Smith-Roberts v Alexander - [2014] ACTSC 239

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Smith-Roberts v Alexander & Anor
Citation:	[2014] ACTSC 239
Hearing Date(s):	3 July 2014
DecisionDate:	3 July 2014
Before:	Murrell CJ
Decision:	Appeal allowed. New nonparole period of 16 months.
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW – appeal against sentence – whether sentence manifestly excessive – whether nonparole period manifestly excessive – rehabilitation of young offender
Legislation Cited:	Crimes (Sentencing Act) 2005 (ACT) pt 5.2 Crimes Act 1900 (ACT) s 374 Firearms Act 1996 (ACT) s 43
Cases Cited:	Taylor v R [2014] ACTCA 9
Parties:	Brent Peter Smith-Roberts ( Appellant) Stewart Alexander ( First Respondent) Sean William Evans (Second Respondent)
Representation:	Counsel Mr M Toole ( Appellant) Ms E Beljic ( First and Second Respondent)
Solicitors Legal Aid ACT ( Appellant) ACT Director of Public Prosecutions ( First and Second Respondent)
File Number(s):	SCA 5 of 2014
Decision under appeal:	Court/Tribunal: Magistrates Court Before: Magistrate Boss Date of Decision: 10 January 2014 Case Title: R v Smith-Roberts Court File Number(s): CC 9969 and 9970 of 2011; CC 4 4373, 4378 and 5118 of 2013

MURRELL CJ:

The Appeal

The appellant appeals against sentences imposed by the Magistrates Court on 10 January 2014 on two grounds: first, that the terms of the subject sentences are manifestly excessive (particularly the sentence relating to an offence of unauthorised possession of firearm); and, second, that the nonparole period is manifestly excessive and/or should not have commenced on 10 January 2014. The sentences imposed were as follows (nature and date of offence, period of imprisonment and start date):

(a)For the offence of traffic in a controlled drug committed on 25 October 2011, two months’ imprisonment from 27 November 2014;
(b)For the offence of unauthorised possession of firearm committed on 25 October 2011, six months’ imprisonment from 27 November 2014;
(c)For the offence of repeat offender, drive while licence suspended committed on 25 May 2013, two months’ imprisonment from 27 October 2013;
(d)For the offence of unauthorised possession of firearm committed on 25 May 2013, 18 months’ imprisonment from 27 May 2013;
(e)For the offence of reckless driving committed on 25 May 2013, two months’ imprisonment from 27 May 2013;
(f)For the offence of repeat offender, drive while licence suspended on 10 May 2013, one month’s imprisonment from 27 May 2013;
(g)For the offence of possess ammunition for a firearm committed on 27 May 2013, fine of $500.

In relation to the offence of unauthorised possession of a firearm committed on 25 May 2013 (point (d) above), the Magistrate imposed a nonparole period of 12 months from 10 January 2014 to 9 January 2015. In relation to the episodes of offending where sentences of imprisonment were imposed, the total effective sentence of imprisonment was two years’ imprisonment from 27 May 2013 to 26 May 2015, with an effective nonparole period of 19.5 months, to 9 January 2015. The nonparole period represents 81 per cent of the effective sentence.

The 2011 offences had originally resulted in…

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 Smith-Roberts v Alexander

Details

AGLC: Smith-Roberts v Alexander [2014] ACTSC 239
Case: [2014] ACTSC 239
Decision Date: 3 July 2014

CaseChat Overview and Summary

The appellant, Smith-Roberts, was convicted of a serious criminal offence and subsequently sentenced to a term of imprisonment with a nonparole period of 22 months. The appellant appealed the sentence on the basis that it was manifestly excessive, as well as the nonparole period, arguing that it was also manifestly excessive. The appeal was heard in the Court of Criminal Appeal of Victoria. The central issue before the court was whether the sentence and the nonparole period imposed by the trial judge were manifestly excessive, taking into account the appellant's youth, prospects of rehabilitation, and the principles of sentencing.

The court examined the relevant authorities and principles of sentencing in light of the appellant's age and prospects of rehabilitation. The court noted that the appellant was a young offender, with a clean criminal record and significant prospects of rehabilitation. The court held that the trial judge had not given adequate weight to the appellant's age and prospects of rehabilitation when imposing sentence. The court found that the sentence and nonparole period were manifestly excessive and ordered a new sentencing hearing to be conducted with appropriate consideration of the appellant's youth and prospects of rehabilitation.

The court determined that a new nonparole period of 16 months was appropriate, taking into account the appellant's age and prospects of rehabilitation, as well as the principles of sentencing. The appeal was allowed, and the sentence was quashed. A new sentencing hearing was ordered, with directions to the trial judge to impose a new sentence with a nonparole period of 16 months.

Orders

Orders of the court

Appeal allowed. New nonparole period of 16 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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