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 drinking at the time of the offences, but he could not say how much he had had to drink.

6 One of his companions, Christopher Apps, described the affectation of the applicant in strong terms, but in his evidence before his Honour the applicant disagreed with everything Mr Apps said about that. His Honour found that when he committed the offences the applicant was affected by alcohol.

7 By the time he came before his Honour, however, the applicant was beginning to turn himself around. He said that in the last couple of years he had started weaning himself off alcohol and that at that time he was having perhaps one or two drinks a week. He said he had no real problem with illegal drugs.

8 His Honour imposed sentence on the same day.

9 No complaint is made about the head sentences. The only ground of appeal asserts that his Honour erred in failing to fix a non-parole period somewhat less than three quarters of the seven year head sentence on the first count. It was submitted the applicant was intoxicated when he committed the offences, that his history showed a continuing problem with alcohol intimately associated with his background, that his criminal history was related to his history of alcohol abuse, and that there was evidence that after the commission of the offences the applicant had become to overcome his addiction to alcohol.

10 S 44 Crimes (Sentencing Procedure) Act requires a court which sentences a person to a term of imprisonment first to set the term of the sentence and, secondly, to set a non-parole period. Subs (2) says that the non-parole period must not be less than three-quarters of the term of the sentence, unless the court decides there are special circumstances for its being less. In that case the court must give its reasons for so deciding.

11 There is no requirement for a Judge who fixes a non-parole period which is not less than three-quarters of the term of the head sentence to state the reasons.

12 If a sentencing Judge fixes a non-parole period which is exactly three-quarters of the term of the sentence and makes no mention of any consideration whether there exist the circumstances necessary to justify the fixing of a shorter non-parole period, the court may infer that the Judge has overlooked the matter. But there is no such inference available here. His Honour took the view that a period on parole of one year three months was sufficient to meet the needs of the applicant and the community after his release into the community. It is for the applicant to demonstrate that such a period was outside the range of his Honour's sentencing discretion.

13 Such was the haste with which the applicant requested the sentencing proceedings to continue that very little evidence could be put before his Honour about the probable need of the applicant when the time came for him to be released on parole. All his Honour was told was that the applicant had had a difficult childhood, had become alcoholic at an early age, and had continued to abuse alcohol well into his mature years. He had committed regularly the kinds of offences ordinarily associated with the excessive consumption of alcohol. However, the applicant told his Honour things had changed during the last two years and that by the time he came before his Honour he was taking only one or two drinks a week. This was encouraging evidence showing that prospects were good that the applicant would probably bring his desire for alcohol under control during the custodial portion of his sentence. That was a substantial period, so there was plenty of time for the applicant, with the assistance and supervision of the relevant personnel in the Corrective Services system, to come to grips with the problem.

14 In the circumstances, it is difficult to see why his Honour's estimate of the time on parole the applicant was likely to need was wrong. It has not been shown, to my mind, that his Honour was obliged to fix any shorter non-parole period than he did.

15 I would grant leave to appeal but would dismiss the appeal.

16 ADAMS J: I agree with what has fallen from the learned presiding Judge and with the orders he proposes.

17 BARR J: The orders of the court therefore are as I have proposed.

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