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District Court 29 May 2018

R v Jarrod Smith

[2018] NSWDC 208

Assault & violenceTheft & property
CRIMINAL LAW NO AGGRAVATING FACTORS ADVANCED GOOD CHARACTER NOT ESTABLISHED REMORSE NOT ESTABLISHED LOW TO MEDIUM RISK OF REOFFENDING GOOD PROSPECTS OF REHABILITATION

Citation: R v Jarrod Smith [2018] NSWDC 208
Court: District Court of New South Wales
Date: 29 May 2018
Judge: Hatzistergos DCJ

Background

Following a jury trial, the offender was convicted of two offences arising from events on 22 July 2016 at a residential property in North Richmond, NSW. The jury found that the offender broke into the victim's home knowing someone was inside, with the intent to commit intimidation. He was also found guilty of assaulting the victim, striking him multiple times to the face and causing facial bruising.

The offender had denied being present at all, but the jury rejected that account and accepted the victim's evidence. The Crown acknowledged that the precise motive for the assault could not be established beyond reasonable doubt, though the victim's evidence referred to demands relating to a debt.

After the verdicts, the court ordered a pre-sentence report and heard sentencing submissions on 25 May 2018.

  • What was the objective seriousness of the two offences, having regard to the nature of the "serious indictable offence" underpinning the break and enter charge?
  • Whether any statutory aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied.
  • Whether a traumatic brain injury suffered by the offender in childhood reduced his moral culpability by contributing to impulsive behaviour.
  • What aggregate sentence and non-parole period were appropriate, including whether special circumstances justified a longer than usual parole period?

Decision

Hatzistergos DCJ placed the objective seriousness of both offences at the lower end of the spectrum. The "serious indictable offence" underpinning Count 1 was intimidation, which carries a maximum of five years imprisonment. While the maximum penalty of the underlying offence was a relevant consideration, it was not determinative on its own. The court treated the offences as largely spontaneous and impulsive, and the Crown advanced no aggravating factors under s 21A(2). The circumstance of aggravation pleaded in Count 1 (the offender's knowledge that someone was inside) added nothing further to the criminality in circumstances where the intended offence was itself intimidation.

On the question of the childhood head injury, the Defence relied on a forensic psychiatrist's report suggesting it was "plausible" that the injury had contributed to impulsive behaviour and poor judgment. The court declined to accept that submission. The psychiatrist described the connection only as plausible rather than established, no formal neuro-cognitive testing had been conducted, and the CT imaging at the time of the injury had been essentially normal with no major cognitive impairment identified on discharge.

The court found no established remorse and did not accept that good character had been demonstrated, given the offender's prior criminal record. His prospects of rehabilitation were assessed as good, and the court found special circumstances justifying a longer additional term on parole, noting the importance of supervision following release. The court also noted it was unable to take into account the demands for money as a discrete aggravating factor, consistent with the principle in R v De Simoni that an offender is sentenced only for the offence of conviction and not for a more serious uncharged offence.

Orders Made

  • The offender was convicted on each of the two counts.
  • An aggregate term of 2 years and 4 months imprisonment, commencing 15 January 2018 and expiring 14 May 2020.
  • Non-parole period of 15 months, commencing 15 January 2018 and expiring 14 April 2019; earliest release date 14 April 2019.
  • Additional term of 13 months on parole under supervision of Community Corrections, commencing 15 April 2019 and expiring 14 May 2020.
  • A recommendation to the Commissioner for Corrective Services that the offender be considered for the Young Adult Offender's Programme.

Key Takeaways

  • The maximum penalty of the "serious indictable offence" underlying a charge of break and enter under s 113(2) of the Crimes Act 1900 (NSW) is a relevant but not determinative factor in assessing objective seriousness; all facts and circumstances, and the range of offences of that kind, must be considered.
  • A psychiatric opinion described only as "plausible," and not supported by formal neuropsychological testing, was insufficient to establish that a childhood brain injury reduced the offender's moral culpability for impulsive offending.
  • Under the principle in R v De Simoni (1981) 147 CLR 383, a sentencing court cannot treat evidence of more serious uncharged conduct (here, alleged demands for money suggesting extortion) as aggravating the sentence for the offences of conviction.
  • Where the Crown advances no statutory aggravating factors, and the offences are characterised as largely spontaneous, the sentencing assessment will tend toward the lower end of the spectrum even where the offending involved entry into an occupied home and physical violence.
  • Special circumstances were found to exist, warranting a parole period longer than the standard one-third of the head sentence, to support the offender's rehabilitation under supervision following release.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 4, 59(1), 113(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3(1), 21A, 44
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)

Cases
- R v De Simoni (1981) 147 CLR 383
- R v Huynh [2015] NSWCCA 220
- Georgopolous v R [2010] NSWCCA 246
- DPP (Cth) v Beattie [2017] NSWCCA 301