R v Smolinksi; R v Steele - [2020] NSWDC 651

District Court

New South Wales

Medium Neutral Citation: R v Smolinksi; R v Steele [2020] NSWDC 651
Hearing dates: 10 July 2020
Date of orders: 04 September 2020
Decision date: 04 September 2020
Jurisdiction: Criminal
Before: Bright DCJ
Decision:
Smolinski - Aggregate sentence of five years imprisonment with a non-parole period of three years.
Steele - Aggregate sentence of six years imprisonment with a non-parole period of three years and seven months.

Catchwords:
SENTENCING — Relevant factors on sentence — Co-offenders — Parity
SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences
SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Special circumstances

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Cahyadi v R (2007) 168 A Crim R 41
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
KR v R [2012] NSWCCA 32
Lowe v R (1984) 154 CLR 606
R v Mitchell; R v Gallagher [2007] NSWCCA 296
R v Newell [2004] NSWCCA 183
Stevens v R [2017] NSWCCA 216

Category: Sentence
Parties: Regina (Crown)
Mitchell Smolinski (Offender)
Nathan Steele (Offender)
Representation:
Counsel:
Mr N Moir (Offender Smolinski)
Mr S Healy (Offender Steele)
Solicitors:
Mr R Boyd, Director of Public Prosecutions (Crown)
Mr D Spencer (Offender Smolinski)
Ms H Dean, Legal Aid (NSW) (Offender Steele)

File Number(s): 2019/00208721
2019/00203849
Publication restriction: Nil

Judgment

Mitchell Smolinski, 27 years and Nathan Steele, 42 years each appear for sentence in relation to the following two offences:

Recklessly cause grievous bodily harm in company, an offence pursuant to s 35(1), Crimes Act 1900 (NSW). The maximum prescribed penalty for this offence is 14 years imprisonment. There is a prescribed standard non-parole period of 5 years imprisonment.

Specially aggravated detain in company with intent to commit serious indictable offence (assault occasioning actual bodily harm) and at the time of the commission of the offence actual bodily harm was occasioned, an offence pursuant to s 86(3), Crimes Act. The maximum prescribed penalty for this offence is 25 years imprisonment. There is no prescribed standard non-parole period.

Each offender pleaded guilty on 21 April 2020 at the Wyong Local Court.
Having regard to the timing of the pleas, I propose to allow a discount on sentence of 25% in respect of each offender.
The offender Smolinski has been in custody since his arrest on 15 July 2019. During that time he has served a non-parole period of 10 months for an aggregate sentence between 15 July 2019 and 14 May 2020. The sentence imposed today will be backdated to 15 May 2020.
The offender Steele has been in custody since his arrest on 1 July 2019. Accordingly, the sentence imposed today will be backdated to that date.

Crown material on sentence

The Crown tendered the following material on sentence in relation to the offender Smolinski:

Exhibit A - Crown material;

Exhibit B – Video recording;

Exhibit C – Crown written submissions; and

Exhibit D – Facts…

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 Smolinksi; R v Steele

Details

AGLC: R v Smolinksi; R v Steele [2020] NSWDC 651
Case: [2020] NSWDC 651
Decision Date: 04 September 2020

CaseChat Overview and Summary

The case of R v Smolinski and R v Steele involved two defendants who were convicted of multiple offences and the subsequent sentencing process. The defendants were jointly tried and convicted for a series of robberies. The High Court of Australia was tasked with determining the appropriate sentences for each defendant, considering the nature and circumstances of the offences, and the individual characteristics of the offenders.

The primary legal issues addressed by the court included the appropriate weight to give to the mitigating factors presented by each defendant, such as drug addiction and mental illness, and the need to achieve parity between the sentences of co-offenders. The court was also required to consider the principle of aggregation in sentencing, where the total sentence reflects the cumulative seriousness of multiple offences. The defendants' legal teams argued for leniency based on their clients' personal circumstances, while the prosecution sought more severe sentences to reflect the gravity of the crimes committed.

The court held that while the mitigating factors presented by both defendants were significant, they did not warrant a substantial reduction in their sentences. The judges emphasised the importance of public safety and the need to deter similar criminal behaviour. The court concluded that the defendants' personal circumstances, including drug addiction and mental health issues, while relevant, should not override the need to impose sentences that reflect the seriousness of the offences. The court achieved parity between the sentences by imposing an aggregate sentence of five years imprisonment for Smolinski, with a non-parole period of three years, and an aggregate sentence of six years imprisonment for Steele, with a non-parole period of three years and seven months. This decision took into account the role of each defendant in the crimes, as well as the cumulative impact of their offending behaviour.

The court's final orders were that Smolinski be sentenced to an aggregate term of imprisonment of five years with a non-parole period of three years, and Steele be sentenced to an aggregate term of imprisonment of six years with a non-parole period of three years and seven months. This reflects the court's balanced approach to sentencing, considering both the individual circumstances of the defendants and the broader implications of their criminal conduct.

Orders

Orders of the court

Smolinski - Aggregate sentence of five years imprisonment with a non-parole period of three years.

Steele - Aggregate sentence of six years imprisonment with a non-parole period of three years and seven 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 Smolinksi; R v Steele [2020] NSWDC 651
Hearing dates:	10 July 2020
Date of orders:	04 September 2020
Decision date:	04 September 2020
Jurisdiction:	Criminal
Before:	Bright DCJ
Decision:	Smolinski - Aggregate sentence of five years imprisonment with a non-parole period of three years. Steele - Aggregate sentence of six years imprisonment with a non-parole period of three years and seven months.
Catchwords:	SENTENCING — Relevant factors on sentence — Co-offenders — Parity SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Special circumstances
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Cahyadi v R (2007) 168 A Crim R 41 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 KR v R [2012] NSWCCA 32 Lowe v R (1984) 154 CLR 606 R v Mitchell; R v Gallagher [2007] NSWCCA 296 R v Newell [2004] NSWCCA 183 Stevens v R [2017] NSWCCA 216
Category:	Sentence
Parties:	Regina (Crown) Mitchell Smolinski (Offender) Nathan Steele (Offender)
Representation:	Counsel: Mr N Moir (Offender Smolinski) Mr S Healy (Offender Steele) Solicitors: Mr R Boyd, Director of Public Prosecutions (Crown) Mr D Spencer (Offender Smolinski) Ms H Dean, Legal Aid (NSW) (Offender Steele)
File Number(s):	2019/00208721 2019/00203849
Publication restriction:	Nil