Smith v The Queen - [2023] ACTCA 26

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Smith v The Queen
Citation:	[2023] ACTCA 26
Hearing Date:	15 May 2023
DecisionDate:	9 June 2023
Before:	Mossop, McWilliam and Bromwich JJ
Decision:	The appeal is dismissed.
Catchwords:	APPEAL – Appeal against sentence for riding in vehicle without consent, aggravated burglary, attempt to intentionally inflict grievous bodily harm, and two counts of theft – where pleas of guilty entered after jury trial commenced and evidence from victims adduced, just prior to co-offender evidence being adduced – where the appellant contends that one of the guilty pleas should be permitted to be withdrawn – where the appellant was sentenced to six years and seven months, with a non-parole period of four years – whether there was a miscarriage of justice relating to charge of attempt to intentionally inflict grievous bodily harm – whether the overall sentence was manifestly excessive – whether the sentencing judge took into account parity with the sentence imposed upon the appellant’s co-offender for common offences
Legislation Cited:	Supreme Court Act 1933 (ACT), s 37O(2)(a)(iii)
Cases Cited:	Lowe v The Queen (1984) 154 CLR 606
Parties:	Robert James Smith (Appellant) The Queen (Respondent)
Representation:	Counsel Self-represented (Appellant) K McCann (Respondent)
Solicitors Self-represented (Appellant) Director of Public Prosecutions (Respondent)
File Number:	ACTCA 40 of 2022
Decision under appeal:	Court/Tribunal: Supreme Court of the ACT Before: Norrish AJ Date of Decision: 6 July 2022 Case Title: R v Smith Citation: [2022] ACTSC 162 Court File Number: SCC 83 of 2021

THE COURT:

Introduction

The appellant, Mr Robert James Smith, pleaded guilty to five out of six counts in an indictment. As those guilty pleas included count 3, count 4, which was an alternative to count 3, fell away. The guilty pleas took place after the commencement of the trial by judge and jury, and the giving of evidence by several witnesses. The trial judge convicted Mr Smith and sentenced him to terms of imprisonment for each of the five offences.

Mr Smith appeals against the last count upon the basis of it constituting a miscarriage of justice for the purposes of s 37O(2)(a)(iii) of the Supreme Court Act 1933 (ACT) such that he should be given leave to withdraw his guilty plea. He also appeals against the overall sentence imposed upon the basis of manifest excess in relation to each of the five constituent sentences and misapplication of the parity principle in relation to the offences committed by both him and his co-offender, Mr Kye Jayden Rowe. Mr Smith seeks to be resentenced by this Court.

A number of documents attesting to Mr Smith’s circumstances and conduct in prison were admitted into evidence, without objection, upon the usual basis that they would only become relevant and be taken into account in the event that the appeal succeeded such that there was a resentencing exercise to be carried out by this Court. As it transpired, that has not arisen. However, those documents, and the apparently genuine expressions…

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 The Queen

Details

AGLC: Smith v The Queen [2023] ACTCA 26
Case: [2023] ACTCA 26
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory heard an appeal by Robert James Smith against his sentence for multiple offences, including riding in a vehicle without consent, aggravated burglary, attempt to intentionally inflict grievous bodily harm, and two counts of theft. Smith had pleaded guilty to these charges after the commencement of his jury trial and following the adduction of evidence from victims. He sought to withdraw one of his guilty pleas and argued that his overall sentence was manifestly excessive and that the sentencing judge had misapplied the parity principle concerning the sentence imposed on his co-offender.

The legal issues before the Court were whether there had been a miscarriage of justice concerning the charge of attempt to intentionally inflict grievous bodily harm, which would permit the withdrawal of the guilty plea; whether the overall sentence imposed was manifestly excessive; and whether the sentencing judge had adequately considered the parity principle in relation to the sentence imposed on Smith's co-offender for common offences. The Court was required to determine if Smith's grounds of appeal were valid and if any adjustments to his sentence were warranted.

The Court dismissed the appeal, finding no miscarriage of justice regarding the guilty plea to the theft of an iPhone, which Smith contended he had not committed. The Court clarified that the offence was charged as a joint commission, making Smith legally responsible even though his co-offender physically took the item. Regarding the overall sentence, the Court found it was not manifestly excessive, noting that the primary judge had properly considered the seriousness of the offences, the need for deterrence, the time spent in custody on bail, and Smith's background and mental health vulnerabilities. The Court also found no error in the application of the parity principle, highlighting significant differences between Smith and his co-offender, including their ages, criminal records, the timing and nature of their guilty pleas, and the level of cooperation provided by the co-offender. These factors justified the differences in their sentences for the common offences.

Orders