R v Smith - [2004] NSWCCA 69

CITATION: R v Smith [2004] NSWCCA 69

HEARING DATE(S): 16 March 2004

JUDGMENT DATE:
16 March 2004

JUDGMENT OF: McColl JA at 49; Studdert J at 1; Howie J at 50

DECISION: Appeal against conviction dismissed; leave to appeal against sentence granted but appeal dismissed.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act, s 43
Crimes Act, ss 113, 310D

CASES CITED: Ho v DPP (1995) 37 NSWLR 393
R v Smith [2003] NSWCCA 53
R v Thomson (unreported, NSWCCA 21 May 1986

PARTIES :
Regina v Kevin John Smith

FILE NUMBER(S): CCA 60433/03

COUNSEL: D. Arnott (Crown)
In person

SOLICITORS: C.K. Smith (Crown)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/41/0211

LOWER COURT
JUDICIAL OFFICER : Phelan DCJ

60433/03

McCOLL JA
STUDDERT J
HOWIE J
Tuesday 16 March 2004

REGINA v KEVIN JOHN SMITH

Judgment

1 STUDDERT J: The appellant, Kevin John Smith, pleaded guilty in the Local Court, Goulburn, to a charge of escape from lawful custody. The appellant adhered to that plea when he came before Phelan DCJ in the District Court at Wollongong.

2 The first occasion on which he came before his Honour was 4 April 2002. At that time the appellant had an appeal pending to the Court of Criminal Appeal and I shall refer further to this shortly, and because of that pending appeal Phelan DCJ adjourned the matter before him until 13 March 2003.

3 The appellant appeared unrepresented before his Honour on both those occasions. Having heard the appellant, the judge reserved his decision, proceeding to sentence the appellant on 6 June 2003. The sentence then imposed was a sentence of two years imprisonment to commence on 30 January 2004, and to expire on 29 January 2006. His Honour fixed a non-parole period of eighteen months to expire on 30 July 2005. The commencement date was later altered to 31 January 2004, pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999.

4 The reason for the commencement date of the sentence was that at the time of being sentenced the appellant was serving a term of imprisonment of six years four months, which term commenced on 27 January 2000, with a non-parole period expiring on 26 January 2004. That expiry date was, of course, postponed to account for the period that the appellant was at liberty following his escape from custody.

5 It is clear, having heard all the appellant has had to say in his submissions to this Court, that the appellant entertains a sense of grievance about that earlier sentence, and I shall return to consider it when addressing the grounds of appeal presented by the appellant to this Court.

6 The appellant now appeals against his conviction and seeks leave to appeal against the sentence imposed by Phelan DCJ. I observe that the offence for which he was sentenced is one for which s 310D of the Crimes Act provides for a maximum penalty of imprisonment for ten years.

7 The appellant escaped from his cell…

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 [2004] NSWCCA 69
Case: [2004] NSWCCA 69
Decision Date: 16 March 2004

CaseChat Overview and Summary

The case of R v Smith involved Kevin John Smith, who appealed against his conviction and sentence for escape from lawful custody. Smith had pleaded guilty to escaping from the Goulburn Correctional Centre, and the District Court sentenced him to two years imprisonment. Smith appealed both his conviction and sentence to the Court of Criminal Appeal. The appeal against the conviction was dismissed as there was no error in the original conviction and sentencing process. The Court considered whether the sentence was manifestly excessive but found that it was within the sound sentencing discretion, particularly considering the importance of general deterrence.

The Court of Criminal Appeal addressed the grounds of appeal raised by Smith, noting that some were repetitive and had already been dealt with in a previous appeal. The Court found that Smith's plea of guilty was valid, and there was no merit in the argument that he had not been properly advised to plead guilty. The Court also found no errors in the sentencing process, highlighting that the sentencing judge had considered all relevant factors, including Smith's criminal history, his plea of guilty, and the nature of the escape. The Court concluded that the sentence imposed was appropriate and not manifestly excessive.

The final orders of the Court were to dismiss the appeal against conviction and to grant leave to appeal against the sentence but dismiss the appeal against the sentence. The judges agreed with the outcome proposed by Studdert J.

Orders