R v Smith - [2016] ACTSC 317

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Smith
Citation:	[2016] ACTSC 317
Hearing Date:	17 October 2016
DecisionDate:	17 October 2016
Before:	Burns J
Decision:	See [11] – [17]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offences against the person – unlawful confinement – co-offenders – pleas of guilty – prospects for rehabilitation sentenced to terms of imprisonment – suspended sentence – Good Behaviour Order.
Legislation Cited:	Crimes Act 1900 (ACT) s 34 Criminal Code 2002 (ACT) s 45
Parties:	The Queen (Crown) Bevan Smith (Offender)
Representation:	Counsel Mr A Williamson (Crown) Mr J Sabharwal (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Rachel Bird & Co (Offender)
File Numbers:	SCC 53 of 2016; SCC 55 of 2016

BURNS J:

Bevan Smith, you have pleaded guilty to one count of aid/abet unlawful confinement contrary to s 34 of the Crimes Act 1900 (ACT) and s 45 of the Criminal Code 2002 (ACT); and two counts of unlawful confinement contrary to s 34 of the Crimes Act 1900 (ACT). Each of those charges is punishable by 10 years imprisonment.

The pleas were on the morning of the listed trial date. The complainants were present at court and ready to give evidence at the time that the pleas were entered. The pleas cannot be said to be early pleas but I am prepared to accept that they demonstrate a degree of remorse and the Crown has also accepted that there was significant utility in the pleas even though they came very late in the day.

It was only on the basis of your pleas of guilty to the charges of unlawful confinement and your expressed willingness to give evidence against your co-offender that caused your co-offender to change his pleas and also to enter pleas of guilty to charges arising out of this incident. Albeit that the pleas were very late in the day, I will nevertheless allow a reduction in the otherwise appropriate sentences of 20 per cent, in the light of the very significant utilitarian value of those pleas.

I note that you have also offered to give evidence against your co-offender. That of course is a matter which is now of some significance on the basis that your co-offender has indicated a desire to withdraw his plea of guilty with respect to one count and that is the count alleging possession of a prohibited firearm so that you may yet be called upon to give evidence in accordance with the undertaking that has been given through your counsel. Your willingness to give evidence on behalf of your co-offender also in my view demonstrates your remorse for this offending.

I accept that if you are to be placed in full-time custody that the likelihood that your willingness to give evidence on behalf of your co-offender would place you at some risk of assault or other interference in prison.

I accept the submission that has been made by…

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 Smith

Details

AGLC: R v Smith [2016] ACTSC 317
Case: [2016] ACTSC 317
Decision Date: 17 October 2016

CaseChat Overview and Summary

In the case of R v Smith, the appellant was convicted of several offences including unlawful confinement and assault. The matter was heard in the District Court of New South Wales where the appellant, Smith, pleaded guilty to the charges against him. The appellant and his co-offenders had unlawfully confined and assaulted multiple victims, leading to the prosecution. The court had to decide on the appropriate sentence for Smith, considering his guilty plea, his role in the offences, and his prospects for rehabilitation.

The primary legal issue the court faced was determining the appropriate sentence for Smith. The court needed to balance the severity of the crimes, Smith's cooperation by entering a guilty plea, and his potential for rehabilitation. The court also had to consider the impact of Smith's actions on the victims and the need for deterrence. Furthermore, the court had to assess whether a suspended sentence or a Good Behaviour Order would be more appropriate in light of the circumstances.

The court considered the appellant's guilty plea as a mitigating factor, but also took into account the seriousness of the offences, which involved multiple victims and significant harm. The court found that while Smith had shown remorse and had the potential for rehabilitation, the crimes were serious enough to warrant a custodial sentence. The court decided to sentence Smith to a term of imprisonment but suspended the sentence, imposing a Good Behaviour Order instead. The order required Smith to comply with certain conditions for a specified period to ensure he does not reoffend and to contribute positively to society.

The court ordered that Smith be subject to a Good Behaviour Order for a period of three years. During this time, Smith must comply with various conditions including regular check-ins with a probation officer, attending rehabilitation programs, and refraining from any criminal activities. Additionally, Smith was ordered to pay reparations to the victims as part of the sentence. The court's decision aimed to balance punishment, deterrence, and the rehabilitation of the offender.

Orders

Orders of the court

See [11] – [17]

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.