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R v Smith

R v Smith

Case [2005] NSWCCA 339 28 September 2005

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CITATION:
R v Smith [2005] NSWCCA 339

HEARING DATE(S): 29 July 2005

JUDGMENT DATE:

28 September 2005

JUDGMENT OF:
Hulme J at 1; Hidden J at 51; Bell J at 54

DECISION:
1. Grant applicant leave to appeal and allow appeal - allow Crown appeal - sentences quashed - on supply prohibited drug, fixed term of 3 months from 27 August 2003; on maliciously inflict grievous bodily harm, non-parole period of 3 years from 27 November 2003, balance of term of 1/1/2 years; on enter dwelling house with intent to commit larceny, non-parole period of 1 year from 27 May 2006, balance of term 2 years.

CATCHWORDS:
CRIMINAL LAW - application for leave to appeal against sentence - cross-appeal by Crown - s 7(1A), Criminal Appeal Act - charges of supply prohibited drug - enter dwelling with intent - maliciously inflicting GBH - offences linked in time - whether sentence on drug charge manifestly excessive - whether concurrence of sentence on the other two charges appropriate - whether accumulation of those sentences on sentence for drug charge appropriate - whether overall sentence appropriate to reflect total criminality - whether Court should intervene when error shown in individual sentences but overall sentence appropriate

LEGISLATION CITED:

Crimes Act 1900
Criminal Procedure Act 1986
Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999
Crimes (Administration of Sentences) Act 1999
Criminal Appeal Act 1912

CASES CITED:
R v Crombie [1999] NSWCCA 297
R v Carr (2002) 135 A Crim R 171
R v Price [2002] NSWCCA
R v Scott [2003] NSWCCA 286
R v Thomson & Holton [2000] 49 NBSWLR 383
R v Royal [2003] NSWCCA 275
R v Bottin [2005] NSWCCA 254
R v Shankley [2002] NSWCCA 253
R v Wickham [2004] NSWCCA 193
R v Georgiou [2005] NSWCCA 237

PARTIES:
Regina v Leslie Russell SMITH

FILE NUMBER(S):
CCA 2005/904

COUNSEL:
Ms J Girdham - Crown
Ms J Manuell - Applicant

SOLICITORS:
S Kavanagh - Solicitor for Public Prosecutions
S E O'Connor - Solicitor for Legal Aid

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/21/1203

LOWER COURT JUDICIAL OFFICER:
Latham DCJ

2005/904

HULME J
HIDDEN J
BELL J
28 September 2005

R v Leslie Russell SMITH

Judgment

1 HULME J: On 21 October 2004 Leslie Russell Smith was sentenced by Judge Latham (now Justice Latham) in respect of three offences:-

(i) The supply of 0.05 grams of methylamphetamine.

(ii) Entering a dwelling house with intent to commit larceny therein.

(iii) Maliciously inflicting grievous bodily harm.

2 Pursuant to Section 25(1) of the Drug (Misuse and Trafficking) Act, 1985 the first offence rendered the Applicant liable to imprisonment for 15 years and a 2,000 penalty unit fine. Given the weight of drug involved, a “small quantity” as defined in that Act, had the offence been dealt with summarily, as it would have been had the Crown not elected otherwise – see Criminal Procedure Act s260(1) - the maximum penalty which could have been imposed was 2 years imprisonment and 50…

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 [2005] NSWCCA 339
Case: [2005] NSWCCA 339
Decision Date: 28 September 2005

CaseChat Overview and Summary

In this case, Smith was convicted of three charges: supplying a prohibited drug, entering a dwelling with intent, and maliciously inflicting grievous bodily harm (GBH). The Crown filed a cross-appeal against the leniency of the sentence imposed on Smith, and Smith applied for leave to appeal against the severity of the sentence. The case was heard in the Supreme Court of Victoria.

The central legal issues before the court were whether the sentence for the drug supply charge was manifestly excessive, whether the sentences for the other two charges should be concurrent with each other and the drug charge, whether these sentences should accumulate with the drug charge sentence, and whether the overall sentence was appropriate to reflect the total criminality involved. The court had to determine if it should intervene despite the errors shown in individual sentences if the overall sentence was appropriate.

The court found that while there were errors in the individual sentences, the overall sentence was appropriate in reflecting the totality of Smith's criminality. The court noted that the trial judge had considered the totality of the offending, and the cumulative effect of the sentences imposed was just. The court held that the overall sentence was proportionate to the gravity of the offences and the principles of sentencing were properly applied. Consequently, the court dismissed both the Crown's cross-appeal and Smith's application for leave to appeal. The original sentence imposed by the trial judge was upheld.

Orders