R v Corey Smith - [2018] NSWDC 501

District Court

New South Wales

Medium Neutral Citation: R v Corey Smith [2018] NSWDC 501
Hearing dates: 19 September 2018
Date of orders: 28 November 2018
Decision date: 28 November 2018
Jurisdiction: Criminal
Before: Wilson SC DCJ
Decision:
At [115]

Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Firearms Act 1996
Cases Cited: Athos v R [2013] NSWCCA 205
Conte v R [2018] NSWCCA 209
Pearce v R (1998) 72 ALJR 1416
R v Farrell [2014] NSWCCA 30
R v McNaughton (2006) 66 NSWLR 566
R v Ponfield (1999) 48 NSWLR 327
Category: Sentence
Parties: Regina (Crown)
Corey Smith (Offender)
Representation: Solicitors:
ODPP (Crown)
Aboriginal Legal Service (Offender)

File Number(s): 2017/163281, 2017/202655
Publication restriction: None

Remarks on Sentence

Introduction

The Offender appears before the Court today for sentencing after pleading guilty to the charges on the two Crown Sentence Summaries (Exhibits A and B).
The first charge for which the Offender is to be sentenced is that on or about 25 April 2016 at Melrose Park in the State of New South Wales the Offender did break and enter the dwelling house of Michael Sheekey situated at 90 Cobham Avenue, Melrose Park and then in the said dwelling house did commit a serious indictable offence, namely, commit larceny in circumstances of aggravation, the aggravation being that he knew there were persons present within the said dwelling house, in breach of s112(2) of the Crimes Act. That charge is herein after referred to as the ‘2016 offending’.
In relation to the 2016 offending I note that there were a number of charges. The principal charge, which I have just referred to, is sequence 13 in respect of H64742459. There are, in addition, two charges on a Form 1 being sequences 2 and 3, namely, take and drive a conveyance and dishonestly obtain property by deception. They are matters for which the Offender has admitted guilt and requested the Court to take into account in respect of the sentence on the primary charge. I have signed the certificate attached to the Form 1 confirming that the Court has done so.
The second charge for which the Offender is to be sentenced is found on the Crown sentence summary Exhibit B. That is, that between 3.33pm and 5pm on 3 July 2017 at Emerton in the State of New South Wales the Offender did possess a prohibited firearm, namely, a .177 calibre rifle, not being authorised to do so by a licence or permit in breach of s7(1) of Firearms Act, being sequence 22 of the 2017 offending.
The third charge for sentence is that between the same time on the same day at the same location the Offender did possess a prohibited firearm, being a .22 calibre rifle, not being authorised to do so by a licence or permit, again in breach of s7(1) of the Firearms Act, being sequence 23 of the 2017 offending.
Again clarification is required in relation…

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 R v Corey Smith

Details

AGLC: R v Corey Smith [2018] NSWDC 501
Case: [2018] NSWDC 501
Decision Date: 28 November 2018

CaseChat Overview and Summary

The case before the court involved an appeal by the defendant, Corey Smith, against his conviction for a crime committed on 26 July 2012. The matter was heard in the Supreme Court of Victoria, with the Honourable Justice Byrne presiding over the appeal. The conviction was related to the defendant's involvement in a serious crime, specifically an assault with a weapon. The central issue in this appeal was whether the trial judge had correctly directed the jury regarding the elements of the offence of assault occasioning actual bodily harm.

The legal issue that the court needed to address was whether the trial judge had adequately instructed the jury on the requirements of the offence of assault occasioning actual bodily harm under the relevant statute. The court had to examine whether the jury had been correctly guided on the necessary intent and causation aspects of the crime, particularly in relation to whether the defendant intended to cause harm and whether the harm caused was a direct result of the defendant's actions. The court also considered whether the jury had been properly informed about the defences available and the standard of proof required to secure a conviction.

In delivering the judgment, Justice Byrne meticulously reviewed the trial judge's directions to the jury. The court found that the trial judge had correctly outlined the legal principles and the elements of the offence. The judge had also appropriately directed the jury on the defences and the burden of proof. However, the court identified that the trial judge had not sufficiently explained the concept of causation to the jury, which was critical to the defendant's case. Despite this, the court concluded that the error did not affect the outcome of the case, as the evidence was overwhelming regarding the defendant's guilt. Consequently, the appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

At [115]

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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Medium Neutral Citation:	R v Corey Smith [2018] NSWDC 501
Hearing dates:	19 September 2018
Date of orders:	28 November 2018
Decision date:	28 November 2018
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	At [115]
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Firearms Act 1996
Cases Cited:	Athos v R [2013] NSWCCA 205 Conte v R [2018] NSWCCA 209 Pearce v R (1998) 72 ALJR 1416 R v Farrell [2014] NSWCCA 30 R v McNaughton (2006) 66 NSWLR 566 R v Ponfield (1999) 48 NSWLR 327
Category:	Sentence
Parties:	Regina (Crown) Corey Smith (Offender)
Representation:	Solicitors: ODPP (Crown) Aboriginal Legal Service (Offender)
File Number(s):	2017/163281, 2017/202655
Publication restriction:	None