R v Smith

The appellant, Damien Joshua Smith, was convicted of one count of using a carriage service to access child pornography material, contrary to section 474.19(1)(a)(i) of the Criminal Code 1995 (Cth). Smith was sentenced to 18 months imprisonment with release after serving three months upon entering into a recognizance of $500 for three years and subject to supervision for 18 months. Smith applied for leave to appeal against the sentence, arguing that it was manifestly excessive and that the sentencing judge did not give sufficient regard to his psychological issues and the principle in section 17A of the Crimes Act 1914 (Cth) that imprisonment is a sentence of last resort.

The court was required to consider whether the sentence was manifestly excessive, whether the sentencing judge gave sufficient regard to Smith's psychological issues, and whether requiring Smith to serve a period of actual imprisonment gave sufficient regard to the principle in section 17A of the Crimes Act 1914 (Cth) that imprisonment is a sentence of last resort. The court considered the nature and circumstances of the offence, Smith's background and psychological issues, and the sentencing principles set out in the Crimes Act 1914 (Cth).

The court held that the sentence was not manifestly excessive, and that the sentencing judge had given sufficient regard to Smith's psychological issues and the principle in section 17A of the Crimes Act 1914 (Cth) that imprisonment is a sentence of last resort. The court found that the sentence was appropriate in the circumstances, taking into account the seriousness of the offence, the need to deter Smith and others from committing similar offences, and the need to protect the community. The court also found that the sentencing judge had properly considered the mitigating factors, including Smith's psychological issues, and that the sentence was not disproportionate to the offence.

The application for leave to appeal against sentence was refused. A warrant was issued for the arrest of Damien Joshua Smith to lie in the registry for seven days.