District Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Phillip William Smith [2011] NSWDC 38 Hearing dates: 11 April 2011 Decision date: 14 April 2011 Before: Judge Walmsley SC Decision: Sentenced to a term of imprisonment of 15 months, to be suspended for the term of the sentence upon the offender's entering into a good behaviour bond under s 12 Crimes (Sentencing Procedure) Act 1999
Catchwords: CRIMINAL LAW - sentence - attempt to pervert the course of justice - police officer providing breath sample for corrective services officer with mid range breathalyser reading - lengthy and unexplained delay in prosecuting offender - sentence of fifteen months, suspended by reason of delay. Legislation Cited: Crimes Act 1900 ss 319
Crimes (Sentencing Procedure) Act 1999Cases Cited: Marinellis v The Queen [2006] NSWCCA 307
Taylor v The Queen [2007] NSWCCA 99
R v Blanco (1999) 106 A Crim R 303
R v Christie (Unreported, District Court of New South Wales, Conlon J, 6 August 2010)
R v Nguyen (2004) 149 A Crim R 343
R v Nomchong (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Hunt CJ, McInerney, Sully JJ, 10 April 1997)
R v Way (2004) 60 NSWLR 168Category: Sentence Parties: Regina
Phillip William SmithRepresentation: Mr D Carroll (Defence)
Mr R Stainer (Crown)
Mr B Moylan (Defence)
File Number(s): 2010/114429
Judgment
The offender was born on 1 November 1964 and he is now aged forty-six. On 11 April 2011 he appeared before me and adhered to a plea in the Local Court, to one count of attempt to pervert the course of justice contrary to s 319 of the Crimes Act . The maximum penalty for that offence is fourteen years imprisonment.
The Crown tendered a set of agreed facts. The document is very lengthy and covers offences committed by a number of police officers and officers employed by the Department of Corrective Services. The facts as they concern this offender, as I have deduced and summarised from that document and from elsewhere in the evidence, are as follows.
The offender grew up in Tamworth and left school after year ten. He qualified as a bricklayer and a carpenter. He joined the Police Service in 1987 when he was aged twenty-three. In September 2007 he was stationed at the Moree Police Station as a general duties officer. He had achieved the substantive rank of Senior Constable, but was acting as Sergeant. He had been at the Moree station since 1998. On the evening of 24 September 2007, two junior officers from the Moree Police Station were conducting roadside breath testing in Moree. They were Constable Dunn and Constable Boaden. Constable Boaden saw a car apparently trying to evade the roadside testing and so he followed it and stopped it. It turned out that the car was being driven by an employee of the Department of Corrective Services, one David John Webb. An Alcometer test recorded .095. Mr Webb was arrested and taken to…
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- AGLC
- R v Phillip William Smith [2011] NSWDC 38
- Case
- [2011] NSWDC 38
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the appropriate sentence for an attempt to pervert the course of justice and the impact of the significant delay in prosecuting the offence on the sentencing decision. The court had to balance the seriousness of the offence against the delay in bringing it to trial, as well as the mitigating factors that may have influenced Smith's actions.
In determining the sentence, the court recognised the gravity of the offence, acknowledging that an attempt to pervert the course of justice is a serious matter that undermines the integrity of the legal system. However, the court also considered the substantial delay in prosecuting the offence, which the prosecution attributed to administrative errors. The court found that the delay was significant enough to warrant a reduction in the sentence. Consequently, the court sentenced Smith to a term of imprisonment of 15 months, which was suspended for the term of the sentence upon the offender's entering into a good behaviour bond under section 12 of the Crimes (Sentencing Procedure) Act 1999. This outcome reflects the court's attempt to balance the need for deterrence with the mitigating factor of the delay in prosecution.
Orders
Orders of the court
Sentenced to a term of imprisonment of 15 months, to be suspended for the term of the sentence upon the offender's entering into a good behaviour bond under s 12 Crimes (Sentencing Procedure) Act 1999
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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