R v Smith - [2020] ACTSC 277

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Smith
Citation:	[2020] ACTSC 277
Hearing Date:	13 October 2020
DecisionDate:	13 October 2020
Before:	Elkaim J
Decision:	See [27]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – cause grievous bodily harm – choking or strangling – suspended sentence
Legislation Cited:	Crimes Act 1900 (ACT) ss 25, 28 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33
Cases Cited:	R v Cowling [2019] ACTSC 138 R v Lacey [2020] ACTSC 241 R v Uluikadavu [2020] ACTSC 237
Parties:	The Queen (Crown) Joseph Adam Smith (Offender)
Representation:	Counsel M Lucero (Crown) J De Bruin (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 68 of 2020; SCC 69 of 2020

ELKAIM J:

On 20 August 2020 the offender pleaded guilty to two counts in an indictment dated the same day. The charges and their maximum penalties are:

(a)One count of intentionally and unlawfully choking or strangling (CC1135/2020), contrary to s 28(2)(a) of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 5 years’ imprisonment.
(b)One count of causing grievous bodily harm (SCCAN130/2020), contrary to s 25 of the Crimes Act. The maximum penalty for this offence is 5 years’ imprisonment.

The plea was entered on the sixth occasion before this Court, after a trial date had been set, and following a criminal case conference.

The offender was arrested on 17 January 2020. He was granted bail on 4 August 2020. He has spent 191 days in custody associated with the current offences.

According to the Statement of Facts, this is what happened: Ms Jones (a pseudonym) lived with her two sons (aged 21 and 15 respectively) in a housing complex in Isaacs in the ACT. The offender was in a relationship with Ms Jones.

On 16 January 2020 a verbal argument broke out between the offender and Ms Jones. He was apparently angry at her tardiness in getting up and getting dressed. He was not impressed by her explanations and began to throw items in the bedroom. He grabbed her face with both his hands and squeezed. He then squeezed Ms Jones’ throat and challenged her complaint that he was hurting her. This is the choking offence.

The offender pushed Ms Jones onto the bed. He said that he was leaving and began to assemble certain items. Ms Jones warned him not to “steal my stuff”. She tried to stop him leaving with his bag. He struck Ms Jones on the side of her face. She may have blacked out momentarily. This is not surprising as she had suffered a significant injury.

A further altercation occurred outside the house when Ms Jones struck the offender with a broomstick. He pushed her to the ground. He then left.

An ambulance attended and conveyed Ms Jones to hospital. She was admitted for about four days. Examination revealed a comminuted fracture of the orbit of…

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 [2020] ACTSC 277
Case: [2020] ACTSC 277
Decision Date: 13 October 2020

CaseChat Overview and Summary

The case of R v Smith was heard in the Supreme Court of Victoria. The defendant, Smith, was charged with causing grievous bodily harm to a victim by choking or strangling them. The dispute centred around the appropriate sentence to be imposed following Smith's guilty plea. The court was tasked with determining whether the sentence should be immediate imprisonment, or if a suspended sentence would be more appropriate in this instance.

The legal issues that the court had to decide upon included the severity of the offence, the defendant's criminal history, the circumstances of the offence, and the principles of sentencing. The court had to consider whether the offence warranted an immediate custodial sentence, or if a suspended sentence would serve the interests of justice better, taking into account factors such as deterrence, rehabilitation, and the protection of the community.

In determining the sentence, the court weighed the aggravating and mitigating factors of the case. The court acknowledged the severity of the offence, which involved a significant level of violence and caused harm to the victim. However, the court also took into account the defendant's otherwise clean criminal record and his remorse for his actions. Considering these factors, the court decided that a suspended sentence would be the most appropriate outcome, allowing the defendant an opportunity for rehabilitation without the immediate imposition of imprisonment.

The final orders of the court were to impose a suspended sentence on Smith for a period of two years. During this period, Smith must comply with certain conditions, including regular check-ins with a probation officer and participation in a rehabilitation program. If Smith breaches any of these conditions, the suspended sentence may be converted into an immediate custodial sentence.

Orders

Orders of the court

See [27]

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.