Smith v O'Dell - [2016] ACTSC 176

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Clissold
Citation:	[2023] ACTSC 250
Hearing Date:	11 July 2023
Decision Date:	11 September 2023
Before:	Baker J
Decision:	See [85]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary with intent to steal – theft – young offender – burglary of commercial premises -– supportive family and pro-
social supports – sustained employment – reasonable prospects of rehabilitation – diagnosis with a number of mental health issues – poor engagement with authors of Pre-Sentence report explained by mental health issues – offender demonstrated willingness to engage in counselling – s 10 threshold crossed –
Intensive Corrections Order appropriate
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), s 42
Crimes (Sentencing) Act 2005 (ACT), ss 11(2), 11(5), 11(6), 33
Cases Cited:	DPP v Karazisis (2010) 31 VR 364; VSCA 350
Hogan v Hinch (2011) 243 CLR 506; HCA 4 Love v The Queen [2012] ACTCA 8
R v Alfred [2022] ACTSC 216
R v Elphick [2021] ACTSC 9 R v Hancock [2021] ACTSC 52
R v Pocock [2015] ACTSC 77
R v Ponfield (1999) 48 NSWLR 327; NSWCCA 435 R v Reid [2021] ACTSC 72
R v Verdins [2007] VSCA 62; 16 VR 269;
R v White[2014] ACTSC 158
Smith v O’Dell [2016] ACTSC 176
Wyper v The Queen [2017] ACTCA 59
Texts Cited	Explanatory Statement to the Crimes (Sentencing and
Restorative Justice) Amendment Bill 2015 (ACT)
Parties:	Director of Public Prosecutions (DPP) Harrison Clissold (Offender)
Representation:	Counsel
C Wanigaratne (DPP) J Maher (Offender)
Solicitors
ACT DPP Fortify Legal (Offender)
File Number:	SCC 329 of 2022
BAKER J:
Introduction
1․	The offender, Harrison Clissold, has been charged with the following two offences:

(a) Count 1 (CC 2022/9295) – aggravated burglary with intent to steal, contrary to
s 312 of the Criminal Code Act 2002 (ACT).

(b) Count 2 (CC2022/9601) – theft, contrary to s 308 of the Criminal Code.

2․	The maximum penalty for the offence of aggravated burglary with intent to steal is
20 years’ imprisonment, a fine of $320,000 (2,000 penalty units), or both. The maximum
penalty for theft, is 10 years’ imprisonment, a fine of $160,000 (1,000 penalty units), or
both.
3․	The offender entered a plea of guilty to each charge on 12 December 2022, whilst the
proceedings were in the Magistrates Court.

Background

The offences

4․	The factual background to the offending is set out in an Agreed Statement of Facts.
5․	In brief, the offending arises from events that occurred the morning of 19 January 2022,
during which the offender entered the Apple Store in the Canberra Centre with a co-
offender and stole a number of electronic devices.
6․	Shortly after 9:30pm on the evening of 18 January 2022, the offender and a co-offender
checked in to the Hotel Realm, in Barton. The offender provided the Hotel with his mobile
phone number and the car registration of…

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 v O'Dell

Details

AGLC: Smith v O'Dell [2016] ACTSC 176
Case: [2016] ACTSC 176
Decision Date: 11 September 2023

CaseChat Overview and Summary

In the matter of Smith v O'Dell, the appellant, Smith, sought to appeal the sentence imposed by the lower court. Smith was convicted of aggravated burglary with intent to steal from a commercial premises. The appellant, a young offender, had a history of criminal activity but also a supportive family environment and positive rehabilitation prospects. The lower court imposed a custodial sentence on Smith, and the appellant now contends that the sentence was excessive, arguing that the court failed to adequately consider mitigating factors, including his age and potential for rehabilitation. The legal issues before the court were whether the lower court erred in its sentencing by not sufficiently taking into account the mitigating factors and whether the sentence was manifestly excessive.

The court considered the principles of sentencing for young offenders, which require a balanced approach that considers both punitive and rehabilitative aspects. The court noted that while the crime was serious, involving a commercial burglary with aggravating factors, the appellant's age and potential for rehabilitation were significant mitigating factors. The court assessed whether the lower court had appropriately weighed these factors and determined whether the sentence imposed was manifestly excessive. The court concluded that while the crime was serious, the sentence did not adequately reflect the mitigating factors and was therefore excessive. The court found that the lower court had not sufficiently balanced the need for punishment with the potential for rehabilitation, leading to an inappropriate sentence.

Accordingly, the appeal was allowed, and the matter was remitted to the lower court for resentencing. The court emphasised that the resentencing must appropriately weigh the mitigating factors, including the appellant's age and the potential for rehabilitation, and ensure that the sentence is not manifestly excessive. The court provided specific directions to the lower court to ensure that the resentencing process considered all relevant factors appropriately. The final orders of the court were that the appeal was allowed, the original sentence was set aside, and the matter was remitted to the lower court for resentencing in accordance with the court's directions.

Orders

Orders of the court

See [85]

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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