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District Court 1 June 2006

R v Paul Robert SMITH

[2006] NSWDC 156

Assault & violenceFraud & dishonesty
CRIMINAL LAW SENTENCE DEMAND MONEY WITH MENACES

Citation: R v Paul Robert SMITH [2006] NSWDC 156
Court: NSW District Court
Date: 1 June 2006
Judge(s): Berman SC DCJ

Background

The offender pleaded guilty to demanding money with menaces. The offence arose from a meeting arranged through a sex chat line between the offender and the victim (referred to in the judgment as DG). After the meeting turned sour, the offender produced a knife approximately twenty centimetres long and, over the course of roughly two hours, pressed it against the victim's hip, threatened to stab and kill him, and demanded $500 to buy a car.

The offender had been confined to a wheelchair since a motorbike accident in 2001. Despite his incomplete paraplegia, he had continued to commit offences involving violence and threats of violence. The present offence was committed while he was serving a bond for a prior offence that also involved the use of a knife.

Although the matter had progressed through the Local Court and the District Court to the eve of trial, the Crown conceded that the guilty plea had been entered at the first available opportunity, because the plea was to a different charge from the one originally listed for trial.

  • Whether the guilty plea, entered on the first day of a trial for a different offence, should be treated as a plea at the earliest opportunity.
  • How the offender's physical disability and ongoing medical needs should be weighed in sentencing.
  • How to approach a victim impact statement that described conduct more serious than what was recorded in the agreed statement of facts.
  • Whether an adjournment under section 11 of the Crimes (Sentencing Procedure) Act 1999 (to allow rehabilitation and medical treatment to progress) was appropriate, rather than proceeding immediately to final sentence.

Decision

The court accepted the Crown's concession that the guilty plea was entered at the earliest opportunity, and treated it accordingly, despite the significant court time already spent on the matter.

On the question of the victim impact statement, the court acknowledged that it contained more graphic detail than the agreed facts. The court was mindful of the principle that the sentencing court should not punish an offender for harm that was unforeseeable, and that care must be taken where a victim impact statement reveals conduct more serious than what is reflected in an agreed statement of facts. The court drew on the principle from R v Di Simoni (that an offender should not be sentenced more harshly than the charge to which they pleaded warrants) and on R v Bakewell as a related illustration, though the court noted that a strict Di Simoni problem had not arisen here.

The court was firm that the offender's paraplegia did not amount to licence to commit serious offences without consequence. While acknowledging that incarceration would be harder for the offender than for an able-bodied person, the court noted that corrective services could make appropriate arrangements for his accommodation, as had occurred during a prior ten-month custodial term.

Rather than imposing a final sentence immediately, the court exercised its discretion under section 11 of the Crimes (Sentencing Procedure) Act 1999 to adjourn for approximately eight months. The court identified three concurrent reasons: to give the offender the opportunity to demonstrate rehabilitation, to allow an assessment of his rehabilitation prospects, and to permit three imminent and significant medical matters (a surgical decision, commencement of rehabilitation, and a scheduled catheter procedure) to progress.

Orders Made

  • Proceedings adjourned to 16 February 2007 under section 11 of the Crimes (Sentencing Procedure) Act 1999.
  • Updated pre-sentence report ordered for the return date.
  • Bail granted on the following conditions:
  • Report to NSW Probation and Parole Service at Liverpool within seven days and comply with their reasonable directions.
  • Reside with parents, or at another address with prior notice to the DPP and the court registrar.
  • Be of good behaviour throughout the adjournment period.
  • Not be in possession of any knife, other than cutlery used for its intended purpose.
  • Report to Cabramatta Police Station every Monday.

Key Takeaways

  • A guilty plea entered on the first day of trial, but to a different charge from the one listed, may nonetheless be treated as a plea at the earliest opportunity where the Crown accepts that characterisation.
  • Physical disability does not shield an offender from meaningful punishment for serious offences, though the District Court recognised that custody will weigh more heavily on a person with significant physical impairment.
  • Under section 11 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court may adjourn proceedings to allow an offender to demonstrate rehabilitation and to address pressing medical needs before a final sentence is determined.
  • Where a victim impact statement contains details of conduct more serious than what is captured in an agreed statement of facts, care is required to avoid sentencing an offender beyond the scope of the offence to which they pleaded guilty, consistent with the principle in R v Di Simoni.
  • Committing an offence while subject to a bond, particularly where that bond also related to knife use, was treated as a significant aggravating factor.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 11

Cases:
- R v Di Simoni (1981) 147 CLR 383 (High Court of Australia)
- R v Bakewell, unreported, Court of Criminal Appeal, 27 June 1996