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Roberts v Smorhun

Roberts v Smorhun

Case [2013] ACTSC 218 1 November 2013

Appeal

Aggravated & Exemplary Damages

Sentencing

Admissibility of Evidence

Criminal Law

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TOBY DAVID ROBERTS v NATHAN ROBERT SMORHUN
[2013] ACTSC 218 (1 November 2013)

APPEAL – Appeals from the Magistrates Court – appeal against sentence – appeal on the ground of manifest excess – appeal upheld
CRIMINAL LAW – Particular offences – domestic violence offences – contraventions of a domestic violence order – seriousness of – necessity of deterrent sentences – importance of specific and general deterrence to – aggravating features of such contraventions
CRIMINAL LAW – Sentencing – whether the principles in Pearce v The Queen (1998) 194 CLR 610 allow a conviction of “no separate penalty” – they do not
EVIDENCE – Documentary evidence – no tendered documents marked as exhibits in the Magistrates Court – no tender documents from the Magistrates Court proceedings provided to the Supreme Court – difficulties arising from multiple statements of facts and photos tendered in the Magistrates Court – desirability of marking documentary evidence as exhibits

Crimes Act 1900 (ACT), ss 10, 13-5, 24, 29, 374(2), 375(11)
Crimes (Sentencing) Act 2005 (ACT), s 7
Domestic Violence Protection Orders Act 2008 (ACT), s 90(2)
Magistrates Court Act 1930 (ACT), Pt 3.2, Div 3.2.10, ss 125, 216

Burge v McCarron [2011] ACTSC 87
Cameron v The Queen (2002) 209 CLR 339
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Connelly v Director of Public Prosecutions [1964] AC 1254
Cotter v Corvisy (2008) 1 ACTLR 299
Director of Public Prosecutions (Vic) v Johnson (2011) 213 A Crim R 262
Finnigan v The Queen [2013] NSWCCA 177
GNv The Queen [2012] NSWCCA 96
Goundar v Goddard (2010) 240 FLR 176
Grimshaw v Mann [2013] ACTSC 189
Grooms v Toohey (2012) 7 ACTLR 1
Holliday v The Queen [2013] ACTCA 31
House v The King (1936) 55 CLR 499
Keane v Police (1997) 69 SASR 481
Manny v Burmester [2002] ACTSC 44
Mill v The Queen (1988) 166 CLR 59
Parker v The Queen (Unreported, Tasmanian Court of Criminal Appeal, Green CJ, Underwood and Zeeman JJ, 21 July 1994)
Pearce v The Queen (1998) 194 CLR 610
R v B G (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 1 December 2010)
R v Brown (1992) 73 CCC (3d) 242
R v Cotham [1998] VSCA 111
R v Ennis (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 17 April 2013)
R v Hamid (2006) 164 A Crim R 179
R v Meyboom [2012] ACTCA 48
R v Olbrich (1999) 199 CLR 270
R v Riddle (2010) 4 ACTLR 153
R v Sellars [2010] NSWCCA 133
R v TW (2011) 6 ACTLR 18
R v Williams (1990) 50 A Crim R 213
Re an application for bail by Schwalm [2011] ACTSC 153
Siganto v The Queen (1998) 194 CLR 656
Veen v The Queen (No 2) (1988) 164 CLR 465

ACT Magistrates Court, Practice Direction No 1 of 2009 — Case Management Hearings and Committal Hearings, 15 May 2009
Hickey, J and Stephen Cumines, Apprehended Violence Orders: A Survey of Magistrates (Judicial…

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 Roberts v Smorhun

Details

AGLC: Roberts v Smorhun [2013] ACTSC 218
Case: [2013] ACTSC 218
Decision Date: 1 November 2013

CaseChat Overview and Summary

The appeal in Roberts v Smorhun involved the defendant, Toby David Roberts, who was convicted in the Magistrates Court of multiple offences related to the contravention of a domestic violence order. Roberts was found to have breached the protection order on several occasions, leading to his conviction and sentencing. The appeal was brought before the Supreme Court on the grounds that the original sentence was manifestly excessive.

