R v Smith

Case [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

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

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

  3. 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…

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Details
AGLC
R v Smith [2020] NSWDC 459
Case
[2020] NSWDC 459
Decision Date

CaseChat Overview and Summary

In the case before the court, the defendant, Smith, was found guilty of various criminal charges and was subsequently sentenced. The court had to consider various factors in determining the appropriate sentence. The legal issues before the court included the objective seriousness of the crime, the purposes of sentencing, the impact on the victim, and the consideration of both aggravating and mitigating factors.

The court identified several aggravating factors, including the breach of conditional liberty, which led to Smith reoffending. The court also considered the maximum penalty for the offence and the subjective considerations of the case, including the impact of intoxication at the time of the offence and Smith’s prospects for rehabilitation. The victim impact statement played a significant role in highlighting the consequences of Smith’s actions. The court balanced these factors against mitigating elements, such as Smith’s potential for rehabilitation and the fact that he was on bail at the time of the offence.

After careful consideration, the court determined that the appropriate sentence was a term of imprisonment of three years and six months, with a non-parole period of two years and five months. This decision took into account the need for punishment, deterrence, and rehabilitation. The court emphasised the importance of addressing the objective seriousness of the crime and the impact on the victim, while also considering Smith’s circumstances and potential for reform. The sentence reflects a balanced approach to the purposes of sentencing, ensuring that justice is served for both the victim and the community.

Orders

Orders of the court

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

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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