R v Smith - [2021] ACTSC 114

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Smith
Citation:	[2021] ACTSC 114
Hearing Date:	3 June 2021
Decision Date:	3 June 2021
Before:	Mossop J
Decision:	See [52]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – sexual intercourse without consent – contravene a family violence order – offences in the upper end of mid range objective seriousness –
plea of guilty entered during the trial – victim and offender were in a relationship involving domestic violence – extensive criminal history – history of domestic violence offences including against same victim – medium to high risk of reoffending – sentence of
imprisonment imposed
Legislation Cited:	Crimes Act 1900 (ACT), s 54(1) Family Violence Act 2016 (ACT), ss 8, 43(2)
Cases Cited:	Barbaro v The Queen [2012] VSCA 288; 226 A Crim R 354 Cranfield v The Queen [2018] ACTCA 3 Imbornone v The Queen [2017] NSWCCA 144 R v Palmer [2017] ACTSC 357
Parties:	The Queen (Crown) Kynan Smith (Offender)
Representation:	Counsel
K Lee (Crown)
J Moffett (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
Boxall Legal (Offender)
File Number:	SCC 149 of 2020
MOSSOP J:
Introduction

1. On 30 March 2021 the offender, Kynan Smith, pleaded guilty to the offence of sexual intercourse without consent contrary to s 54(1) of the Crimes Act 1900 (ACT), for which
the maximum penalty is 12 years’ imprisonment. He also pleaded guilty to contravening
a family violence order (FVO) contrary to s 43(2) of the Family Violence Act 2016 (ACT),
for which the maximum penalty is 5 years’ imprisonment, 500 penalty units or both.

The pleas were entered on the second day of the offender’s jury trial, but before the
Crown had opened its case. The Crown accepted the pleas in full satisfaction of the indictment on the basis that the facts relating to a charge of choking, suffocating or strangling, and three transfer charges of common assault, would be taken into account in relation to the contravention of the FVO.

Facts
3.	The offences in this matter were committed by the offender against his partner between 24 and 25 March 2020.
4.	The relationship between the victim and the offender commenced in late 2018. The relationship was one involving domestic violence and was marked by controlling and abusive behaviour by the offender towards the victim. In February 2019 the offender assaulted the victim. This led to criminal charges and the victim applying for a FVO, which was made by the ACT Magistrates Court on 7 May 2019 for 12 months. The FVO
prohibited the offender from being at the victim’s residence unless expressly invited,
being at the victim’s place of work and engaging in behaviour that constituted family
violence.
5.	On 18 July 2019 the offender pleaded guilty and was sentenced to 8 months’
imprisonment for the assault in February. The offender was released from custody on 6 January 2020. Upon his release the offender and the victim resumed their relationship.…

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 [2021] ACTSC 114
Case: [2021] ACTSC 114
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, Kynan Smith was convicted of sexual intercourse without consent and contravening a family violence order. The court was required to determine the appropriate sentence for these offences, considering factors such as the nature and circumstances of the offences, the offender's criminal history, and the impact on the victim. The court also had to consider the offender's plea of guilty and the time he had already spent in custody.

The court found that the offences were at the upper end of mid range objective seriousness due to the demeaning and controlling behaviour exhibited by the offender, the victim's vulnerability, and the context of domestic violence. The court considered the offender's extensive criminal history, which included previous offences of domestic violence against the same victim. The court also took into account the offender's plea of guilty, which was entered on the second day of the jury trial before the Crown opened its case. The court noted that the offender had spent 175 days in custody prior to the sentencing hearing.

The court decided that a custodial sentence was necessary to achieve the purposes of general and specific deterrence, protection of the victim and the community, denunciation of the offender's conduct, and adequate punishment. The court determined that the sentences for both offences should be served concurrently to a significant degree, with the sentence for contravening the family violence order being cumulative as to 8 months upon the sentence for sexual intercourse without consent. The court imposed an aggregate sentence of 40 months and 12 days, with a non-parole period of 28 months. The sentence was backdated to 10 December 2020 to take into account the time the offender had already spent in custody.

The court's orders were that the offender be convicted and sentenced to imprisonment for 32 months and 12 days on the charge of sexual intercourse without consent, and for 21 months and 15 days on the charge of contravening a family violence order, with the non-parole period commencing on 10 December 2020 and ending on 9 April 2023.

Orders