The legal issues before the court were whether the principles in Pearce v The Queen, which allow for a conviction of "no separate penalty," applied to this case and if not, whether the sentence imposed by the Magistrates Court was excessive to the point of being manifestly unjust. The court was also required to consider the seriousness of the offences and the need for specific and general deterrence in cases of domestic violence.

In delivering the judgment, the court held that the Pearce principles did not apply and that the Magistrates Court had erred in its sentencing. The Supreme Court found that the original sentence was indeed manifestly excessive, given the nature of the offences and the need for appropriate deterrence in cases of domestic violence. The court emphasised the importance of marking documentary evidence as exhibits to avoid confusion and ensure a fair trial. The appeal was thus upheld, and the sentence was revised.

The final orders of the court included the upholding of the appeal, the setting aside of the original sentence for the offence of contravening the protection order on 23 February 2013, and the imposition of a new sentence. Roberts was sentenced to imprisonment for 23 months, with a non-parole period of 13 months.

Orders

Orders of the court

1. The appeal be upheld.

2. The sentence for the offence of, on 23 February 2013, contravening the protection order made on 18 December 2012, be set aside.

3. In lieu, Toby David Roberts be sentenced to imprisonment for 23 months to commence on 15 March 2013 and end on 14 February 2015.

4. A non-parole period of 13 months be set to commence on 15 March 2013 and end on 14 April 2014.

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.

Citations

AGLC Citation

Roberts v Smorhun [2013] ACTSC 218

Most Recent Citation

R v Elphick (No 2) [2015] ACTSC 23

Cases citing this decision · 13 of 14 shown

Director of Public Prosecutions v O'Brien (a pseudonym) (No 7)
[2025] ACTSC 172

…pseudonym) [2022] ACTCA 61 R v ME [2017] ACTSC 402 R v Smith [1964] Crim LR 70 R v Smith (a pseudonym) (No 2) [2020] ACTSC 260 Roberts v Smorhun [2013] ACTSC 218 Saunders v Crowe [2010] ACTSC 78…
Director of Public Prosecutions v Matas
[2024] ACTSC 234

…yn [2016] NSWCCA 1 R v Verdins [2007] VSCA 102; 16 VR 240 R v Wheeler [2000] NSWCCA 34 R v XX [2009] NSWCCA 115; 195 A Crim R 38 Roberts v Smorhun [2013] ACTSC 218 Smith v The Queen [2011] NSWCCA 163 Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 Wyper v The Queen; R v Wyper [2017] ACTCA 59; 19 ACTLR 288 Zdravk…
Mammoliti v Callaghan
[2022] ACTSC 259 Para 1

…Specifically in relation to the offence in question, in Roberts v Smorhun [2013] ACTSC 218, Refshauge J stated at [133]:…
R v Peric
[2022] ACTSC 385 Para 1

…escribed as “a pernicious and evil phenomenon”. See also Goundar v Goddard [2010] ACTSC 56; 240 FLR 176 at 182; [34]–[35] and Roberts v Smorhun [2013] ACTSC 218 at [120]–[127], [133]–[135].…
R v Rogers
[2021] ACTSC 355 Para 1

…ysical and emotional, including coercive control and other means of exerting power over and instilling powerlessness in the victim: Roberts v Smorhun [2013] ACTSC 218 at [2]–[4], R v B G (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 1 December 2010).…
R v KS
[2021] ACTSC 109 Para 2

…23.As to the offences of breaching the Family Violence Order, these are serious offences. In Roberts v Smorhun [2013] ACTSC 218, at [2], I said, after commenting on the beneficial reform to the protection order regime: In Nicholas Seddon, Domestic Violence in Australia: The Legal Response (Federation Press, 2 nd ed…
R v Tonna (No 1)
[2020] ACTSC 360 Para 1

