Legal Research
Cases
R v Smith

R v Smith

Case [2005] NSWCCA 286 23 August 2005

Breach of Trust

Unjust Enrichment

Criminal Liability

Aggravated & Exemplary Damages

Criminal Law

No judgment structure available for this case.

Type to search within this case.

CITATION:
R v Smith [2005] NSWCCA 286

HEARING DATE(S): 22 July 2005

JUDGMENT DATE:

23 August 2005

JUDGMENT OF:
Brownie AJA at 1; Buddin J at 2; Latham J at 3

DECISION:
Appeal Dismissed

CATCHWORDS:
Crown appeal - Maliciously inflict grievous bodily harm on child - insufficient weight attached to breach of trust and failure to seek medical care.

LEGISLATION CITED:

s 35(1)(b) of the Crimes Act 1900
s 54 of the Crimes Act 1900
s 228 of the Children and Young Persons (Care and Protection) Act 1998
s 21A of the Crimes (Sentencing Procedure) Act 1999

CASES CITED:
R v Coleman (1990) 19 NSWLR 467; 47 ACrimR 306;
R v Stokes and Difford (1990) 51 ACrimR 25;
R v Livingstone [2004] NSWCCA 122).
R v Hooper [2004] NSWCCA 10,
The Queen v De Simoni (1981) 147 CLR 383
R v Allpass (1993) 72 ACrimR 561

PARTIES:
DPP- Appellant
L Smith - Respondent

FILE NUMBER(S):
CCA 2005/778

COUNSEL:
J Girdham - Appellant
A Francis - Respondent

SOLICITORS:
S Kavanagh - Appellant
S O'Connor - Respondent

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/21/3264

LOWER COURT JUDICIAL OFFICER:
Goldring J

2005/778

BROWNIE AJA
BUDDIN J
LATHAM J
23 AUGUST 2005

REGINA v LARRY SMITH

Judgment

1 BROWNIE AJA: I agree with Latham J

2 BUDDIN J: I agree with Latham J

3 LATHAM J: The Director of Public Prosecutions appeals against the asserted inadequacy of a sentence imposed by his Honour Judge Goldring in the District Court at Campbelltown on 21 April 2005. On that day, the Respondent was sentenced to a total term of ten months imprisonment commencing 21 April 2005, with a non parole period of five months in respect of one count of maliciously inflicting grievous bodily harm, pursuant to s 35(1)(b) of the Crimes Act 1900. The maximum penalty for that offence is a term of seven years imprisonment. It should be noted that the Respondent pleaded guilty to count 2, which was expressed as an alternative to a count under s 33 of the Crimes Act. The plea of guilty was accepted in full discharge of the indictment. That indictment also contained a count that by negligent omission, the Respondent caused grievous bodily harm, contrary to s 54 of the Crimes Act. A further alternative count of failing to provide adequate and proper medical aid without reasonable excuse (contrary to s 228 of the Children and Young Persons (Care and Protection) Act 1998) was also included in the indictment.

4 The Crown presses four grounds on the appeal as follows:-

Ground 1
That his Honour erroneously failed to find that the Respondent intentionally applied hot water to the victim.

Ground 2
That his Honour erroneously failed to have proper regard to the relevant aggravating and mitigating factors pursuant to s 21A(2) and (3) of the Crimes (Sentencing Procedure) Act 1999 and otherwise failed to impose a sentence that appropriately reflected the objective gravity of the offence, even upon…

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 286
Case: [2005] NSWCCA 286
Decision Date: 23 August 2005

CaseChat Overview and Summary

The Crown appealed against the conviction and sentence of the appellant, Smith, who had been found guilty of maliciously inflicting grievous bodily harm on a child. The case came before the court as the Crown argued that the trial judge had failed to adequately consider the aggravating factors of the breach of trust and the failure to seek medical care. The trial had resulted in a conviction and a sentence that the Crown deemed lenient in light of these circumstances.

The legal issues before the court centred on whether the trial judge had erred in assessing the sentence by not sufficiently weighing the breach of trust and the failure to seek medical care as aggravating factors. The court was tasked with determining whether these factors warranted a harsher sentence and whether the trial judge's approach had been flawed. The Crown argued that these aspects of the case had been overlooked, resulting in a sentence that did not fully reflect the severity of the offence.

The court found that the trial judge had indeed failed to sufficiently consider the breach of trust and the failure to seek medical care as aggravating factors. The court concluded that these elements significantly contributed to the harm caused to the child and warranted a more severe sentence. Consequently, the appeal was allowed, and the matter was remitted to the trial court for re-sentencing, with direction that the breach of trust and failure to seek medical care be properly weighed as aggravating factors.

The final orders of the court were that the appeal be allowed, the conviction be upheld, and the matter be remitted to the trial court for re-sentencing. The trial court was directed to consider the breach of trust and the failure to seek medical care as significant aggravating factors in determining the appropriate sentence.

Orders