R v Smee

Case [2023] NSWDC 618 14 December 2023

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District Court

New South Wales

Medium Neutral Citation: R v Smee [2023] NSWDC 618
Hearing dates: 1 December 2023
Date of orders: 1 December 2023
Decision date: 14 December 2023
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Specify a term of imprisonment of 3 years with a non-parole period of 1 year 6 months.

Catchwords:
CRIME — Sexual offences — Aggravated sexual assault — Victim <16 years — Victim substantially intoxicated

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Intoxicated Persons Act 1979 (NSW)
Intoxicated Persons Act 2000 (NSW)
Intoxicated Persons (Sobering Up Centres Trial) Act 2013 (NSW)
Police Offences Act 1901 (NSW)

Cases Cited:
Cheung v The Queen (2001) 209CLR 1
CMB v Attorney General (NSW) (2016) 256 CLR 346
DXH (A Pseudonym) v The Queen [2023] NSWCCA 140
Howard v The Queen [2019] NSWCCA 109
JL v The Queen [2014] NSWCCA 130
Kelly v The Queen [2022] NSWCCA
Lewins v The Queen [2007] NSWCCA 189
Le v The Queen [2019] NSWCCA 181
Markarian v The Queen [2005] HCA 25
Muldrock v The Queen [2011] HCA 39
Panetta v The Queen [2016] NSWCCA 85
Ryan v The Queen (2001) 206 CLR
R v Calderoni [2000] NSWCCA 511
R v Daley [2010] NSWCCA 223
R v Ellis (1986) 6 NSWLR 603
R v Fernando [2004] NSWCCA 147
R v GLB [2003] NSWCCA 210
R v Hassan [2005] NSWCCA 21
R v Isaacs (1997) 41 NSWLR 374
R v Kramer [2023] NSWCCA 152
R v Millwood [2012] NSWCCA 2
R v Olbrich (1999) 199 CLR 162
R v SS [2021] NSWCCA 56
R v XX [2017] NSWCCA 90
Sabapathy v The Queen [2008] NSWCCA 2
Savvas v The Queen (1995) 183 CLR 1
SZ v The Queen [2007] NSWCCA 19
Tepania v The Queen [2018] NSWCCA 247
Veen v The Queen (No 2) [1988] HCA 14
Z v The Queen [2014] NSWCCA 323

Texts Cited:
A J Goran QC and R P Vine Hall, Bignold's Police Offences and Vagrancy Acts and Certain Other Acts, 9th ed

Category: Sentence
Parties: Rex (Crown)
Jayden Smee (Offender)
Representation:
Counsel:
Ms L Jardim (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Offender)

File Number(s): 2020/00358616

Judgment

Introduction

On Tuesday, 1 August 2023, the trial of Jayden Smee was allocated to me, in the District Court Sydney. First, to resolve questions of law, which did not, in the result, consume much time; thereafter, for the trial to commence with the selection of a jury. Before this, the accused was arraigned and pleaded not guilty to each of the charges presented in the original indictment.

The Indictment

The indictment upon which the Crown proceeded alleged two offences from a single event. The charges were identical and in the following terms:

On 14 April 2019, at Concord, in the State of New South Wales, the accused did have sexual intercourse with CE, without the consent of CE, knowing that she was not consenting, in circumstances of aggravation, namely, that, at…

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 Smee

Details

AGLC: R v Smee [2023] NSWDC 618
Case: [2023] NSWDC 618
Decision Date: 14 December 2023

CaseChat Overview and Summary

The case of R v Smee involved the defendant being charged with aggravated sexual assault. The victim was a young woman who was subjected to sexual violence by the defendant. The case was heard in a court of law, where the judge presided over the proceedings and determined the outcome. The defendant was found guilty of the charge, and the court was required to decide on an appropriate sentence.

The legal issues that the court had to consider included the severity of the crime, the impact of the crime on the victim, and the defendant's criminal history. The court also had to consider the principles of sentencing and the need to deter future offending. The court had to balance these factors to determine an appropriate sentence that would reflect the seriousness of the crime and provide justice for the victim.

In delivering the judgment, the judge considered the evidence presented in the case and the arguments made by both parties. The judge found that the crime was of a high degree of severity, and that the defendant's criminal history was not significant. The judge also considered the impact of the crime on the victim and the need to provide deterrence. After considering all of these factors, the judge sentenced the defendant to a term of imprisonment of 3 years with a non-parole period of 1 year 6 months. The court's decision reflects the seriousness of the crime and the need to provide justice for the victim.

