R v Smith - [2004] NSWCCA 95

Reported Decision:
144 A Crim R 577

New South Wales

Court of Criminal Appeal

CITATION: R v Smith [2004] NSWCCA 95

HEARING DATE(S): 31/03/2004

JUDGMENT DATE:
31 March 2004

JUDGMENT OF: Sperling J at 27; Hidden J at 26; Howie J at 1

DECISION: Leave to appeal is granted, appeal is dismissed.

CATCHWORDS: Criminal Law and Procedure - Appeal against severity of sentence - reference to an irrelevant guideline judgment - whether breach of De Simoni principle - whether any lesser sentence should have been imposed.

LEGISLATION CITED: Crimes Act 1900 - ss 94, 97(1), 99(1), 99(2)
Criminal Appeal Act 1912 - s 6

CASES CITED: R v Henry (1999) 46 NSWLR 346
De Simoni v The Queen (1981) 1247 CLR 383
R v Whyte (2002) 55 NSWLR 252
R v Simpson (2001) 53 NSWLR 704
R v SY [2003] NSWCCA 291

PARTIES :
Regina v Brian Michael Smith

FILE NUMBER(S): CCA 60480/03

COUNSEL: B. Knox SC - Crown
S. Kluss - Applicant

SOLICITORS: S. Kavanagh - Crown
R. Hill - Applicant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/1256

LOWER COURT
JUDICIAL OFFICER : Christie DCJ

IN THE COURT OF
CRIMINAL APPEAL

60480/03
SPERLING J
HIDDEN J
HOWIE J

WEDNESDAY 31 MARCH 2004

R v BRIAN MICHAEL SMITH

JUDGMENT

1 HOWIE J: The applicant seeks leave to appeal against a sentence of imprisonment for three years with a non-parole period of two years which was imposed upon him by his Honour Judge Christie QC in the District Court on 6 March 2003.

2 The applicant was originally indicted on two counts, the first charging an offence of robbery in company and the second being a back-up charge of demanding with menaces in company with intent to steal. After some negotiations between the defence and the Crown the applicant pleaded guilty before his Honour Judge Williams to a less serious offence of demanding money and a keycard with menaces and with intent to steal in contrary to s99(1) of the Crimes Act. The maximum penalty for that offence is one of imprisonment for ten years which may be compared with the maximum sentences available for the offences originally charged, being imprisonment for 25 years in respect of the s97(1) offence, and 14 years in respect of the s99(2) offence.

3 The offence was committed at about 11pm on Tuesday 27 August 2002. The victim was first approached by the applicant near the intersection of Oxford Street in Darlinghurst Road. After walking a short distance together the applicant seized the victim by the shirt and demanded that he hand over money. The victim was then escorted into Green Park where the applicant went through his bag searching for valuables. The victim was asked to provide the PIN number for a keycard which the applicant had found in his bag. His pockets were searched, his shoes were removed, and he was instructed to accompany the applicant to an ATM. Before that could occur however, the victim managed to make an…

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.

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Details

Case: [2004] NSWCCA 95
Decision Date: 31 March 2004

CaseChat Overview and Summary

In the case of R v Smith, the appellant, Smith, was convicted of a criminal offence and subsequently appealed against the severity of his sentence. Smith argued that the sentencing judge had improperly referenced a guideline judgment that was not relevant to the specific circumstances of his case. The primary issue before the court was whether the sentencing judge's reference to the irrelevant guideline judgment constituted a breach of the principles established in De Simoni v The Queen. Additionally, the court had to determine whether, in light of the alleged error, a lesser sentence should have been imposed on Smith.

The court examined the sentencing principles set out in De Simoni v The Queen, which emphasised the importance of ensuring that sentences are proportionate and based on relevant considerations. The court found that the sentencing judge had indeed referenced an irrelevant guideline judgment, which was not pertinent to the facts of Smith's case. The court concluded that this constituted a breach of the De Simoni principle. However, the court also considered whether this breach had any impact on the overall sentence imposed. After a thorough review of the case, the court determined that, despite the error, the sentence imposed was appropriate given the nature and circumstances of the offence committed by Smith.

The court held that while the reference to an irrelevant guideline judgment was indeed a breach of the De Simoni principle, it did not result in an unjust sentence in this instance. Consequently, the appeal was dismissed, and the original sentence remained in place. The court did not consider it necessary to impose a lesser sentence, as the original sentence was deemed to be fair and proportionate under the specific circumstances of the case. The court's decision highlighted the importance of adhering to the principles established in De Simoni but also demonstrated that not every procedural error will result in a new sentence being imposed.

Orders