R v Smethurst - [2018] NSWDC 488

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Smethurst [2018] NSWDC 488
Hearing dates: 9 November 2018
Date of orders: 09 November 2018
Decision date: 09 November 2018
Jurisdiction: Criminal
Before: Wilson SC DCJ
Decision:
At [64]

Catchwords: CRIMINAL LAW – sentencing – assault occasioning actual bodily harm – domestic violence
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Conte v R [2018] NSWCCA 209
Munda v Western Australia (2013) 649 CLR 600
R v McNaughton (2006) 66 NSWLR 566
R v Todd [1982] 2 NSWLR 517
The Queen v Kilic (2016) 259 CLR 256
Veen v The Queen (No 2) (1988) 164 CLR 465
Category: Sentence
Parties: Regina (Crown)
Justin Smethurst (Offender)
Representation:
Counsel:
Mr S Healy (Offender)
Solicitors:
ODPP (Crown)
Legal Aid (Offender)

File Number(s): 2016/154323
Publication restriction: None

Introduction

The Offender, Justin John Smethurst, appears before the Court today for sentencing in relation to an offence under s59(1) of the Crimes Act, being assault occasioning actual bodily harm. It has a maximum penalty of five years' imprisonment and no standard non parole period. On a s166 certificate is a further charge, sequence 1, of common assault which I am asked to deal with as part of the sentencing exercise in this case.
The Offender was committed for trial on 3 March 2017 from Gosford Local Court. A trial date was fixed for 24 September 2018. On 25 September 2018, the Offender pleaded guilty, after negotiating with the Crown, to the charges now before the Court.
The offending was committed on 22 February 2016 and the Offender was arrested on 20 April 2016. At the time of the offence, the Offender was the subject of a number of good behaviour bonds as well as a series of intensive corrections orders, all of which were ultimately revoked.

Agreed Facts

The facts agreed between the parties are set out in Exhibit A and provide as follows:

Common Assault

As at 22 February 2016, Ms Hughes, the complainant, had known the Offender for a number of years. The complainant was at her residence of 3 Bottlebrush Close, Wyoming. At approximately 10pm, the Offender and the complainant were on the lounge inside the premises and the two of them started having an argument in part about the complainant's ex-partner being released from custody. In the course of that argument the Offender stood up and picked up one of the pillows on the lounge and placed it over the complainant's face.

Assault Occasioning Actual Bodily Harm

The complainant then ran out of the rear door into the backyard. The Offender pushed the complainant on the grass and then started to drag her back towards the house by her shirt. This caused a graze on her back.
The complainant ran towards a neighbour's house. The Offender caught up with her and attempted to grab her but the complainant pulled away and ran onto the driveway of a nearby residence, number 10.
The occupant of number…

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 Smethurst

Details

AGLC: R v Smethurst [2018] NSWDC 488
Case: [2018] NSWDC 488
Decision Date: 09 November 2018

CaseChat Overview and Summary

The case of R v Smethurst was heard in the relevant court where the defendant, Smethurst, faced charges related to assault occasioning actual bodily harm. The incident in question involved domestic violence, and the victim suffered physical injuries as a result of the defendant's actions. The court was tasked with determining the appropriate sentence for the defendant, considering the nature and circumstances of the offence.

The legal issues before the court centred on the principles of sentencing for assault occasioning actual bodily harm, particularly in cases involving domestic violence. The court had to weigh various factors, including the severity of the assault, the relationship between the parties, and the defendant's prior criminal history. Additionally, the court needed to consider the impact of domestic violence on the victim and the community, as well as any mitigating or aggravating circumstances present in the case.

In reaching its decision, the court carefully considered the evidence presented and the arguments from both parties. It evaluated the relevant sentencing principles and guidelines, taking into account the specific circumstances of the offence. The court found that the assault was severe and had a significant impact on the victim, but also considered the defendant's background and the context of the domestic violence. After thorough deliberation, the court determined the appropriate sentence, which was outlined in the judgment at [64]. The court's decision aimed to balance the need for punishment, deterrence, and rehabilitation, while also ensuring justice for the victim.

Orders

Orders of the court

At [64]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Smethurst [2018] NSWDC 488
Hearing dates:	9 November 2018
Date of orders:	09 November 2018
Decision date:	09 November 2018
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	At [64]
Catchwords:	CRIMINAL LAW – sentencing – assault occasioning actual bodily harm – domestic violence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Conte v R [2018] NSWCCA 209 Munda v Western Australia (2013) 649 CLR 600 R v McNaughton (2006) 66 NSWLR 566 R v Todd [1982] 2 NSWLR 517 The Queen v Kilic (2016) 259 CLR 256 Veen v The Queen (No 2) (1988) 164 CLR 465
Category:	Sentence
Parties:	Regina (Crown) Justin Smethurst (Offender)
Representation:	Counsel: Mr S Healy (Offender) Solicitors: ODPP (Crown) Legal Aid (Offender)
File Number(s):	2016/154323
Publication restriction:	None