STATE OF TASMANIA v DANIEL NICKY SMITH 8 DECEMBER 2021
COMMENTS ON PASSING SENTENCE ESTCOURT J
The defendant Daniel Nicky Smith now aged 42, has pleaded guilty to one count of assault.
As at January 2019, he and the complainant, aged 27, had been in a relationship for a period of approximately two years.
From 16 November 2018, the defendant was subject to optical and listening device surveillance as part of a police operation Monet. Pursuant to a warrant the use of surveillance was authorised in the defendant’s Holden Captiva, which recorded audio within the car and video depicting primarily the driver’s seat of that vehicle, but also in part, the passenger’s seat.
At 3:44am on Sunday, 13 January 2019, the defendant and the complainant were together at an address in Glenorchy. Approximately 27 minutes of surveillance footage of the defendant and complainant together was captured between 3:44am, when the defendant entered his vehicle, and 4:11am, when the vehicle came to a stop at complainant’s residence in Hobart.
The defendant entered the driver’s seat of the car at 3:44am. He then engaged the complainant in an argument while she stood outside the car. He said, “The front window is open, just throw everything in there and fuck off then”. The defendant told the complainant she was a “fucking piece of shit”, and said “I could break your fucking neck right there and you wonder why”. The complainant began to respond, and the defendant punched the interior of the car, saying, “Don’t fucking talk, let me try and talk for fucking once cunt.” The complainant tried to quieten the accused.
The defendant told the complainant “Get in the fucking car and I’ll give you a fucking lift, fucking now.” The complainant made to get into the back seat of the car, to which the defendant said, “I’m not a fucking chauffeur, get in the front, I’m sick of your shit cunt of a fucking attitude.” The complainant sat in the front seat of the car and the defendant drove off, as the complainant cried.
The defendant and complainant drove south towards Hobart. The complainant continued to cry, as the defendant continued to abuse her. During the abuse, the defendant called the complainant a “fucking whore”, a “piece of shit”, “fucking cunt”, “fucking scumbag fucking maggot-cunt”, a “self-centred using fucking dog” and a “fucking stupid psycho cunt” and told her “shut your fucking mouth cunt” a number of times. The complainant continued to try to calm the defendant down and continued to cry.
The defendant also made a number of threats towards the complainant during the drive, including: “Don’t fucking lie to me cunt, otherwise I’ll kick you straight through that fucking door.” and “I don’t want to but I will smash your fucking face in.”
At approximately 3:53am, the defendant stopped the car on Lenah Valley Road, telling the complainant, “stop looking at me like that”. The complainant said, scared, “I’m not looking at you like anything”. After a moment the defendant drove off.
At 3:56am, the defendant grabbed the complainant to the hair and held it for a number of seconds while driving. As he did, the complainant screamed, “Please, no no no no no, let go Buzz, let go Buzz”, sounding upset. The defendant told the complainant she was “carrying on like a fuckhead”. The complainant became upset, asking the defendant that if he was going to kill her, to do it quickly.
At 3:57am, the defendant again leant across to the complainant and grabbed her. The complainant screamed, “Don’t, fucking stop Buzz, leave me alone”.
At 3:59am, the defendant abused the complainant, telling her she would “never shut her fucking mouth” and that she would always be a “fucking junkie gutter fucking slut”. As he drove, he grabbed the complainant to the head, pushing her head towards his lap. The complainant screamed loudly, saying, “Don’t, fuck off, let me out now”. The complainant struggled to talk as the defendant held her head downwards.
The defendant told the complainant, “Stop, or I will knock you out”. The complainant responded, “Let go of me”.
The defendant then stopped the car on Melville Street. There, he grabbed the complainant around the neck, using his arm and elbow in a headlock to hold her down and pull her toward him and downwards. The complainant continued to scream. The defendant told her, “Fucking stop and I will stop”. He held her for approximately 20 seconds in a headlock as the complainant said, “What are you doing”. The defendant let the complainant go, saying, “Stop then, you fucking hero cunt”.
The defendant started to breathe heavily and told the complainant that he was having a heart attack. He asked the complainant to put the car in park. She did that, and then ran away from the car. The defendant followed a short time later. The complainant was heard to scream out after the defendant was out of the car.