Orders

Orders of the court

Specify a term of imprisonment of 3 years with a non-parole period of 1 year 6 months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Smee [2023] NSWDC 618

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 26 of 26 shown

Kramer v R; R v Kramer
[2023] NSWCCA 152 Para 160

…I have been invited to two authorities, R v Kramer [2023] NSWCCA 152, and Sabapathy v The Queen [2008] NSWCCA 2.…
R v SS
[2021] NSWCCA 56 Para 18

…, and subsequent authorities in which it was considered provide guidance as to why such assistance may justify a sentence discount under s 23: R v SS [2021] NSWCCA 56, at 43 to 44, and the discussion at paras 59 to 65.…
Le v R
[2019] NSWCCA 181 Para 26

…igating police amounted to assistance, within the section; its utility to be considered according to the provisions of the section. In Le v The Queen [2019] NSWCCA 181, the accused made statements to police during the execution of a search warrant at his home on a charge of cultivation, but the statements did not am…
Howard v R
[2019] NSWCCA 109 Para 26

…On the other hand, in Howard v The Queen [2019] NSWCCA 109, it was held that admissions made by the offender to investigating police amounted to assistance, within the section; its utility to be considered according to the provisions of the section. In Le v The Queen [2019] NSWCCA 181, the accused made statements to…
Tepania v The Queen
[2018] NSWCCA 247 Para 111

…In Tepania v The Queen [2018] NSWCCA 247, Johnson J provided guidance upon the assessment of objective gravity and the significance of moral culpability in the process of determining sentences for offences with and without standard non parole periods.…
R v XX
[2017] NSWCCA 90 Para 15

…n by the offender, there is scope for the operation of these principles, if it is appropriate, in the present case, after a finding of guilt : R v XX [2017] NSWCCA 90, DXH (A Pseudonym) v The Queen [2023] NSWCCA 140.…
Panetta v R
[2016] NSWCCA 85 Para 22

…In Panetta v The Queen [2016] NSWCCA 85, the applicant was entitled to considerable leniency for his confession, in circumstances where there was no prospect of a murder, or the offender's involvement in it, becoming known (see paragraph 70). On the other hand, in R v SS , Ibid, the offender was not entitled to len…
CMB v Attorney-General (NSW)
[2015] HCA 9 Para 18

…Following CMB v Attorney General (NSW) (2016) 256 CLR 346, it has been accepted that assistance of this kind may entitle an offender to a reduced sentence under s 23 of the Act . R v Ellis , Ibid, and subsequent authorities in which it was considered provide guidance as to why such assistance may justify a sentence d…
Z v R
[2014] NSWCCA 323 Para 47

…n he was aware that she was "drunk", reveals that his attitude was other than one of callous disregard. I am invited to the decision of Z v The Queen [2014] NSWCCA 323, dealing with the decision in SZ v The Queen [2007] NSWCCA 19, and the approach to be taken toward a percentage of discount, if one is to be applied.…
JL v R
[2014] NSWCCA 130 Para 3

…Provision of a password to enable police to access a computer did not merit a discount in the circumstances of the particular case ( JL v The Queen [2014] NSWCCA 130).…
R v Millwood
[2012] NSWCCA 2 Para 118

…advantage in his life, such that it left him without adequate emotional resources sufficient for him to guide his behavioural decisions: R v Millwood [2012] NSWCCA 2, per Simpson J, at 69.…
Muldrock v The Queen
[2011] HCA 39 Para 112

…n parole periods in Pt 4, Div. 1A, Crimes (Sentencing Procedure) Act 1999 , after the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39, adopting the principles enunciated there. These provide that the standard non parole period for an offence is that which is included in the table to…
R v Daley
[2010] NSWCCA 223 Para 163

…The duration of the offence, over five minutes, was the subject of commentary by Price J in R v Daley [2010] NSWCCA 223, which is apposite here. At paragraph 48, his Honour wrote:…
Jeffrey Wayne DAVIE v R
[2008] NSWCCA 2 Para 160

…I have been invited to two authorities, R v Kramer [2023] NSWCCA 152, and Sabapathy v The Queen [2008] NSWCCA 2.…
Lewins v R
[2007] NSWCCA 189 Para 21

…Howie J said, in Lewins v The Queen [2007] NSWCCA 189, at 18:…
SZ v R
[2007] NSWCCA 19 Para 47

…was other than one of callous disregard. I am invited to the decision of Z v The Queen [2014] NSWCCA 323, dealing with the decision in SZ v The Queen [2007] NSWCCA 19, and the approach to be taken toward a percentage of discount, if one is to be applied.…
Markarian v The Queen
[2005] HCA 25 Para 114

…ing upon the question of the appropriate sentence in the process of intuitive synthesis, discussed, for example, by McHugh J in Markarian v The Queen [2005] HCA 25.…
R v Hasan
[2005] NSWCCA 21 Para 23

…m a co offender, the police were close to identifying the offender, at which point the offender voluntarily surrendered and confessed (see R v Hassan [2005] NSWCCA 21, at 23).…
R v Fernando
[2004] NSWCCA 147 Para 2

…sample, or made a statement, not knowing it was incriminating, a matter justifying a grant of a discount for assistance to authorities ( R v Fernando [2004] NSWCCA 147).…
R v GLB
[2003] NSWCCA 210 Para 20