…As to the offences of breaching the Family Violence Order, these are serious offences. In Roberts v Smorhun [2013] ACTSC 218, at [2], I said, after commenting on the beneficial reform to the protection order regime:…
R v Wyper
[2017] ACTSC 50 Para 1

…of the parties to the relationship, it is properly to be characterised as a family violence offence, which renders it more serious: Roberts v Smorhun [2013] ACTSC 218 at [133]-[135].…
R v Stanley
[2015] ACTSC 322 Para 1

…ontext of a domestic relationship is an aggravating factor, although that will not always be so in the context of all offences. See Roberts v Smorhun [2013] ACTSC 218 at [133]-[135]. The victim was vulnerable because of those circumstances.…
Bedford v Earle (No 2)
[2015] ACTSC 309 Para 1

…Manny v Burmester [2002] ACTSC 44 at [25]; Tunks v Onorato [2012] ACTSC 148 at [47]; Grimshaw v Mann [2013] ACTSC 189 at [19]-[23]; Roberts v Smorhun [2013] ACTSC 218 at [57]-[65]. That may well be the reason why they were not included in the Schedule of Documents as provided for in the Supreme Court’s Practice Dir…
Brett Alchin v Deborah Maree McInerney
[2015] ACTSC 300 Para 1

…I have also had particular regard to the facts and outcome of the decision in Roberts v Smorhun [2013] ACTSC 218 where the threat of violence and actual violence inflicted arose out of a face to face confrontation.…
R v Loulanting
[2015] ACTSC 172 Para 120

…d and this needs to be respected. Further, such orders are normally made in the context of family violence and, as I pointed out in Roberts v Smorhun [2013] ACTSC 218 at [120]-[122], this is this is a serious problem which the integrity of the Domestic Violence Order system can help to address.…
R v Elphick (No 2)
[2015] ACTSC 23 Para 1

…d and this needs to be respected. Further, such orders are normally made in the context of family violence and, as I pointed out in Roberts v Smorhun [2013] ACTSC 218 at [120]-[122], this is a serious problem which the integrity of the Domestic Violence Order system can help to address.…

View all 14 citing cases →

Cases cited in this decision · 29 of 29 shown

Grimshaw v Mann
[2013] ACTSC 189 Para 1

…In Grimshaw v Mann [2013] ACTSC 189 at [19]-[23], I considered whether this failure properly to record the material before the sentencing Magistrate meant that it had not been received in evidence and concluded that, despite some older authority that would support such an approach, it was not the law.…
Finnigan v R
[2013] NSWCCA 177 Para 1

…My view has been re-inforced by recent decisions in the New South Wales Court of Criminal Appeal. In Finnigan v The Queen [2013] NSWCCA 177 at [33]-[36], Campbell J, with whom Macfarlan JA and Barr AJ agreed, held that the approach described in Pearce v The Queen was mandatory and sentencers must follow it. That req…
Holliday v The Queen
[2013] ACTCA 31 Para 1

…e discount often applied when a plea of guilty is entered on the first day of the trial or shortly before that. See for example, Holliday v The Queen [2013] ACTCA 31 at [74]; R v Ennis (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 17 April 2013) at [12], [18].…
Shoard v Van Der Zanden
[2013] WASC 163 Para 23

…ueen (2010) 208 A Crim R 298 at 321; [132], Smith v Tasmania [2012] TASCCA 3 at [32], R v Edwards [2012] QCA 117 at [23], Shoard v Van Der Zanden [2013] WASC 163 at [41]. This is the not the place to consider the rationale for such an approach; that will have to wait for another day. It is enough that the reliance…
R v Meyboom
[2012] ACTCA 48 Para 1

…or. It may be that this is really to be properly understood as a particular of the ground that the sentence was manifestly excessive. See R v Meyboom [2012] ACTCA 48 at [52]-[55].…
GN v R
[2012] NSWCCA 96 Para 1

