R.V. Edwin Smith - [2001] NSWCCA 475

CITATION: R.V. EDWIN SMITH [2001] NSWCCA 475

FILE NUMBER(S): CCA 60826/00

HEARING DATE(S): 21 November 20001

JUDGMENT DATE:
21 November 2001

PARTIES :

Edwin John SMITH - Appellant
Regina - Respondent

JUDGMENT OF: Barr J at 1; Adams J at 16

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/61/0204

LOWER COURT JUDICIAL
OFFICER : Gibson DCJ

COUNSEL : Mr S.J. Odgers for the appellant
Mr G.E. Smith for the Crown

SOLICITORS: D.J. Humphreys for the appellant
S.E. O'Connor for the Crown

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s44

DECISION: See Judgment at Paragragh 15

60826/00

Barr J
Adams J

21 November 2001

Regina v Edwin John Smith

Judgment

1 Barr J: Edwin John Smith applies for leave to appeal against sentences imposed upon him in the District Court. He pleaded not guilty to one count of having sexual intercourse without consent in circumstances of aggravation, namely that he inflicted actual bodily harm upon the complainant, and to one count of having sexual intercourse without consent. In due course the jury found him guilty of both counts. The aggravated count attracted a maximum of twenty years’ imprisonment, the second count fourteen years’ imprisonment.

2 On the first count Gibson DCJ QC sentenced the applicant to imprisonment for a period of seven years and fixed a non-parole period of five years and nine months. On the second count his Honour imposed a concurrent term of four years.

3 The facts are as follows. The applicant, then twenty-seven years old, was with two male friends. He invited a young woman he knew to walk with them. She was a person of limited intellect and she agreed to go with the applicant. When they were in a private place he told her she would have to have sex with him. She told him she did not want to do so. He took hold of her hair, pulled her clothes down, punched her in the face and forced her to have vaginal and anal intercourse.

4 At the conclusion of the trial counsel for the applicant advised him to seek an adjournment so that a pre-sentence report could be obtained and so that witnesses could be interviewed, with a view to calling them to give evidence. The applicant insisted on being sentenced that day. Accordingly, his counsel called him to give evidence.

5 The applicant told his Honour he was then twenty-nine years old. He had a wife and three young children. He was not well educated and could not read or write well. He had done various unskilled labouring jobs but had been out of work more often than in work. His father had given him alcohol at an early age and he had become alcoholic by the time he left school at fourteen years and nine months of age. He had tried on many occasions to cure himself of his alcohol addiction. He had attended drug and alcohol meetings. He had attended a three-month residential course. He had been…

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 R.V. Edwin Smith

Details

AGLC: R.V. Edwin Smith [2001] NSWCCA 475
Case: [2001] NSWCCA 475
Decision Date: 21 November 2001

CaseChat Overview and Summary

Edwin John Smith sought leave to appeal against sentences imposed by the District Court for convictions of sexual intercourse without consent, one count of which was aggravated by actual bodily harm. The District Court Judge sentenced Smith to seven years imprisonment for the aggravated count and four years for the second count, with a non-parole period of five years and nine months for the former. Smith argued that the District Court Judge erred in setting a non-parole period that was not less than three quarters of the head sentence on the first count, contending that he was intoxicated at the time of the offences, had a history of alcohol abuse, and was in the process of overcoming his addiction at the time of sentencing.

The Court considered whether the District Court Judge overlooked the requirement to set a non-parole period less than three quarters of the term of the head sentence where special circumstances existed. The Court noted that there was no requirement for the sentencing Judge to state reasons if the non-parole period was not less than three quarters of the term of the sentence. The Court held that it was for Smith to demonstrate that the non-parole period set by the sentencing Judge was outside the range of his discretion.

The Court concluded that it was difficult to see why the District Court Judge's estimate of the time on parole Smith was likely to need was wrong. The Court found that Smith had not shown that the District Court Judge was obliged to fix a shorter non-parole period than he did. The Court granted leave to appeal but dismissed the appeal.

Orders