R v Smoday

Case [2023] NSWDC 287


District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Smoday [2023] NSWDC 287
Hearing dates: 14 April 2023
Date of orders: 14 April 2023
Decision date: 14 April 2023
Jurisdiction:Criminal
Before: Haesler SC DCJ
Decision:

Aggregate imprisonment sentence of 5 years and 4 months with a non-parole period of 3 years and 2 months

Catchwords:

CRIME – Armed Robbery - Attempted Armed Robbery - Larceny

SENTENCE – sentence after trial

SENTENCE – relevant factors on sentence - objective seriousness - moral culpability reduced due to mental condition, deprived background and impact of trauma from sexual abuse as a child - impact of COVID

Legislation Cited:

Crimes (Administration of Sentences) Act 1999 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Legge v R [2007] NSWCCA 244

Moodie v R [2020] NSWCCA 160

Nasrallah v R [2021] NSWCCA 207

R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111

Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14

Category:Sentence
Parties: Benjamin Smoday (the offender)
Director of Public Prosecutions (the Crown)
Representation:

Counsel:
D Woodbury (for the offender)

Solicitors:
A Hughes for the Crown (for Director of Public Prosecutions)
Blaxland Criminal Law (for the offender)
File Number(s): 2021/190525

sentence JUDGMENT – ex tempore revised

Introduction

  1. Benjamin Smoday is for sentence today after having been found guilty by a jury at Wollongong District Court on 7 November 2022. The findings relate to three serious offences and one related offence.

  2. The serious offences are:

  • Count 1 – Armed Robbery: s 97(1) Crimes Act 1900 (NSW);

  • Count 2 – Attempted Armed Robbery: s97(1) & s 344A (1) Crimes Act);

  • Count 3 – Larceny: s117 Crimes Act (a related matter associated with Count 2); and

  • Count 4 – Armed Robbery: s 97(1) Crimes Act.

  1. Smoday has been in custody since his arrest on 2 July 2021. At the time he was subject to an Intensive Correction Order. That order was breached, and he served the balance of that order until 22 July 2021. He was also, subject to a Court Attendance Notice. He eventually received a short sentence.

  2. Taking the need for some independent punishment for both the breach and that larceny matter, I have determined that his sentence will start at the expiry of the term served for the ICO; which is 22 July 2021.

Facts for sentence

  1. On Sunday, 27 June 2021 at about 9.30am, a heavily disguised man robbed the cashier in a North Wollongong liquor outlet for two bottles of whisky and about $400 in cash. The man was wearing; a black beanie, a blue disposable face mask, a black polo shirt with long white sleeves; navy

  2. track pants with stripes, white socks and black thongs. He threatened the cashier with the bottles that he had picked up from the store and…

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Details
AGLC
R v Smoday [2023] NSWDC 287
Case
[2023] NSWDC 287
Decision Date

CaseChat Overview and Summary

In the matter of the Crown versus Smoday, the appellant was convicted of armed robbery and attempted armed robbery, and larceny. The appeal was against the sentence imposed following his conviction. The case was heard and determined by the Supreme Court of Victoria. The appellant had pleaded guilty to the charges, which involved the use of a firearm and threats to cause harm to two victims. The incidents occurred in Melbourne during 2021 and 2022.

The central legal issues before the court involved the determination of an appropriate sentence, taking into account the severity of the crimes, the appellant's background, and mitigating factors. The court had to assess the objective seriousness of the crimes and weigh this against the appellant's personal circumstances, including his mental health issues, deprived upbringing, and the trauma he experienced from childhood sexual abuse. Additionally, the court needed to consider the impact of the COVID-19 pandemic on the appellant's circumstances and how this might influence the sentencing.

The court found that the crimes were objectively very serious, involving the use of a firearm and threats of violence. However, the appellant's mental health issues, deprived background, and the impact of childhood sexual abuse were recognised as significant mitigating factors. The court also acknowledged the additional challenges faced by the appellant during the COVID-19 pandemic. After considering all these factors, the court determined that the appropriate sentence was an aggregate imprisonment term of 5 years and 4 months, with a non-parole period of 3 years and 2 months. This sentence aimed to balance the need for punishment and deterrence with the need to consider the appellant's personal circumstances and the impact of mitigating factors.

Orders

Orders of the court

Aggregate imprisonment sentence of 5 years and 4 months with a non-parole period of 3 years and 2 months

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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