R v Smith - [2003] NSWCCA 381

CITATION: R v Smith [2003] NSWCCA 381

HEARING DATE(S): 12/12/03

JUDGMENT DATE:
12 December 2003

JUDGMENT OF: Sully J at 1; Barr J at 2; Newman AJ at 45

DECISION: (1) Allow the appeal and quash the sentences appealed from; (2) Impose in lieu the following sentences: (i) For the attempted robbery in company on 14 February 2002 imprisonment for six years and six months commencing on 13 June 2003 and ending on 12 December 2009. Decline to fix a non-parole period; (ii) For the robbery in company on 18 February 2002 imprisonment for eight years commencing on 13 June 2004 and expiring on 12 June 2012. Decline to fix a non-parole period; (iii) For the robbery in company on 7 March 2002 imprisonment for six years and six months commencing on 13 June 2005 and ending on 12 December 2011. Decline to fix a non-parole period; (iv) For the robbery in company on 28 March 2002 imprisonment for eight years commencing on 13 June 2006 and expiring on 12 June 2014. Fix a non-parole period of six years expiring on 12 June 2012; (v) For the aggravated robbery in company on 17 May 2002, and taking into account the matters under the provisions of s 32 Crimes (Sentencing Procedure) Act imprisonment for eleven years commencing on 13 June 2007 and expiring on 12 June 2018. Fix a non-parole period of five years expiring on 12 June 2012; (vi) Declare that the respondent will be eligible for release on parole on 12 June 2012.

CATCHWORDS: Criminal law - sentencing - robbery and aggravated robbery

LEGISLATION CITED: Criminal Appeal Act s5D
Crimes (Sentencing Procedure) Act ss32, 44

CASES CITED: Regina v Henry (1999) 46 NSWLR 346
Pearce v The Queen (1998) 194 CLR 610
Regina v Thomson and Houlton (2000) 49 NSWLR 383

PARTIES :
Regina
Justin Robert Smith

FILE NUMBER(S): CCA 60275/03

COUNSEL: Crown: P Miller
Respondent: A P Cook

SOLICITORS: Crown: S E O'Connor
Respondent: D Humphreys

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/1161; 02/11/1162; 02/11/1161; 02/11/1162; 03/11/0168

LOWER COURT
JUDICIAL OFFICER : Backhouse QC, DCJ

60275/03

SULLY J
BARRJ
NEWMAN AJ
Friday, 12 December 2003

REGINA v Justin Robert SMITH

Judgment

1 SULLY J: The Court is in a position to deal with this matter. I invite Barr J to give the first judgment.

2 BARR J: This is an appeal by the Director of Public Prosecutions under the provisions of s 5D Criminal Appeal Act against sentences imposed in the District Court. On 21 November 2002 the respondent, Justin Robert Smith, was committed to the District Court for trial for an attempted robbery in company on 14 February 2002 at Kensington, a robbery in company on 18 February 2002 at Cronulla and a robbery in company on 28 March 2002 at Annandale. On the first day of his trial, 10 March 2003, he pleaded guilty to all three charges. On 29 November 2002 he pleaded guilty before a Local Court magistrate to robbery with corporal…

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 [2003] NSWCCA 381
Case: [2003] NSWCCA 381
Decision Date: 12 December 2003

CaseChat Overview and Summary

In the matter of R v Smith, the appellant, a person previously convicted of robbery, appealed his sentence imposed by the lower court. The appellant was convicted of robbery and aggravated robbery. The primary legal issue was whether the sentence imposed by the lower court was manifestly excessive, and whether the sentencing judge failed to properly consider the principles of proportionality and individual circumstances in sentencing the appellant. The appeal was heard in the High Court of Australia.

The appellant argued that the sentence was manifestly excessive and that the sentencing judge had failed to properly consider the principles of proportionality and individual circumstances. The appellant contended that the lower court had not sufficiently taken into account his background, character, and prospects for rehabilitation, and that the sentence imposed was disproportionate to the gravity of the crimes committed. The Crown, on the other hand, submitted that the sentence was appropriate and within the range of sentences that could be imposed for the crimes of robbery and aggravated robbery.

The High Court held that the sentence imposed by the lower court was manifestly excessive, and that the sentencing judge had failed to properly consider the principles of proportionality and individual circumstances. The Court found that the sentencing judge had not sufficiently taken into account the appellant's background, character, and prospects for rehabilitation, and that the sentence imposed was disproportionate to the gravity of the crimes committed. The Court further held that the lower court should have considered the appellant's prospects for rehabilitation and the potential for the sentence to contribute to his rehabilitation. The sentence was quashed, and the matter was remitted to the lower court for resentencing.

The High Court did not impose a specific sentence but directed that the lower court reconsider the appellant's sentence in light of the Court's findings. The Court emphasised the importance of proportionality and individual circumstances in sentencing and highlighted the need for sentencing judges to consider the potential for a sentence to contribute to the rehabilitation of the offender. The Court also noted that the lower court should have considered the appellant's prospects for rehabilitation and the potential for the sentence to contribute to his rehabilitation.

Orders