R v Smoday - [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

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.
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.

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.
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

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
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…

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 Smoday

Details

AGLC: R v Smoday [2023] NSWDC 287
Case: [2023] NSWDC 287
Decision Date: 14 April 2023

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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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