Citation: R v Smolinski; R v Steele [2020] NSWDC 651
Court: District Court of New South Wales
Date: 4 September 2020
Judge: Bright DCJ
Background
Two co-offenders, Mitchell Smolinski (27) and Nathan Steele (42), appeared for sentencing on two serious violent offences. In the early hours of 26 June 2019, both men entered a shed at a property in Charmhaven on the NSW Central Coast, where the victim was asleep. The victim had been living there with Smolinski's knowledge after being given temporary accommodation.
Upon waking, the victim attempted to defend himself with a makeshift weapon, but the offenders proceeded to assault him for approximately 15 to 20 minutes. Steele struck the victim's hand with a metal bar, partially amputating his right little finger. Smolinski made a callous remark about the injury. The offenders then zip-tied the victim's hands and feet, interrogated him, and one of them recorded footage of him in a bloodied and distressed state.
After the victim was eventually released, he walked to a nearby Rural Fire Service station seeking help. He was conveyed to hospital, where he underwent surgery resulting in the amputation of the finger. His injuries also included multiple lacerations, bruising to his back, and a comminuted fracture of the left orbital floor.
Legal Issues
- What aggregate sentence was appropriate for each offender, having regard to the objective seriousness of the two offences?
- How should the court apply the parity principle given the differing subjective circumstances of the two co-offenders?
- What weight should be given to Smolinski's mental health, intellectual disability, drug addiction, and troubled background as mitigating factors?
- Were special circumstances established so as to justify a non-parole period that departs from the statutory one-third proportion?
- What discount applied for each offender's guilty plea?
Decision
Bright DCJ sentenced both offenders on two counts: recklessly causing grievous bodily harm in company (s 35(1), Crimes Act 1900, maximum 14 years, standard non-parole period of 5 years) and specially aggravated detention in company with intent to commit a serious indictable offence (s 86(3), Crimes Act 1900, maximum 25 years). Her Honour found that no penalty other than imprisonment was appropriate for either offender in respect of either offence.
Both offenders received a 25 per cent discount on their sentences for guilty pleas entered at Wyong Local Court on 21 April 2020. The court imposed aggregate sentences under s 53A(1) of the Crimes (Sentencing Procedure) Act 1999, with indicative terms set out for each individual offence.
The court treated the offending as objectively serious. The assault was prolonged and sadistic, the victim was rendered helpless, one offender filmed him in a degraded and injured state, and Smolinski's remark about severing another finger demonstrated a callous attitude. Although no victim impact statement was provided, Bright DCJ found no doubt that the offending would have been wholly terrifying for the victim, who believed he would be killed.
The differing sentences between the two co-offenders reflected their different subjective circumstances. Smolinski's mental health difficulties, intellectual disability, ADHD, history of physical abuse, and drug addiction were considered mitigating factors, though his criminal history disentitled him to leniency otherwise available to a person of good character. Steele, being older and having a more significant role in the physical violence, received a longer aggregate term. Special circumstances were considered in setting the non-parole periods.
Orders Made
Smolinski:
- Convicted of both offences
- Aggregate sentence of 5 years imprisonment, commencing 15 May 2020, expiring 14 May 2025
- Non-parole period of 3 years, commencing 15 May 2020, expiring 14 May 2023
- First eligible for parole: 14 May 2023
Steele:
- Convicted of both offences
- Aggregate sentence of 6 years imprisonment, commencing 1 July 2019, expiring 30 June 2025
- Non-parole period of 3 years and 7 months, commencing 1 July 2019, expiring 31 January 2023
- First eligible for parole: 31 January 2023
Key Takeaways
- A 25 per cent guilty plea discount was applied to both offenders, consistent with the timing of pleas entered at the Local Court level prior to committal for sentence in the District Court.
- Aggregate sentences under s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 were imposed for both offenders, with indicative terms recorded for each individual offence to provide transparency in the sentencing exercise.
- Under the parity principle, differing sentences between co-offenders are justified where their subjective circumstances and relative criminality differ materially; here, Steele's greater age and the nature of his physical conduct supported a higher aggregate term.
- Mitigating factors such as mental illness, intellectual disability, drug addiction, and a history of childhood abuse can reduce a sentence, but a significant and recent criminal history may neutralise any leniency that good character would otherwise attract.
- The absence of a victim impact statement does not preclude a sentencing court from recognising the harm suffered by a victim, particularly where the facts plainly demonstrate severe physical injury and psychological terror.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 35(1), 86(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 53A, 54B(2)
Cases:
- Cahyadi v R (2007) 168 A Crim R 41
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- KR v R [2012] NSWCCA 32
- Lowe v R (1984) 154 CLR 606
- R v Mitchell; R v Gallagher [2007] NSWCCA 296
- R v Newell [2004] NSWCCA 183
- Stevens v R [2017] NSWCCA 216