Legal Research
Cases
R v Smith

R v Smith

Case [2022] ACTSC 162 6 July 2022

Aggravated & Exemplary Damages

Totality of Criminality

Parity

Issue Estoppel

Criminal Law

Type to search within this case.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Smith
Citation:	[2022] ACTSC 162
Hearing Date:	6 July 2022
DecisionDate:	6 July 2022
Before:	Norrish AJ
Decision:	See [85]
Catchwords:	CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Judgment and Punishment — Sentence — Aggravated burglary — Attempting to inflict grievous bodily harm —Joint criminal enterprise — Deprived background — Late plea of guilty mid trial — Parity — Totality of criminality — Fixing non parole periods — Total term of imprisonment of six years and seven months, commencing on 13 November 2021 and expiring on 12 June 2028, with a non-parole period of 4 years expiring on 12 November 2025.
Legislation Cited:	Criminal Code 2002 (ACT), ss 44, 308, 312, 318 Crimes (Sentencing) Act 2005 (ACT), ss 7, 10, 35
Cases Cited:	Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 R v Chevalier [2018] ACTSC 236 R v Langi (No 2) [2021] ACTSC 239 R v Lutze [2020] ACTSC 121 R v Lau [2020] ACTSC 120 R v CN [2019] ACTSC 293 Salcedo v Stretton (No 3) [2018] ACTSC 305 Jimmy v R [2010] NSWCCA 60 Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59 Pearce v The Queen [1998] HCA 57; (1998) 198 CLR 610 O'Brien v The Queen [2015] ACTCA 47 Cahyadi v The Queen [2007] 168 A Crim R 41 R v BC [2022] ACTCA 19 Bugmy v The Queen [2013] HCA 27; (2013) 249 CLR 571 R v Toumo'ua [2017] ACTCA 9 R v Ponfield [1999] NSWCCA 435 R v Fusimalohi [2015] ACTSC 220 Taylor v The Queen [2014] ACTCA 9
Parties:	The Queen ( Crown) Robert James Smith ( Offender)
Representation:	Counsel R Christensen SC ( Crown) J Sabharwal ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Sharman Robertson Solicitors ( Offender)
File Number:	SCC 83 of 2021

NORRISH AJ:

Robert James Smith appears for sentence today in relation to five offences for which he pleaded guilty three days into his trial, which was conducted before me a month ago. All the offences were committed on or about 1 September 2020.

The five offences are, by reference to the count numbers, in count 1, an offence of dishonestly riding in a motor vehicle, namely a blue BMW sedan belonging to Paul Buckley, the vehicle having been taken dishonestly without the consent of the owner. The maximum penalty for this offence, contrary to s 318(2) of the Criminal Code 2002 (ACT) (to which hereon after I will refer to as “the Criminal Code”) is five years' imprisonment and/or a monetary penalty, which is unrealistic in the circumstances of this offender.

Count 2 is an offence of entering and remaining in a building at Kambah in the Australian Capital Territory with Kye Rowe and trespassing with intent to commit an offence that involved causing harm or…

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 [2022] ACTSC 162
Case: [2022] ACTSC 162
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, Robert James Smith was convicted and sentenced for five criminal offences committed on 1 September 2020. The offences include riding a motor vehicle without consent, aggravated burglary, attempting to intentionally inflict grievous bodily harm, and theft. Smith pleaded guilty mid-trial. The court considered various legal issues, including parity, totality of criminality, and the principles set out in Markarian v The Queen. The court found that Smith and his co-accused, Rowe, were jointly involved in a criminal enterprise and that both should be held equally responsible for their actions. The court also noted the importance of considering Smith's disadvantaged background and mental health issues in the sentencing process.

The court sentenced Smith to a total term of imprisonment of six years and seven months, starting from 13 November 2021 and ending on 12 June 2028, with a non-parole period of four years expiring on 12 November 2025. The sentences for each count were as follows:

1. Count 1 - Riding a motor vehicle without consent: 11 months imprisonment, reduced from 12 months, commencing on 13 November 2021 and expiring on 12 October 2022.
2. Count 2 - Aggravated burglary: 3 years and 9 months imprisonment, reduced from 4 years, commencing on 13 June 2022 and expiring on 12 March 2026.
3. Count 3 - Attempting to intentionally inflict grievous bodily harm: 4 years and 3 months imprisonment, reduced from 4 years and 6 months, commencing on 13 March 2024 and expiring on 12 June 2028.
4. Count 5 - Theft (joint commission): 16 months imprisonment, reduced from 18 months, commencing on 13 March 2022 and expiring on 12 July 2023.
5. Count 6 - Theft (joint commission): 6 months imprisonment commencing on 13 March 2022 and expiring on 12 September 2022.

Orders