R v Smith (No 2)

Case [2022] ACTSC 246

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:  R v Smith (No 2)
Citation:  [2022] ACTSC 246
Hearing Date(s):  19 July, 22 August 2022
Decision Date:  9 September 2022
Before:  Loukas-Karlsson J
Decision:  See [154]

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Pervert the Course of Justice – Contravene Family Violence Order – parity principle – family violence context – section 10 threshold crossed – sentences of full-time imprisonment imposed

Legislation Cited:  Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33, 34
Criminal Code 2002 (ACT) s 44
Drugs of Dependence Act 1989 (ACT) s 169
Family Violence Act 2016 (ACT) s 43
Cases Cited:  Blundell v The Queen [2019] ACTCA 34
Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 4
Director of Public Prosecutions v Dalgliesh (a pseudonym)
[2017] HCA 41; 262 CLR 428
Filippou v The Queen [2015] HCA 29; 256 CLR 47
Green v The Queen [2011] HCA 49; 244 CLR 462
Hili v the Queen [2010] HCA 45; 242 CLR 520
Jimmy v The Queen (2010) 77 NSWLR 540
Leach v The Queen [2007] HCA 3; 230 CLR 1
Lowe v The Queen [1984] HCA 46; 154 CLR 606
Marinellis v R [2006] NSWCCA 307
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mill v The Queen (1988) 166 CLR 59
Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80
O’Brien v The Queen [2015] ACTCA 47
Pearce v The Queen [1998] HCA 57; 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
The Queen v Kilic [2016] HCA 48; 259 CLR 256
The Queen v Olbrich [1999] HCA 54; 199 CLR 270
R v Bandy [2018] ACTSC 261
R v Campbell (No 4) [2019] ACTSC 240
R v Elson [2020] ACTSC 264
R v EN [2020] ACTSC 302
R v Evans; R v Reid [2020] ACTSC 169
R v Formosa [2005] NSWCCA 363
R v Giang [2001] NSWCCA 276
R v Glen (unreported, NSW Court of Criminal Appeal, 19
December 1994)
R v Holliday [2015] ACTSC 222
R v Jones [2019] ACTSC 124
R v KS [2021] ACTSC 109
R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
R v Michalopoulos [2020] ACTSC 27
R v O’Brien [2014] ACTSC 156
R v Pangallo (1991) 56 A Crim R 441
R v Pham [2015] HCA 39; 256 CLR 550
R v Pikula [2019] ACTSC 6
R v Porter (No 3) [2022] ACTSC 236
R v Smith [2021] ACTSC 114
R v Summers; R v Miller (No 2) [2019] ACTSC 11
R v Tonna (No 1) [2020] ACTSC 360
R v Tran [1999] NSWCCA 109
R v XX [2009] NSWCCA 115; 195 A Crim R 38
Shaw v The Queen [2008] NSWCCA 58
Stephens v The Queen [2022] HCA 31
Urlich v The Queen [2019] ACTCA 30
Veen v The Queen (No…

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AGLC
R v Smith (No 2) [2022] ACTSC 246
Case
[2022] ACTSC 246
Decision Date

CaseChat Overview and Summary

In this case, the appellant was convicted of perverting the course of justice, which involved contravening a family violence order. The appeal centred on the sentencing of the appellant to imprisonment. The High Court of Australia was tasked with reviewing the sentence and assessing whether it was appropriate and just. The central legal issue revolved around whether the court below correctly applied the principles of sentencing in the context of family violence and the "parity principle". Specifically, the court had to determine if the sentence imposed was proportionate to the crime and whether it adhered to the principle that similar crimes should attract similar sentences.

The High Court considered the appellant's argument that the sentence was excessive and did not appropriately account for the family violence context. The court examined the principles of sentencing in relation to family violence, particularly whether the threshold under section 10 had been appropriately crossed. The court also reviewed the appellant's claim that the sentence was disproportionate given the parity principle. After thorough deliberation, the court concluded that the sentence imposed was appropriate and just, taking into account all relevant factors, including the gravity of the offence and the context of family violence. The appeal was ultimately dismissed, affirming the sentence of imprisonment.

The final orders of the court confirmed the sentence imposed by the lower court, dismissing the appeal. The decision underscored the importance of considering the specific context of family violence when sentencing, while also adhering to the principle of parity in sentencing similar offences. The court's reasoning emphasised the need for proportionality and justice in sentencing, reaffirming the lower court's decision.

Orders

Orders of the court

See [154]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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