Brown v Smorhun

Case [2015] ACTSC 334

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Brown v Smorhun

Citation:

[2015] ACTSC 334

Hearing Date(s):

6 October 2015

DecisionDate:

30 October 2015

Before:

Refshauge ACJ

Decision:

1.   The appeal be upheld.

2.     Corey Brown be re-sentenced.

Catchwords:

APPEAL – Jurisdiction, practice and procedure – appeal from Magistrates Court – appeal against sentence – justice and punishment – sentencing – misapprehensions of fact and principle – admission of fresh evidence – totality – delay in sentencing – inter-jurisdictional sentencing – failure to re-set a non-parole period – re-sentence

CRIMINAL LAW – Traffic offences – disqualified from holding or obtaining a driver licence in NSW – disqualification applicable in ACT – driving while he was disqualified from holding or obtaining a driver licence – first offender – driving with a prescribed drug in his oral fluid – repeat offender – possession of a drug of dependence – significant criminal history – efforts at rehabilitation

Legislation Cited:

Bail Act 1992 (ACT), s 56A

Crimes (Sentence Administration) Act 2005 (ACT), s 168
Crimes (Sentencing) Act 2005 (ACT), s 66
Drugs of Dependence Act 1989 (ACT), s 169
Magistrates Court Act 1930 (ACT), ss 214, 216, Pt 3.10, Div 3.10.2
Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 20(1)
Road Transport (Driver Licensing) Act 1999 (ACT), s 32(1)(a)
Road Transport (General) Act 1999 (ACT), s 66(3)

Cases Cited:

AB v The Queen [1999] 198 CLR 111

Arman v Wall [2008] ACTSC 61
Bedford v Earle (No 2) [2015] ACTSC 309
Blanco (1999) 106 A Crim R 303
Coombe v Douris (1987) 47 SASR 324
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Cotter v Corvisy (2008) 1 ACTLR 299
Director of Public Prosecutions v Grabovac [1998] 1 VR 664
Grooms v Toohey (2012) 7 ACTLR 1
Jovanovic v The Queen (1999) 92 FCR 580
King v Mainey [2008] ACTSC 108
Mill v The Queen (1988) 166 CLR 59
Moutrage v Haines [2008] ACTSC 36
Richardson v Pullen (1998) 28 MVR 488
Rogers v Green [2008] ACTSC 78
R v De Simoni (1981) 147 CLR 383
Scrivener v Papantaniou [2009] ACTSC 41
Thomson v The Queen [2015] ACTCA 16
Veen v The Queen (No 2) (1988) 164 CLR 465

Texts Cited:

Matusiewicz, Alexis K;  Hopwood, Christopher J;  Banducci, Annie N;  Lejuez, CW (2010), “The Effectiveness of Cognitive Behavioral Therapy for Personality Disorders”, Psychiatric Clinics of North America, 33(3), 657-85

D A Thomas, Principles of Sentencing (Heinemann:  London, 1979) 2nd ed

Parties:

Corey Adam Brown (Plaintiff)

Luke Smorhun, Andrew McKellar and Jason Craig (Respondents)

Representation:

Counsel

Mr T Sharman (Appellant)

Mr T Hickey (Respondents)

Solicitors

Sharman Lynch Solicitors (Appellant)

ACT Director of Public Prosecutions (Respondents)

File Number(s):

SCA 76 of 2015

Decision under appeal: 

Court/Tribunal:             ACT Magistrates Court

Before:  Special Magistrate Doogan

Date of Decision:         1 September 2015

Case Title:  Smorhun, McKellar and Craig v Brown

Court File Number(s):   CC13/10746, CC14/8676, CC14/8677, CC15/1923

REFSHAUGE ACJ:

  1. The appellant, Corey Brown, has a bad criminal record for traffic offences.

  1. On 6…

Continue reading Brown v Smorhun

Sign in free to access the full text

Details
AGLC
Brown v Smorhun [2015] ACTSC 334
Case
[2015] ACTSC 334
Decision Date

CaseChat Overview and Summary

In the case of Brown v Smorhun, the appellant, Corey Brown, sought an appeal against the sentence imposed by the Magistrates Court, specifically addressing the sentence handed down for driving while disqualified from holding or obtaining a driver’s licence, and driving with a prescribed drug in his oral fluid. The court was tasked with assessing whether the sentence was just and appropriate, considering the totality of the circumstances, the delay in sentencing, and whether the court misapprehended certain facts and principles.

The primary legal issue for the court was whether the sentence imposed was appropriate in light of the appellant's significant criminal history and efforts at rehabilitation. The court was also required to consider whether the sentence should have taken into account the inter-jurisdictional nature of the disqualification, the delay in sentencing, and whether the sentencing magistrate had misapprehended facts or principles relevant to the sentencing process. Additionally, the court had to determine if the failure to reset the non-parole period was a ground for appeal.

The court found that there had been a misapprehension of the facts and principles that should have been considered during sentencing. It was held that the delay in sentencing, coupled with the significant criminal history of the appellant, warranted a reassessment of the appropriate sentence. The court held that the sentence should have accounted for the totality of the circumstances, including the appellant's efforts at rehabilitation and the inter-jurisdictional nature of the disqualification. Consequently, the appeal was upheld, and Corey Brown was to be re-sentenced.

The court ordered that the appeal be upheld, and Corey Brown be re-sentenced by the Magistrates Court, taking into account all relevant factors, including the delay in sentencing, the totality of the circumstances, and the appropriate consideration of inter-jurisdictional issues.

Orders

Orders of the court

1. The appeal be upheld.

2. Corey Brown be re-sentenced.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.