Citation: R v Smethurst [2018] NSWDC 488
Court: District Court of New South Wales
Date: 9 November 2018
Judge: Wilson SC DCJ
Background
The offender, Justin John Smethurst, appeared for sentencing on one count of assault occasioning actual bodily harm under s 59(1) of the Crimes Act 1900, together with a related common assault charge on a s 166 certificate. The offending occurred on 22 February 2016 at the complainant's home in Wyoming, NSW. The two parties had known each other for a number of years.
The incident began during an argument at the complainant's residence. The offender placed a pillow over the complainant's face, then followed her into the backyard, pushed her to the ground, and dragged her back toward the house by her shirt, causing a graze to her back. A neighbour witnessed the complainant sobbing on his driveway and called police after the complainant asked him to do so.
The offender was arrested in April 2016. A trial was listed for September 2018, but on the second day of that listing the offender pleaded guilty, following negotiations with the Crown. At the time of the offending, he was subject to five good behaviour bonds and a series of intensive corrections orders, all of which were subsequently revoked.
Legal Issues
- What was the appropriate objective seriousness of the offending, having regard to aggravating and mitigating factors?
- What weight should be given to the offender's prior criminal record, including previous domestic violence offences?
- Whether a connection between drug addiction and the domestic violence offending was sufficiently established to affect sentence?
- What discount applied for the guilty plea, and whether imprisonment was warranted over alternative sentencing options?
- What aggregate sentence was appropriate across the two charges?
Decision
The District Court assessed the offending as falling within the mid-range of objective seriousness, a characterisation accepted by both parties. Two aggravating factors were established beyond reasonable doubt: the offending occurred in the victim's home, and the offender was on conditional liberty at the time, having been subject to multiple bonds and intensive corrections orders. The court accepted that the offending was unplanned and of short duration as mitigating factors going to seriousness, but noted that it involved several consecutive acts rather than a single spontaneous moment.
The offender's criminal record was a significant feature of the sentencing exercise. He had prior convictions for common assault (2008), AVO contraventions (2008 and 2012), and assault occasioning actual bodily harm in a domestic violence context (2010). The court applied the principles from R v McNaughton and Veen v The Queen (No 2) to conclude that the record demonstrated a continuing attitude of disobedience toward the law, justifying a more severe penalty in the interests of retribution, deterrence, and community protection.
Defence counsel sought to establish a causal link between the offender's drug addiction and his domestic violence offending, arguing that relevant domestic violence charges in 2014 and 2015 coincided with drug offences. The court declined to draw that inference, finding the evidence insufficient and the precise circumstances of the violence and drug offending unknown. The court also rejected suspension of the sentence, determining that full-time custody was warranted given the pattern of offending and the domestic violence context, citing Munda v Western Australia and The Queen v Kilic on the serious nature of domestic violence.
A guilty plea discount of 15% was applied, reflecting the late timing of the plea, entered on the second day of trial. The court imposed an aggregate sentence across both charges rather than two discrete sentences, to avoid an overly onerous combined term.
Orders Made
- The offender was convicted of assault occasioning actual bodily harm (Crown Sentence Summary) and common assault (s 166 certificate).
- An aggregate sentence of 18 months' imprisonment was imposed after a 15% guilty plea discount (from an indicative aggregate of 22 months, itself reduced from combined indicative sentences of 30 months).
- A non-parole period of 12 months was set.
- The head sentence was backdated to commence on 16 August 2018, expiring 15 February 2020.
- The non-parole period runs from 16 August 2018, expiring 15 August 2019, at which point the offender is to be released to parole.
Key Takeaways
- The District Court declined to draw an inference connecting drug addiction to domestic violence offending where the precise circumstances of both the violence and the drug offences were not established in evidence.
- A prior record including repeated domestic violence offences and AVO contraventions was treated as demonstrating a continuing attitude of disobedience, consistent with the approach in Veen v The Queen (No 2) and R v McNaughton, and as justifying greater weight on retribution, deterrence, and community protection.
- Where the offending occurred in the complainant's home and the offender was on conditional liberty at the time, both factors were treated as aggravating circumstances established to the criminal standard.
- A guilty plea entered on the second day of trial attracted a discount of only 15%, reflecting the limited utilitarian value of the late plea.
- Full-time imprisonment was maintained as appropriate notwithstanding statistical evidence that similar offences were commonly dealt with by sentences averaging two years with 18-month non-parole periods, given the offender's history and the domestic violence context.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 59(1) (assault occasioning actual bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 166
Cases
- Conte v R [2018] NSWCCA 209
- Munda v Western Australia (2013) 249 CLR 600
- R v McNaughton (2006) 66 NSWLR 566
- R v Todd [1982] 2 NSWLR 517
- The Queen v Kilic (2016) 259 CLR 256
- Veen v The Queen (No 2) (1988) 164 CLR 465