R v Smith

[2020] NSWDC 459

District Court

New South Wales

Medium Neutral Citation:

R v Smith [2020] NSWDC 459

Hearing dates:

13 July 2020

Date of orders:

13 July 2020

Decision date:

13 July 2020

Jurisdiction:

Criminal

Before:

M L Williams SC DCJ

Decision:

A term of imprisonment of three years, six months with a non-parole period of two years, five months: at [37].

Catchwords:

SENTENCING — Aggravating factors — Breach of conditional liberty

SENTENCING — Mitigating factors — Rehabilitation

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Maximum penalty — Objective seriousness —Purposes of sentencing — Victim impact statement

SENTENCING — Subjective considerations on sentence — Bail pending sentence — Intoxication — Special circumstances

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Cordeiro v The Queen [2019] NSWCCA 308

Day v The Queen [2017] NSWCCA 192

Jeffreys v The Queen [2015] NSWCCA 132

R v Thomas [2007] NSWCCA 269

R v Tonari [2014] NSWCCA 232

Texts Cited:

Nil

Category:

Sentence

Parties:

Regina (Crown)

Tama Smith (Offender)

Representation:

Ms N Keay (Crown Prosecutor)

Mr P Winch (Counsel for the Offender)

File Number(s):

2019/542

Publication restriction:

STATUTORY NON-PUBLICATION APPLIES
Section 578A Crimes Act 1900 (any matter that may identify the complainant(s))

Judgment

1. Tama Smith, now aged 45, was found guilty by a jury at Goulburn District Court in February this year of one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900. The offence carries a maximum penalty of 14 years with a standard non-parole period of seven years imprisonment. The maximum penalty and the standard non-parole period are yardsticks in the sentencing process which must be carried out bearing in mind the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, which include punishment, denunciation, making the offender accountable for his actions and recognising the harm done to the victim.

2. He was in custody for one day before being granted bail. He was granted bail after the jury’s verdict so that he might return to Queensland and put his affairs in order. It is conceded by Mr Winch of counsel for the offender, that a term of full-time custody is required, and it is unnecessary for me to consider any alternatives. It is clear that a term of imprisonment should take into account the one day in custody already served, so it would commence yesterday, 12 July 2020.

3. The facts on which I must sentence Mr Smith have been outlined by the Crown, and are not contested by Mr Winch as being consistent with the jury’s verdict and the evidence at the trial.

Facts

4. The victim was 39 years old at the time of the offence.

5. Smith was working as a scaffolder in the Southern Highlands and residing at caravan park in Moss Vale at the time.

6. On New Year’s Eve 2018, Smith went to the Argyle Hotel at Moss Vale and started drinking beer with friends. The group spent the afternoon and…