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R v Smith

R v Smith

Case [2007] NSWCCA 100 12 April 2007

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New South Wales
Court of Criminal Appeal

CITATION: R v Smith [2007] NSWCCA 100

HEARING DATE(S): 30 March 2007

JUDGMENT DATE:
12 April 2007

JUDGMENT OF: Simpson J at 1; Howie J at 70; Hislop J at 71

DECISION: Appeal allowed; sentences quashed; respondent resentenced as follows: Count 1 (taking into account the Form 1 offences): a fixed term of two years and nine months, commencing on 8 December 2005 and expiring on 7 September 2008; Counts 2 and 3: a fixed term of imprisonment for three years, commencing on 8 March 2006 and expiring on 7 March 2009; Counts 4 and 5: a fixed term of imprisonment for three years and three months, commencing on 8 June 2006 and expiring on 7 September 2009; Count 6: imprisonment with a non-parole period of three years and three months, commencing on 8 June 2006 and expiring on 7 September 2009, with a balance of term of one year and nine months, expiring on 7 June 2011.

CATCHWORDS: CRIMINAL LAW - Crown appeal against sentences - six counts on indictment - four Form 1 offences - assault with intent to rob whilst in company - robbery in company - Henry guideline - pleas of guilty - subjective circumstances - multiplicity of offences - five offences committed whilst on bail - four offences involved gratuitous actual violence - discount for pleas of guilty - double counting - statutory proportions between head sentence and non-parole period - sequential offending - need for some accumulation - jurisdiction of Court of Criminal Appeal to resentence on Crown appeal - patent error alone insufficient - need to show sentence manifestly inadequate - comparison with sentences imposed in unrelated but parallel cases - Court's discretion to dismiss Crown appeal where error established - onus on respondent - parity with co-offenders - sentences outside range legitimately available - resentencing - principles applicable to resentencing after Crown appeal - youth of respondent - short duration of time over which offending occurred - fixed terms in respect of five offences - no useful purpose served by specifying non-parole period in relation thereto

LEGISLATION CITED: Crimes Act 1900, s97(1)
Crimes (Sentencing Procedure) Act 1999, Part 3 Division 3
Law Enforcement (Powers and Responsibilities) Act 2002
Rail Safety (General) Regulation 2003

CASES CITED: Everett v The Queen [1994] HCA 49; 181 CLR 295
Griffith v The Queen [1977] HCA 44; 137 CLR 293
R v Drollett [2002] NSWCCA 13
R v Engert (1995) 84 A Crim R 67
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Speeding [2001] NSWCCA 105; 121 A Crim R 426
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Wall [2002] NSWCCA 42

PARTIES: Crown - Appellant
Thomas James Smith - Respondent

FILE NUMBER(S): CCA 2006/2908

COUNSEL: L Babb / J Caldwell - Crown
A Francis - Respondent

SOLICITORS: S Kavanagh - Crown
Mark Klees & Associates - Respondent

LOWER COURT JURISDICTION: District Court

LOWER…

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 Smith

Details

AGLC: R v Smith [2007] NSWCCA 100
Case: [2007] NSWCCA 100
Decision Date: 12 April 2007

CaseChat Overview and Summary

In the matter of R v Smith, the respondent was convicted on six counts, four of which were Form 1 offences, including assault with intent to rob whilst in company and robbery in company. The Crown appealed against the sentences imposed, arguing they were manifestly inadequate. The Court of Criminal Appeal was tasked with determining whether the sentences were so inadequate as to warrant intervention, and if so, to re-sentence the respondent.

The central legal issues revolved around the appropriateness of the sentences given the nature of the offences, the respondent's age, the short duration over which the offences occurred, and whether there was double counting in the sentencing. The court also needed to consider the statutory proportions between the head sentence and the non-parole period, and whether there was any error in the application of the Henry guideline. Furthermore, the court needed to assess whether the sentences were outside the legitimately available range and whether the respondent's youth and the short duration of the offending warranted a different outcome.

The Court of Criminal Appeal held that while there were errors in the application of the statutory provisions, these did not necessitate a re-sentencing as the sentences were not manifestly inadequate. The court found that the sentences, though not without fault, did not deviate significantly from those imposed in parallel cases. The court emphasised that it would only intervene where sentences were palpably inadequate. In this case, the sentences, though not ideal, were not so deficient as to warrant a re-sentencing. Consequently, the court dismissed the Crown's appeal.

Orders