…In R v GLB [2003] NSWCCA 210, the Court held, at 33, that, although some discount should be allowed:…
Cheung v The Queen
[2001] HCA 67 Para 52

…of "beyond reasonable doubt", and those which the offender would advance in mitigation will be accepted if proven upon the balance of probabilities: Cheung v The Queen (2001) 209CLR 1; R v Olbrich (1999) 199 CLR 162; Savvas v The Queen (1995) 183 CLR 1; R v Isaacs (1997) 41 NSWLR 374).…
Ryan v The Queen
[2001] HCA 21 Para 19

…In Ryan v The Queen (2001) 206 CLR, McHugh J discussed the extent to which leniency may be extended, pursuant to R v Ellis , Ibid, saying, at paragraph 15, that:…
R v Calderoni
[2000] NSWCCA 511 Para 1

…Unwitting assistance given by an accused person does not come within the scope of the section. In R v Calderoni [2000] NSWCCA 511, the accused gave evidence, in his trial for murder, admitting involvement in another offence and was charged with that, after being acquitted of murder.…
R v Olbrich
[1999] HCA 54 Para 52

…he offender would advance in mitigation will be accepted if proven upon the balance of probabilities: Cheung v The Queen (2001) 209CLR 1; R v Olbrich (1999) 199 CLR 162; Savvas v The Queen (1995) 183 CLR 1; R v Isaacs (1997) 41 NSWLR 374).…
Veen v The Queen (No 2)
[1988] HCA 14 Para 117

…His Honour discussed the concept of moral culpability, found in several decisions in the High Court, beginning with Veen v The Queen (No 2) [1988] HCA 14, leading to the observation that an offender's limited moral culpability may mean that retribution and denunciation do not require significant emphasis.…
Savvas v R
[1995] HCA 29 Para 52

…will be accepted if proven upon the balance of probabilities: Cheung v The Queen (2001) 209CLR 1; R v Olbrich (1999) 199 CLR 162; Savvas v The Queen (1995) 183 CLR 1; R v Isaacs (1997) 41 NSWLR 374).…

Legislation cited in this decision · 5

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 5)
Crimes Act 1900 (ACT)
1 mention
Intoxicated Persons (Sobering Up Centres Trial) Act 2013 (NSW)
1 mention (from Para 99)
Intoxicated Persons Act 1979 (NSW)
1 mention (from Para 99)
Police Offences Act 1901 (NSW)
1 mention (from Para 100)

Medium Neutral Citation:	R v Smee [2023] NSWDC 618
Hearing dates:	1 December 2023
Date of orders:	1 December 2023
Decision date:	14 December 2023
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Specify a term of imprisonment of 3 years with a non-parole period of 1 year 6 months.
Catchwords:	CRIME — Sexual offences — Aggravated sexual assault — Victim <16 years — Victim substantially intoxicated
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Intoxicated Persons Act 1979 (NSW) Intoxicated Persons Act 2000 (NSW) Intoxicated Persons (Sobering Up Centres Trial) Act 2013 (NSW) Police Offences Act 1901 (NSW)
Cases Cited:	Cheung v The Queen (2001) 209CLR 1 CMB v Attorney General (NSW) (2016) 256 CLR 346 DXH (A Pseudonym) v The Queen [2023] NSWCCA 140 Howard v The Queen [2019] NSWCCA 109 JL v The Queen [2014] NSWCCA 130 Kelly v The Queen [2022] NSWCCA Lewins v The Queen [2007] NSWCCA 189 Le v The Queen [2019] NSWCCA 181 Markarian v The Queen [2005] HCA 25 Muldrock v The Queen [2011] HCA 39 Panetta v The Queen [2016] NSWCCA 85 Ryan v The Queen (2001) 206 CLR R v Calderoni [2000] NSWCCA 511 R v Daley [2010] NSWCCA 223 R v Ellis (1986) 6 NSWLR 603 R v Fernando [2004] NSWCCA 147 R v GLB [2003] NSWCCA 210 R v Hassan [2005] NSWCCA 21 R v Isaacs (1997) 41 NSWLR 374 R v Kramer [2023] NSWCCA 152 R v Millwood [2012] NSWCCA 2 R v Olbrich (1999) 199 CLR 162 R v SS [2021] NSWCCA 56 R v XX [2017] NSWCCA 90 Sabapathy v The Queen [2008] NSWCCA 2 Savvas v The Queen (1995) 183 CLR 1 SZ v The Queen [2007] NSWCCA 19 Tepania v The Queen [2018] NSWCCA 247 Veen v The Queen (No 2) [1988] HCA 14 Z v The Queen [2014] NSWCCA 323
Texts Cited:	A J Goran QC and R P Vine Hall, Bignold's Police Offences and Vagrancy Acts and Certain Other Acts, 9th ed
Category:	Sentence
Parties:	Rex (Crown) Jayden Smee (Offender)
Representation:	Counsel: Ms L Jardim (Offender) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Legal Aid NSW (Offender)
File Number(s):	2020/00358616