R v Smith [2016] ACTSC 317

Crimes Act 1900 (ACT) s 34

SCC 53 of 2016; SCC 55 of 2016

1. Bevan Smith, you have pleaded guilty to one count of aid/abet unlawful confinement contrary to s 34 of the Crimes Act 1900 (ACT) and s 45 of the Criminal Code 2002 (ACT); and two counts of unlawful confinement contrary to s 34 of the Crimes Act 1900 (ACT). Each of those charges is punishable by 10 years imprisonment.

2. The pleas were on the morning of the listed trial date. The complainants were present at court and ready to give evidence at the time that the pleas were entered. The pleas cannot be said to be early pleas but I am prepared to accept that they demonstrate a degree of remorse and the Crown has also accepted that there was significant utility in the pleas even though they came very late in the day.

3. It was only on the basis of your pleas of guilty to the charges of unlawful confinement and your expressed willingness to give evidence against your co-offender that caused your co-offender to change his pleas and also to enter pleas of guilty to charges arising out of this incident. Albeit that the pleas were very late in the day, I will nevertheless allow a reduction in the otherwise appropriate sentences of 20 per cent, in the light of the very significant utilitarian value of those pleas.

4. I note that you have also offered to give evidence against your co-offender. That of course is a matter which is now of some significance on the basis that your co-offender has indicated a desire to withdraw his plea of guilty with respect to one count and that is the count alleging possession of a prohibited firearm so that you may yet be called upon to give evidence in accordance with the undertaking that has been given through your counsel. Your willingness to give evidence on behalf of your co-offender also in my view demonstrates your remorse for this offending.

5. I accept that if you are to be placed in full-time custody that the likelihood that your willingness to give evidence on behalf of your co-offender would place you at some risk of assault or other interference in prison.

6. I accept the submission that has been made by the Crown that the offence of unlawful confinement with respect to the complainant, Mr Hantas, which is Count 3 is objectively more serious. I note the contents of the Statement of Facts which has been put before me and I will not repeat the facts at this time.

7. The length of confinement with respect to each of the complainants was not particularly long. The Crown has estimated it at 20 minutes. The objective seriousness of each of the offences must be considered in the light of the means used to achieve that confinement, being the threats of violence directed towards each of the complainants, but particularly towards Mr Hantas which was reinforced by use of a firearm. The Crown does not allege that you were involved in the use of the firearm. It has been put to me by Mr Sabharwal on your behalf, and the Crown has not demurred from that position, that you were not aware of the fact that your co-offender was in possession of the firearm until such time as he produced it at the scene. The Crown's position is that the objective seriousness of the offences with respect to your co-offender is much greater than in your particular case.

8. As the Crown submitted, I must also take into account the conditions of detention of the victims. In that regard, again there were threats of death to Mr Hantas and the brandishing of a firearm but the Crown again accepts that those were acts which were performed by your co-offender. I also take into account the reasons for the confinement of the victims. I have no doubt that the reasons were basically to enable your cooffender to protect his cannabis business and to at least frighten a rival away from conducting a competing business.

9. I take into account the contents of the Pre-Sentence Report. I am satisfied that you have significant family support and that you have very good prospects for rehabilitation. Indeed it is clear that you have already commenced down the path of rehabilitation. I was impressed by the evidence which was given by your mother about her observations of the change in your demeanour and attitude since you ceased using cannabis and also the steps that you are taking at the present time to find additional employment to that of working in the family business.

10. Your counsel has submitted that suspended sentences of imprisonment would be appropriate with respect to these matters. The Crown has not disputed the submission that suspended sentences may be appropriate but has submitted that in order to mark the objective seriousness of these offences, and in particular the offence relating to Mr Hantas, that a community service order should also be imposed. I accept that submission.

11. With respect to Count 4, that is the count of aid/abet forcible confinement of Mr Hantas (CC15/11158), you will be convicted and you will be sentenced to one year and nine months imprisonment commencing today, 17 October 2016 and expiring on 16 July 2018. My starting point with respect to that sentence was three years imprisonment. I reduced it to two years and five months imprisonment in order to reflect your plea of guilty and I then reduced it further to one year and nine months in order to mark your willingness to give evidence on behalf of your co-offender.

12. With respect to Count 5, the charge of unlawful confinement of Ms Murray (CC15/11155), you will be convicted and sentenced to 14 months imprisonment commencing on 17 August 2017 an expiring on 16 October 2018. My starting point with respect to that sentence was 2 years imprisonment which I reduced to 19 months for your plea of guilty and then further reduced to 14 months for your offer of assistance to the authorities.

13. With respect to Count 6, the charge of unlawful confinement of Ms Hunter (CC15/11157), you will be convicted and sentenced to 14 months imprisonment commencing on 17 November 2017 and expiring on 16 January 2019. My starting point and reductions are similar with respect to Count 6 as they are for Count 5.

14. The aggregate sentence which I have imposed is therefore one of two years and three months imprisonment commencing on 17 October 2016 and expiring on 16 January 2019. Those sentences will be wholly suspended.

15. There will be a Good Behaviour Order with respect to Count 4 for a period of three years from today, 17 October 2016 with the following conditions:

(a) you are to accept the supervision of ACT Corrective Services for that period of three years or such lesser period as deemed appropriate by your supervising officer and you are to obey all reasonable directions of officers of ACT Corrective Services;

(b) you are to report to ACT Corrective Services within 48 hours; and

(c) you are to complete 300 hours of community service within a period of 2 years from today, 17 October 2016 as directed by an officer of ACT Corrective Services.

16. With respect to Counts 5 and 6, I have suspended those sentences. In each case, there will be a Good Behaviour Order for a period of two years and six months from today, 17 October 2017 with no conditions other than the core conditions.

17. Now, you must appreciate how close you have come at the present time to a sentence of imprisonment. I have suspended the sentences which I have imposed largely on the basis of your good prospects for rehabilitation but also because of the fact that you have demonstrated a willingness to assist in the prosecution of your co-offender if you are called upon to do so. If, for example, you were ultimately to refuse to give evidence in any trial relating to your co-offender, you may be brought back before this Court to be re-sentenced with respect to these matters and that may include some period of

18. In addition to which, of course, if you commit some further offence during the period of these Good Behaviour Orders, you may be brought back to this Court and be

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.