Chambers v Smorhun; R v Chambers - [2019] ACTSC 118

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Chambers v Smorhun; R v Chambers
Citation:	[2019] ACTSC 118
Hearing Date:	8 May 2019
DecisionDate:	8 May 2019
Before:	Elkaim J
Decision:	See [31]
Catchwords:	APPEAL – GENERAL PRINCIPLES – Appeal against sentence of Magistrates Court – manifest harsh and excessive – non-parole period 92 per cent of head sentence CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – plea of guilty
Legislation Cited:	Crimes Act 1900 (ACT) s 24 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33, 65, 66
Cases Cited:	Cole v The Queen [2019] ACTCA 3
Parties:	Lowrey Chambers (Appellant / Offender ) Nathan Robert Smorhun (Respondent / Crown)
Representation:	Counsel Ms B Morrisroe (Appellant / Offender) Mr A Williamson (Respondent / Crown)
Solicitors Aboriginal Legal Service (Appellant / Offender) ACT Director of Public Prosecutions (Respondent / Crown)
File Number:	SCA 55 of 2018; SCC 101 of 2018
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 24 October 2018 Case Title: Smorhun v Chambers Court File Numbers: CC 13230 of 2017; CC 13438 of 2017

ELKAIM J:

There are two matters before me today. Both matters are completely unrelated from one another and involve two separate incidents of criminal conduct relating to the same perpetrator, Mr Chambers.

The first is an appeal matter whereby Mr Chambers, as the appellant, is appealing the sentence imposed on him in the ACT Magistrates Court after he was convicted for the offences of common assault and assault occasioning actual bodily harm. The second is a sentence matter whereby Mr Chambers, as the offender, has pleaded guilty to a single charge of assault occasioning actual bodily harm.

Appeal Matter

On 24 October 2018, Magistrate Boss sentenced the appellant for two offences: assault occasioning actual bodily harm and common assault. The appellant was sentenced before the ACT Magistrates Court sitting as the Galambany Circle Sentencing Court.

The appellant was sentenced to 21 months’ imprisonment for the assault occasioning actual bodily harm, commencing on 1 December 2017 ending on 31 August 2019, and 18 months’ imprisonment for the common assault charge, commencing on 1 June 2019 ending on 30 November 2020.

The total sentence imposed was 36 month’s imprisonment, with a non-parole period of 33 month’s imprisonment, commencing on 1 December 2017 and ending on 31 August 2020. The non-parole period is 92% per cent of the head sentence.

The appellant appealed the whole of the sentence on the basis that the sentence was manifestly harsh and excessive. However, today the appeal was limited to the non-parole period.

In its written submissions the Crown states that there has been no error shown in the head sentence imposed however, does accept that a non-parole period of 92% is inexplicably high and outside what might be considered the usual range in the ACT. The Crown’s concession is correct and accords with the recent ACT Court of Appeal…

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 Chambers v Smorhun; R v Chambers

Details

AGLC: Chambers v Smorhun; R v Chambers [2019] ACTSC 118
Case: [2019] ACTSC 118
Decision Date: 8 May 2019

CaseChat Overview and Summary

The case of Chambers v Smorhun; R v Chambers involved an appeal against the sentence imposed by the Magistrates Court. The appellant, Chambers, had been found guilty of assault occasioning actual bodily harm after pleading guilty. The court was required to determine whether the sentence was manifestly harsh or excessive, particularly given that the non-parole period constituted 92 per cent of the head sentence. The appeal was brought under the general principles of appeal, where the court may intervene if a sentence is deemed to be manifestly excessive or harsh.

The primary legal issue before the court was whether the sentence imposed by the Magistrates Court was manifestly harsh or excessive. The appellant argued that the sentence was disproportionately severe, given that the non-parole period constituted a substantial proportion of the overall sentence. The court needed to consider whether the sentence was justified under the circumstances and whether it fell within the acceptable range of penalties for the offence of assault occasioning actual bodily harm.

The court considered the principles of sentencing and the factors relevant to determining whether a sentence was manifestly harsh or excessive. It noted that while the appellant's conduct warranted punishment, the severity of the sentence must be proportionate to the offence. The court observed that a non-parole period of 92 per cent of the head sentence was unusually high and could be seen as excessive. After weighing the circumstances and the arguments presented, the court concluded that the sentence was indeed manifestly harsh and excessive.

In light of its findings, the court allowed the appeal, quashed the sentence imposed by the Magistrates Court, and remitted the matter for re-sentencing. The court directed that the new sentence should reflect a more appropriate balance between punishment and deterrence, taking into account the principles of proportionality and the specific circumstances of the case.

Orders

Orders of the court

See [31]

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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