| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0192
S ECR 2021 0194
S ECR 2021 0200
| THE KING | Crown |
| v | |
| COREY SMART BRAYDEN SMART ABRAHAM ABAS | Accused |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 July 2023 |
DATE OF SENTENCE: | 17 August 2023 |
CASE MAY BE CITED AS: | R v Smart & Ors |
MEDIUM NEUTRAL CITATION: | [2023] VSC 469 |
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CRIMINAL LAW – Sentence – Manslaughter – Fast-track matter – Plea following case conference and sentence indication hearing – Utilitarian value of guilty pleas – Remorse – Worboyes discount – Moderate Bugmy factors – Youthful offenders – One offender at risk of deportation – Some disparity justified between oldest offender and younger two – Favourable prospects for rehabilitation – Importance of fixing a non-parole period giving weight to combined sentencing factors – Sentencing Act 1991 (Vic) ss 5, 6AAA, 18.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Glynn | Office of Public Prosecutions |
| For Corey Smart | Mr J McMahon SC with Ms B Myers | Leanne Warren & Associates |
| For Brayden Smart | Mr C Mandy SC | Slades & Parsons |
| For Abraham Abas | Mr D Cronin | Papa Hughes Lawyers |
HER HONOUR:
Corey Smart, Brayden Smart and Abraham Abas, you have each pleaded guilty to the manslaughter of Nicholas Lee Henry on 20 February 2021. The maximum sentence for manslaughter is 25 years’ imprisonment.[1] You were each arraigned and pleaded guilty before me on 30 May 2023 following a sentence indication hearing.[2] The facts relied upon by the Crown at your plea hearing were drawn from a Summary of Agreed Facts for Sentencing Indication prepared on 10 May 2023.[3]
[1]The maximum sentence was increased to 25 years for offences committed after 1 July 2020; manslaughter is a category 2 offence which means that the provisions for s 5(2H) of the Sentencing Act 1991 apply.
[2]On 30 May 2023, I indicated that in respect of each of the accused that if they were to plead guilty to manslaughter at the earliest opportunity, I would impose the following sentences: for Corey Smart, a term of imprisonment of no more than 8 years and 6 months with a non-parole period of no more than 5 years and 6 months; for Brayden Smart, a term of imprisonment of no more than 7 years and 6 months with a non-parole period of no more than 4 years and 6 months; and for Abraham Abas, a term of imprisonment of no more than 7 years and 6 months with a non-parole period of no more than 4 years and 6 months: DPP v Smart & Ors (Supreme Court of Victoria, Jane Dixon J, 30 May 2023) (‘Sentence Indication Ruling’).
[3]The Crown requested that the Court treat the Summary of Agreed Facts previously tendered at the Sentence Indication hearing as the Summary of Prosecution Opening at the plea hearing and the Defence in each case did not object to this course: Transcript of Proceedings, DPP v Smart…
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- AGLC
- R v Smart [2023] VSC 469
- Case
- [2023] VSC 469
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the utilitarian value of Smart's guilty plea, the degree of remorse demonstrated, the potential application of the Worboyes discount, and the consideration of moderate Bugmy factors. Additionally, the court had to take into account that Smart was a youthful offender and one offender was at risk of deportation. The court also needed to consider the disparity in sentences between the oldest offender and the two younger offenders, as well as the prospects for rehabilitation.
In delivering the judgment, the court considered the importance of fixing a non-parole period that gave weight to the combined sentencing factors. The court acknowledged the value of Smart's guilty plea and the remorse shown, and applied the Worboyes discount accordingly. The court also recognised the moderate Bugmy factors and the risks associated with deportation for one of the offenders. While there was some disparity in sentencing between the oldest offender and the younger two, the court deemed it justified given the circumstances. The court further considered the favourable prospects for rehabilitation and ultimately determined an appropriate sentence that balanced all the relevant factors. The final orders were made under the Sentencing Act 1991 (Vic) sections 5, 6AAA, and 18.
Orders
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