…edominantly compliant towards supervision and directions from” ACT Corrective Services. See R v Sellars [2010] NSWCCA 133 at [22]; GN v The Queen [2012] NSWCCA 96 at [14]. He may benefit from further attendance at that agency’s Family Violence Cognitive Self-Change Program and certainly the Sentence Administration…
R v Edwards
[2012] QCA 117 Para 32

…reestone [2009] QCA 290 at [30], Ludeman v The Queen (2010) 208 A Crim R 298 at 321; [132], Smith v Tasmania [2012] TASCCA 3 at [32], R v Edwards [2012] QCA 117 at [23], Shoard v Van Der Zanden [2013] WASC 163 at [41]. This is the not the place to consider the rationale for such an approach; that will have to wai…
Smith v Tasmania
[2012] TASCCA 3 Para 32

…more serious. See, for example, R v Freestone [2009] QCA 290 at [30], Ludeman v The Queen (2010) 208 A Crim R 298 at 321; [132], Smith v Tasmania [2012] TASCCA 3 at [32], R v Edwards [2012] QCA 117 at [23], Shoard v Van Der Zanden [2013] WASC 163 at [41]. This is the not the place to consider the rationale for suc…
Grooms v Toohey
[2012] ACTSC 28 Para 1

…I have referred to this problem before in Grooms v Toohey (2012) 7 ACTLR 1 at 6; [24].…
In the Matter of An Application for Bail By Jeremy Schwalm
[2011] ACTSC 153 Para 1

…e approach taken by the courts to domestic violence generally. See, for example, R v Hamid at 191-6; [65]-[86]; Re an application for bail by Schwalm [2011] ACTSC 153 at [39]; Goundar v Goddard (2010) 240 FLR 176 at 181-3; [32]-[36].…
Mark Burge v Theresia McCarron, Luke Vincent and Christopher James Tanner
[2011] ACTSC 87 Para 1

…the assault offence. I have held that to impose “no separate penalty” for an offence is inconsistent with Pearce v The Queen : Burge v McCarron [2011] ACTSC 87 at [25]-[39].…
Cooper v Corvisy (No 2)
[2010] ACTSC 166 Para 1

…I have described, in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles surrounding such appeals; I apply them in this case.…
Ludeman v The Queen
[2010] VSCA 333 Para 30

…egularly referred to the fact that violent offences committed in public are more serious. See, for example, R v Freestone [2009] QCA 290 at [30], Ludeman v The Queen (2010) 208 A Crim R 298 at 321; [132], Smith v Tasmania [2012] TASCCA 3 at [32], R v Edwards [2012] QCA 117 at [23], Shoard v Van Der Zanden [2013] WASC 163 at…
Goundar v Goddard
[2010] ACTSC 56 Para 1

…iolence generally. See, for example, R v Hamid at 191-6; [65]-[86]; Re an application for bail by Schwalm [2011] ACTSC 153 at [39]; Goundar v Goddard (2010) 240 FLR 176 at 181-3; [32]-[36].…
R v Sellars
[2010] NSWCCA 133 Para 1

…particularly as he was reported to be “predominantly compliant towards supervision and directions from” ACT Corrective Services. See R v Sellars [2010] NSWCCA 133 at [22]; GN v The Queen [2012] NSWCCA 96 at [14]. He may benefit from further attendance at that agency’s Family Violence Cognitive Self-Change Program a…
R v Riddle
[2010] ACTCA 8 Para 1

…Queen (2002) 209 CLR 339 at 343; [11]. The cost of a trial is saved even if the plea is entered on the first day of the trial, as Penfold J noted in R v Riddle (2010) 4 ACTLR 153 at 159-60; [35].…
R v Freestone
[2009] QCA 290 Para 30

…Courts of Appeal have regularly referred to the fact that violent offences committed in public are more serious. See, for example, R v Freestone [2009] QCA 290 at [30], Ludeman v The Queen (2010) 208 A Crim R 298 at 321; [132], Smith v Tasmania [2012] TASCCA 3 at [32], R v Edwards [2012] QCA 117 at [23], Shoard…
Cotter v Corvisy
[2008] ACTSC 64 Para 1

