Brown v Smorhun (No 2) - [2015] ACTSC 347

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Brown v Smorhun (No 2)
Citation:	[2015] ACTSC 347
Hearing Date(s):	6 October 2015
DecisionDate:	30 October 2015
Before:	Refshauge ACJ
Decision:	1. The conviction of Corey Brown for driving whilst disqualified on 6 October 2013 is confirmed. 2. Corey Brown is sentenced to two months imprisonment from 1 September 2015. 3. Corey Brown is disqualified from holding or obtaining a driver license for 12 months from today. 4. The conviction of Corey Brown for driving whilst disqualified on 15 August 2014 is confirmed. 5. Corey Brown is sentenced to four months imprisonment to commence on 1 November 2016. 6. The first three months of that sentence be served by periodic detention, the first period to commence on 6 November 2015 when Corey Brown is to report at 7 pm to the Symonston Periodic Detention. The last period will commence on 29 January 2016. 7. Corey Brown is disqualified from holding or obtaining a driver license for 12 months, to commence on 30 October 2016. 8. The sentence of imprisonment in order 7 be suspended on 31 January 2015 for nine months. 9. Corey Brown is required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of nine months from 1 February 2016, for a period of nine months, with a probation condition that he be under the supervision of the Director General or her delegate and obey all reasonable directions of the person delegated to supervise him, especially as to counselling and treatment for drug and alcohol use. 10. The conviction of Corey Brown for driving whilst he had a drug in his oral fluid on 15 August 2014 is confirmed. 11. Corey Brown is fined $700 with 12 months from today within which to pay that fine. 12. The automatic period of disqualification from holding or obtaining a license is reduced to 12 months. That disqualification is to commence on 30 October 2017. 13. The conviction of Corey Brown for the possession of drugs is confirmed. Corey Brown is fined $500 with 12 months from today within which to pay.
Catchwords:	APPEAL – Jurisdiction, practice and procedure – appeal from Magistrates Court – appeal against sentence CRIMINAL LAW – Jurisdiction, practice and procedure – judgment and punishment – sentencing – traffic offences – driving whilst disqualified from holding or obtaining a driver licence – driving with a prescribed drug in oral fluid – possession of a drug of dependence – significant criminal history
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT)
Cases Cited:	Brown v Smorhun [2015] ACTSC 334
Parties:	Corey Adam Brown (Appellant) Luke Smorhun, Andrew McKellar and Jason Craig (Respondents)
Representation:	Counsel Mr T Sharman (Appellant) Ms P Burgoyne-Scutts (Respondent)
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brown v Smorhun (No 2)

Details

AGLC: Brown v Smorhun (No 2) [2015] ACTSC 347
Case: [2015] ACTSC 347
Decision Date: 30 October 2015

CaseChat Overview and Summary

Corey Brown appealed against his sentence in the Magistrates Court for various traffic offences. The appeal was heard in the Supreme Court. The court had to decide whether the sentence was appropriate given the nature and circumstances of the offences and the offender's criminal history. The appeal challenged the length and form of the sentences as well as the disqualification periods for holding or obtaining a driver's licence.

The court considered the seriousness of the offences and the offender's significant criminal history. It noted that the offender had been convicted of similar offences on multiple occasions, demonstrating a persistent pattern of behaviour. The court concluded that the sentences imposed were appropriate given the circumstances, taking into account the need for general and specific deterrence. The court also considered the offender's potential for rehabilitation and the impact of the sentences on the offender and the community.

The Supreme Court confirmed the convictions but varied the sentences. Corey Brown was sentenced to two months imprisonment for driving while disqualified, to be served by periodic detention, and a 12-month disqualification period from 30 October 2016. He was also fined $700 for driving with a drug in his oral fluid, with a 12-month disqualification period from 30 October 2017. Additionally, he was fined $500 for possession of drugs, with the disqualification period reduced to 12 months. Corey Brown was also required to sign an undertaking to comply with good behaviour obligations for nine months, supervised by the Director General or her delegate.

The court made several orders to modify the sentences and disqualification periods. The conviction for driving while disqualified on 6 October 2013 was confirmed, with a two-month imprisonment sentence from 1 September 2015 and a 12-month disqualification period. The conviction for driving while disqualified on 15 August 2014 was also confirmed, with a four-month imprisonment sentence, to be served by periodic detention, and a 12-month disqualification period from 30 October 2016. The conviction for driving with a drug in his oral fluid on 15 August 2014 was confirmed, with a $700 fine and a 12-month disqualification period from 30 October 2017. Finally, the conviction for possession of drugs was confirmed, with a $500 fine and a 12-month disqualification period.

Orders

Orders of the court

1. The conviction of Corey Brown for driving whilst disqualified on 6 October 2013 is confirmed.

2. Corey Brown is sentenced to two months imprisonment from 1 September 2015.

3. Corey Brown is disqualified from holding or obtaining a driver license for 12 months from today.

4. The conviction of Corey Brown for driving whilst disqualified on 15 August 2014 is confirmed.

5. Corey Brown is sentenced to four months imprisonment to commence on 1 November 2016.

6. The first three months of that sentence be served by periodic detention, the first period to commence on 6 November 2015 when Corey Brown is to report at 7 pm to the Symonston Periodic Detention. The last period will commence on 29 January 2016.

7. Corey Brown is disqualified from holding or obtaining a driver license for 12 months, to commence on 30 October 2016.

8. The sentence of imprisonment in order 7 be suspended on 31 January 2015 for nine months.

9. Corey Brown is required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of nine months from 1 February 2016, for a period of nine months, with a probation condition that he be under the supervision of the Director General or her delegate and obey all reasonable directions of the person delegated to supervise him, especially as to counselling and treatment for drug and alcohol use.

10. The conviction of Corey Brown for driving whilst he had a drug in his oral fluid on 15 August 2014 is confirmed.

11. Corey Brown is fined $700 with 12 months from today within which to pay that fine.

12. The automatic period of disqualification from holding or obtaining a license is reduced to 12 months. That disqualification is to commence on 30 October 2017.

13. The conviction of Corey Brown for the possession of drugs is confirmed. Corey Brown is fined $500 with 12 months from today within which to pay.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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