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R v Smart

R v Smart

Case [2023] VSC 469 17 August 2023

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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…

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 Smart

Details

AGLC: R v Smart [2023] VSC 469
Case: [2023] VSC 469
Decision Date: 17 August 2023

CaseChat Overview and Summary

The case of R v Smart was heard by the Supreme Court of Victoria. The defendant, Smart, faced charges related to manslaughter. The nature of the dispute centred around the appropriate sentence to be imposed on Smart, who had pleaded guilty to the offence following a case conference and sentence indication hearing. The court was required to weigh various sentencing factors to determine an appropriate punishment.

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