STATE OF TASMANIA v SHANE VIVIAN SMITH 20 MARCH 2023
COMMENTS ON PASSING SENTENCE PEARCE J
Shane Smith, you were found guilty by a jury of assault. It follows from the verdict that the jury was satisfied beyond reasonable doubt that, on 20 March 2020, you assaulted your former partner Kellie Hall by punching her. You had been in a relationship for a number of years and you had one child aged 6. You lived between Ms Hall’s home and your mother’s home. On the day of the crime you were at Ms Hall’s unit and you argued. You punched her to her face with such force that it fractured her jaw both on the lower right side and on the upper left side.
Ms Hall was reluctant to seek medical assistance and lied about what had happened. She first told her mother on the phone that she had an abscess. The next day, when it became obvious from her deformed face that this was a lie she told her mother and sister that she had been struck by a piece of wood when she was working with you to erect a shade cloth. She did not go to hospital until the following day. The nature of her injury was such that she was required to go to Hobart for surgery. She told the same lie to her treating doctors in both hospitals. She did not tell her mother the truth until either 25 March, the day of the surgery, or on the following day when she came back home. I think it very likely that her mother knew or suspected the truth in any event, but the police were then notified.
Ms Hall’s decision to lie may have been motivated by one or more of a range of factors which are commonly at play in cases like this: shame, misguided feelings of guilt and responsibility for your actions, loyalty, affection or a wish to protect you and preserve your relationship, for the benefit of your child and for the emotional security it provided. However, even in the face of all those factors you did nothing to assist her or see that she obtained some medical help or treatment for her serious injuries.
You are now aged 45. You were 42 when this occurred. You left school early but held employment until that came to an end as a result of a serious back injury when you were 28. You have contributed to the community as a volunteer. For most of your life you have been affected by abuse of alcohol. More recently you were introduced to methylamphetamine. Ms Hall may have played some part in that, but even if that is true it does not lessen the seriousness of the assault in any way. You do not attribute your actions to the effects of alcohol or drugs but even if that were the case it does not act in your favour. You have four other children, two of whom are young and in your primary care. Your imprisonment will be difficult for them but impact on others is an unfortunate but inevitable consequence of serious crime. As a young man you committed three assaults but your record is mostly for dishonesty and driving offences reflective of your alcohol problem. You have been sentenced to a number of terms of imprisonment. They include one for robbery in 2011. One was for driving offences in 2015 and another was for an aggravated burglary involving the theft of firearms in 2016. On 28 August 2020, since this assault was committed, you have served another term of imprisonment for offences including a less serious assault on Ms Hall committed on 16 July 2019 and a number of breaches of conditions of bail and an interim family violence order put in place to protect her. In July 2021 a six month community correction order was made for further family violence order breaches committed by being in contact with Ms Hall and going to her home. I am told however that she wishes that you continue to co-parent your son.
This was a single punch struck impulsively in anger. It did not involve repeated violence. However it is made more serious by the fact that you were already subject to a police family violence order made to protect her. It is also an aggravating factor that Ms Hall was struck in the presence of your son. You are not entitled to the significant mitigation a plea of guilty would have attracted. You have demonstrated no remorse. The injury you caused is an important sentencing consideration. Ms Hall suffered a very serious injury involving the application of significant force. Associated with her broken jaw she lost some teeth. Surgery was required to internally fix the right sided jaw fracture with a plate. Her physical recovery was not uncomplicated and she has been left with ongoing pain and discomfort. Her victim impact statement also describes the type of psychological consequences which are to be expected. She is afraid and has become more socially withdrawn. She feels self-conscious about her appearance. She has developed panic attacks and anxiety and has attempted self-harm. There are a range of other factors which have led her to that situation but your crime is one of them.
The seriousness of violence within relationships is well recognised by the courts. It is a matter of great community concern. Family violence is prevalent and insidious. This was a crime committed in the privacy of Ms Hall’s home. Women within relationships are vulnerable to abuse of power and breach of trust by violent male partners, and the principle aim must be to protect them. As far as a court is able to achieve, that is by imposition of punishment which will act as a personal deterrent and to set an example to others. In other words, punishment of such a nature to make you, and others who may be inclined to act in the same way, decide against doing so for fear of the consequences. Perpetrators of serious acts of domestic violence must know that society will not tolerate such behaviour. Although you have already completed the family violence offender intervention programme the seriousness of this matter is such that I am satisfied, on the balance of probabilities, that you have committed family violence and may do so again. I will thus make a family violence order pursuant to my power to do so in the Family Violence Act, s 36 in terms which provide for you to have contact with your son in the future if that is agreed or ordered. I will take into account the four days you spent in custody prior to your remand on 16 March 2023.
Shane Smith, you are convicted. I direct that the offence be recorded on your criminal record as a family violence offence. I make a family violence order for a period of three years from today in the terms of the order made on 5 July 2021 except that it will specify Ms Hall’s address as [address specified]. You are sentenced to imprisonment for one year and nine months from 12 March 2023. I order that you not be eligible for parole until you have served half of that term.