STATE OF TASMANIA v DANA ELISE SMITH 11 JUNE 2019
COMMENTS ON PASSING SENTENCE PEARCE J
Dana, Smith, you have pleaded guilty to aggravated burglary. I will also sentence you for the summary charges of common assault and injuring property which are closely related. At about 11.30 pm on Sunday 26 August 2018, you went to the home of Kelly Shepherd in Newstead. You believed your then boyfriend was also inside. In fact, he had been there but left through the back door. You bashed on the door demanding that he come out. You broke a wooden chair near the front door and used the chair leg to smash a hole in the front door, and the glass panel beside it, so you could reach the lock. After you entered you went to the bedroom where Ms Shepherd had gone. She told you your boyfriend was not there but, despite this, you used the chair leg to strike her legs three or four times . You then used the chair leg to damage a heater in the hallway. Throughout this time Ms Shepherd’s two daughters, one aged 2 and the other 9 months, were present in the house and screaming in distress. You were still holding the chair leg about 15 minutes later when the police arrived, and you were arrested.
You are now 31. You have five children aged between 13 and 10 months, three of whom are in your full time care. One has very high needs. The relationship with the man you were looking for was marred by violence and drug abuse. He died in late 2018. You have a significant problem with abuse of methylamphetamine to which I will refer again in a moment. You have a long list of prior convictions, mostly for driving and drug offences, including for trafficking in 2013 for which you were given a wholly suspended sentence. You were given another suspended sentence in 2015 for more drug and driving offences. However, you do not have a bad record for violence. The most recent convictions are in 2010 for multiple counts of assaulting police. It is in your favour that you have pleaded guilty. It means that a trial is avoided and Ms Shepherd does not have to give evidence.
This is a serious crime. You invaded the home of a female intending to assault her. You armed yourself with a weapon and then assaulted her by striking her with it in the presence of her children. It must have been terrifying for all of them. Ms Shepherd suffered welts to both her lower legs. It is fortunate that her injuries were not more serious. It is impossible to predict how the children may be affected, but it is well known that exposure to violent incidents like this can have a long lasting detrimental impact. Because of the serous nature of the crime I sought a report about your suitability for a home detention order or a drug treatment order. The pre-sentence report indicates that this offending was contributed to by your use of Ice. Your heaviest use of that drug was in 2016. It reduced while you were pregnant with your youngest child, but has increased again since the death of your partner. The pre-sentence report assesses you as eligible and suitable for a drug treatment order. Although you are also suitable for a home detention order, the report suggests that a drug treatment order is the preferred course. I may not make such an order if your offence involved the infliction of actual bodily harm unless I am satisfied that the harm was minor. The assault you committed did involve infliction of hurt or injury calculated to interfere with health or comfort, and thus was bodily harm. However, I am satisfied that, in the context of this case, it was minor harm. There is no victim impact statement. I have been told of no consequences other than the red welts on her legs which I infer resolved quickly.
I am satisfied that, in all the circumstances, it is appropriate to make a drug treatment order, and therefor place emphasis on your rehabilitation as an alternative to prison. It will involve some punishment because you will be required to comply with all of the onerous conditions of the program. The pre-sentence report indicates some lack of insight into the effect of methylamphetamine which may be an impediment to the success of a drug treatment order, but in my view you should be allowed the opportunity. You will know that part of the order will be the term of imprisonment which I would have imposed, and if you do not comply with the conditions of the program, or if you commit another serious offence, you may have to serve that prison term.
Dana Smith, you are convicted on counts 1, 2 and 3 on complaint 34009/18. I make a compensation order in favour of the Director of Housing and adjourn the further terms of that order to a date to be fixed. I impose one sentence. I make a drug treatment order pursuant to the Sentencing Act 1997, s 27B. The custodial part of the order will be imprisonment for 11 months. You are not required to serve all or any of the custodial part of the drug treatment order unless it is activated. It may be activated if you fail to comply with the treatment and supervision part of the order which has the following core conditions:
1 you must not, in Tasmania or elsewhere, commit another imprisonable offence;
2 you must attend the Magistrates Court of Tasmania, Devonport on 25 July 2019 at 12 noon and thereafter attend the Magistrates Court or this Court as and when directed by the court;
3 you must report to a court diversion officer at Community Corrections at 57-59 OldakerStreet in Devonport within two clear working days of the making of this order;
4 you must undergo such treatment of your illicit drug use problem as directed by your case manager or court diversion officers;
5 you must report to, and accept visits from, your case manager or court diversion officers;
6 you must, unless there are special circumstances, give your case manager at least two clear working days’ notice before any change of address;
7 you must not leave Tasmania except with the permission, granted either generally or in a particular case, of the Magistrates Court or this Court;
8 you must comply with all lawful directions of the Magistrates Court or this Court;
9 you must comply with all reasonable directions of your case manager and court diversion officers concerning the core conditions and program conditions of this order.
There will be further program conditions of the order that:
1 you must submit to drug testing as directed by your case manager or court diversion officers;
2 you must submit to detoxification or other treatment, whether or not residential in nature, as directed by your case manager or court diversion officers;
3 you must attend vocational, educational, employment, rehabilitation or other programs or as directed by your case manager or court diversion officers;
4 you must submit to medical, psychiatric or psychological treatment as directed by your case manager or court diversion officers
5 you must submit for urinalysis as required by your case manager or court diversion officers;
6 you must submit for oral fluid testing as required by your case manager or court diversion officers;
7 you must submit to random drug testing as required by your case manager or court diversion officers;
8 you must submit to residential detoxification and/or treatment if so directed by your case manager or court diversion officers;
9 you must not use any medication unless prescribed to you by a treating medical practitioner or recommended by a pharmacist;
10 you must attend counselling and/or treatment as directed by your case manager or court diversion officers;
11 you must maintain the use of, and remain contactable by, a mobile phone capable of sending and receiving messages about drug testing, case management and/or counselling appointments from your case manager and court diversion officers; and,
12 you must remain contactable at all times.