Sentencing Procedure) Act. Pursuant to s 53A(2), the indicative terms are as follows:
In relation to the offender Smolinski, the indicative terms are:

Sequence 3 (Recklessly cause grievous bodily harm in company) - Starting term of three years and six months discounted by 25 per cent for the plea of guilty leaving a total term of two years and seven months with a non-parole period of one year and seven months.
Sequence 6 (Aggravated detain with intent to commit serious indictable offence occasioning actual bodily harm) - Starting term four years and six months discounted by 25 per cent for the plea of guilty, leaving a total term of three years and four months.

In relation to the offender Steele, the indicative terms are as follows:

Sequence 3 (Recklessly cause grievous bodily harm in company) - Starting term of four years and six months - 25% for the plea of guilty leaving a total term of three years and four months with a non-parole period of two years.
Sequence 6 (Aggravated detain with intent to commit serious indictable offence occasioning actual bodily harm) - Starting term of five years and six months discounted by 25 per cent for the plea of guilty, leaving a total term of four years and one month.

Mr Smolinski, in relation to each offence you are convicted.
You are sentenced to a total aggregate sentence of five years imprisonment to date from 15 May 2020 and expire on 14 May 2025 with a non-parole period of three years to date from 15 May 2020 and expiring on 14 May 2023.
You will be first eligible for parole on 14 May 2023.
Mr Steele, in relation to each offence you are convicted.
You are sentenced to a total aggregate sentence of six years imprisonment to date from 1 July 2019 and expiring on 30 June 2025 with a non-parole period of three years and seven months to date from 1 July 2019 and expiring on 31 January 2023.
You will be first eligible for parole on 31 January 2023.

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Judgment (54 paragraphs)

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Cases Cited (6)