…seen as manifestly excessive. He acknowledged that there was an element of contumacy in the offending of Mr Roberts, referring to what I had said in Cotter v Corvisy (2008) 1 ACTLR 299 at 308; [37]-[39], which made the offence serious, as it also had the offences dealt with by Higgins CJ. Nevertheless, he submitted that…
Jeff Manny v Harald Burmester
[2002] ACTSC 44 Para 1

…A similar problem was referred to by Miles CJ in Manny v Burmester [2002] ACTSC 44 at [25], where his Honour said:…
Cameron v the Queen
[2002] HCA 6 Para 1

…istance to the administration of justice and save the cost of a trial. See Siganto v The Queen (1998) 194 CLR 656 at 663-4; [22]; Cameron v The Queen (2002) 209 CLR 339 at 343; [11]. The cost of a trial is saved even if the plea is entered on the first day of the trial, as Penfold J noted in R v Riddle (2010) 4 ACTLR…
R v Olbrich
[1999] HCA 54 Para 1

…ngerous and that this was an aggravating factor. Aggravating factors in sentencing must be proved beyond reasonable doubt as set out in R v Olbrich (1999) 199 CLR 270 at 281; [27] and 293; [57]. In my view, there was nothing in any of the material before his Honour that could have justified that inference being drawn…
Siganto v the Queen
[1998] HCA 74 Para 1

…discount is to encourage accused persons to provide assistance to the administration of justice and save the cost of a trial. See Siganto v The Queen (1998) 194 CLR 656 at 663-4; [22]; Cameron v The Queen (2002) 209 CLR 339 at 343; [11]. The cost of a trial is saved even if the plea is entered on the first day of the…
Pearce v The Queen
[1998] HCA 57 Para 1

…Clearly, what the prosecution had in mind was what was said by McHugh, Hayne and Callinan JJ in Pearce v The Queen (1998) 194 CLR 610 at 623; [40]…
Mill v The Queen
[1988] HCA 70 Para 1

…This is somewhat different from the principle of totality to which the prosecutor referred (see Mill v The Queen (1988) 166 CLR 59), for their Honours in Pearce v The Queen went on to say at 624; [45]:…
Veen v The Queen (No 2)
[1988] HCA 14 Para 1

…ver, that the Court is very careful not to sentence Mr Roberts again for the offences for which he has already been punished: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.…
House v R
[1936] HCA 40 Para 1

…of any sentencing discount is a matter of discretion and such discretion will not be disturbed other than on the grounds set out in House v The King (1936) 55 CLR 499 at 504-5. A breach of those grounds was not alleged.…
R v Cotham
[1998] VSCA 111 Para 1

…Nevertheless, as Charles JA, with whom Brooking and Phillips JJA concurred, said in R v Cotham [1998] VSCA 111 at [14], in relation to domestic violence orders, in Victoria called “intervention orders”:…
[1964] AC 1254
[1964] AC 1254 Para 1

…sault occasioning actual bodily harm was contained in the offence of contravening the protection order. In Connelly v Director of Public Prosecutions [1964] AC 1254 at 1305-6, Lord Morris of Borth-y-Gest set out the governing principles in relation to the plea of autrefois acquit . Among them were:…
House v The King
63 WN 176 Para 1

…The quantum of any sentencing discount is a matter of discretion and such discretion will not be disturbed other than on the grounds set out in House v The King (1936) 55 CLR 499 at 504-5. A breach of those grounds was not alleged.…

Legislation cited in this decision · 4

Crimes Act 1900 (ACT)
10, 13 3 mentions (from Para 1)
Crimes (Sentencing) Act 2005 (ACT)
7 2 mentions (from Para 1)
Domestic Violence and Protection Orders Act 2008 (ACT)
90(2) 2 mentions (from Para 1)
Magistrates Court Act 1930 (ACT)
1 mention (from Para 1)