The defendant and complainant remained outside the car for a period of some minutes. The complainant can be heard to say “let go” a number of times.
The defendant and the complainant returned to the car at 4:04am. They drove to the complainant’s house and left the car at 4:11am.
The defendant was arrested on 18 January 2019. He participated in an interview but asked that it be terminated after hearing the allegation.
The defendant was later served with a full non-contact police family violence order.
The complainant read a victim impact statement to the Court. It is plain that she was profoundly affected by the assault and thought, understandably, that the defendant might kill her that night. However, she expressly forgives the defendant, although pointing out that that will not eliminate the psychological scarring she bears.
The defendant had, until very recently, lived a normal life. He completed an apprenticeship as a carpenter joiner, was married and had a son and had his own successful joinery business.
All of that unravelled in July of 2018 when he attended a gathering to commemorate the anniversary of his father’s death. Up until that point he had not been never been involved in drugs and had not been a user, and had disliked the lifestyle that came with it.
On this day however, drugs were present. Someone attending gave him cocaine and he was instantly hooked.
From then on became a user himself. He moved from cocaine to ice, was using both and using more and more. He lost total control of his life.
He separated from his wife met the complainant and they commenced a relationship.
I am told that he was trying to stop but failing and instead of stopping seemed to be using more and more. By that time he was also heavily immersed in the drug culture, as evidenced by the fact that he had surveillance attached to his vehicle as part of a covert drug surveillance operation.
He had used drugs on that day, and was using every day at that time. I am told that it took being charged with this offence to finally cause the defendant to address his drug addiction.
After being charged he took some time to wean himself off illicit substances, but by March 2019 he was, in the main, able to avoid using again, though there have been some short periods of relapse.
The defendant has no relevant prior convictions but some subsequent offending makes it clear that he cannot claim that this was isolated or aberrant behaviour during this period of his life. However before he received a suspended sentence in March of this year he had been dealt with by way of fines and community service orders.
When the current offences were committed the defendant had only been dealt with by courts on various driving and traffic infringement matters. He has no prior convictions for family violence matters, and no prior convictions for assaults or any other offences of violence. In fact his prior convictions until the point of the current offending are reflective of his ordinary respectable successful life and back ground. Something to which a number of glowing references tendered suggest he is capable of returning.
I record the offence as a family violence offence pursuant to the Family Violence Act 2004, s 13A.
I have had the benefit of a pre-sentence report. There are no significant mitigating circumstances and the defendant, while expressing a desire to change his behaviours, seemingly still lacks insight into his offending. However I am told by his counsel that he is deeply remorseful and embarrassed, finding it difficult to believe he behaved in the way he did. His lack of insight may well be attributable of course to the drugs that he was abusing at the time.
The defendant accepts the incident would have been terrifying and degrading for the complainant, as well as embarrassing for her as it partly occurred in public.
Psychologically the incident has obviously had a significant impact on the complainant, and for that I am told, the defendant has deep remorse and begs forgiveness. My assessment of the defendant’s demeanour in the dock on two occasions now is consistent with him being ashamed and remorseful.
I have had the opportunity to view the video recording of the incidents, and I note that while the assaults occurred in a context of frightening drug fuelled rage, in circumstances where the complainant had no ability to escape, in terms of the physical assaults there were no injuries and the crimes must be regarded at the lower end of the scale of seriousness for their category in that regard.
I take into account the defendant’s plea of guilty for which he is entitled to a discount on sentence. Although I note that the case against him was indefensible given the video recording. But, nonetheless, it spared the complainant the trauma and embarrassment of giving evidence in a court in relation to these matters.
The defendant has spent almost 2 months in total in custody now, and I am of the view that given his background and lack of prior offending, such a period of incarceration is likely to provide incentive to return his life to its previously normal state.
The defendant is convicted of assault, is sentenced to 12 months’ imprisonment backdated to 14 October 2021 (which is 55 days), and I order that the balance of that sentence from today be suspended on condition that the defendant commit no offence punishable by imprisonment for a period of two years from today.