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District Court 15 May 2023

R v Smith; R v Catt

[2023] NSWDC 166

Assault & violenceTheft & property

Citation: R v Smith; R v Catt [2023] NSWDC 166
Court: District Court of New South Wales
Date: 15 May 2023
Judge: Scotting DCJ

Background

Two offenders, Frank Alexander Smith and Tenielle Catt, were sentenced after pleading guilty in the Local Court to offences arising from a series of violent incidents at an apartment complex in Lilyfield on 4 April 2022. At the time of the offences, both offenders were homeless and had been living in the spare bedroom of a resident's apartment by invitation for approximately two weeks. The incidents appear to have originated from a dispute over cannabis money.

Over the course of one evening, Smith and Catt forcibly entered a neighbour's apartment, with Smith delivering a severe beating to the resident, Mr Molina, that broke five ribs, collapsed a lung, and caused internal bleeding. The offenders returned to the same apartment later that evening, during which Smith kicked another resident, Mr Lockyer, in the face and repeatedly threw a kitchen knife at him. In between these two episodes, Smith also forced open a security door to pursue another resident, Mr Rurik, who barricaded himself in his apartment and hid under his bed.

Smith faced two principal charges: aggravated break and enter and commit assault occasioning actual bodily harm, and using or possessing an offensive weapon with intent to commit a serious indictable offence. Catt faced the same first charge and, in place of the weapon offence, aggravated entry to a dwelling with intent to commit a serious indictable offence. Both offenders also had additional offences placed on a Form 1 (meaning they were taken into account at sentencing without separate convictions being recorded).

  • What sentence was appropriate for each offender, taking into account the objective seriousness of the offences and the agreed facts?
  • What discount applied to each offender for their early guilty pleas in the Local Court?
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio (ordinarily one-third of the head sentence remains as parole; a finding of special circumstances allows a longer parole period)?
  • Whether parity between the two offenders was appropriate, and if not, what differences in circumstances justified divergent sentences?

Decision

Scotting DCJ applied the standard sentencing framework under the Crimes (Sentencing Procedure) Act 1999, taking into account the purposes of sentencing under s 3A and the relevant aggravating and mitigating factors under s 21A. Each offender received a 25% discount on sentence for their early guilty plea under s 25D(2)(a). The Court also applied the guideline principles from Attorney General's Application No 1 of 2022 when considering the Form 1 offences.

The Court found special circumstances for both offenders, though on different bases. For Smith, his mental health condition required an extended period of community-based treatment and supervision, and he had not previously had the benefit of a lengthy parole period that might support residential rehabilitation. For Catt, this was her first time in custody and she had both drug and mental health issues warranting a longer parole period.

The Court noted that parity between the two offenders was a relevant consideration but found that substantially higher penalties were justified for Smith. His more active and more serious role in the violence, including the knife-throwing episode and the sustained assault on Mr Molina, combined with his more extensive criminal history, clearly distinguished his position from Catt's.

Orders Made

Smith:
- Convicted of all charges
- Special circumstances found
- Aggregate sentence: 5 years and 9 months imprisonment, with a non-parole period of 3 years and 6 months
- Sentence backdated to 4 April 2022; non-parole period expires 3 October 2025; head sentence expires 3 January 2028
- Eligible for parole from 3 October 2025

Catt:
- Convicted of all charges
- Special circumstances found
- Aggregate sentence: 3 years and 3 months imprisonment, with a non-parole period of 1 year and 9 months
- Sentence backdated to 4 April 2022; non-parole period expires 3 January 2024; head sentence expires 3 July 2025
- Eligible for parole from 3 January 2024

Key Takeaways

  • The District Court imposed aggregate sentences under s 53A of the Crimes (Sentencing Procedure) Act 1999, reflecting the connected nature of the multiple offences arising from one course of conduct across a single evening.

  • A finding of special circumstances was made for each offender, but on distinct grounds: for one, mental health needs best met in the community; for the other, first-time custody combined with drug and mental health issues. This illustrates that special circumstances assessments are fact-specific and not confined to a single category of consideration.

  • Early guilty pleas entered in the Local Court attracted a 25% reduction in sentence under s 25D(2)(a), underscoring the significance of the timing of a guilty plea to the discount available.

  • Parity between co-offenders does not require identical sentences. The Court expressly found that Smith's more dominant role in the violence and his more extensive criminal history together justified substantially heavier penalties than those imposed on Catt.

  • Under the R v Olbrich standard, facts adverse to an offender at sentencing must be proved beyond reasonable doubt, while facts favourable to an offender need only be established on the balance of probabilities.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 112(2), 111(2), 33B(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW): s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 5, 21A, 25D(2)(a), 53A

Cases:
- R v Olbrich (1999) 199 CLR 270
- Attorney General's Application No 1 of 2022 (2002) 56 NSWLR 147