R v Smith - [2003] NSWCCA 353

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Smith [2003] NSWCCA 353

FILE NUMBER(S):
60264 of 2003

HEARING DATE(S): 24/11/03

JUDGMENT DATE: 24/11/2003

PARTIES:
Regina
v
Kenneth Alfred Smith

JUDGMENT OF: Meagher JA Kirby J Shaw J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/1185

LOWER COURT JUDICIAL OFFICER: Bellear DCJ

COUNSEL:
A: A Francis
R: G I O Rowling

SOLICITORS:
A: S O'Connor
R: C K Smith

CATCHWORDS:
SENTENCES: Inadequacy - attitude taken by Parliament; Accumulation of sentences - Previous sentence and current sentence; Principle of totality - Effect on applicant of accumulation of sentences; Special circumstances - Difference in allowance made in individual sentences and overall term; Direction of trial judge.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

DECISION:
Leave to appeal refused.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 60264 of 2003
MEAGHER JA
KIRBY J
SHAW J
Monday, 24 November 2003

Regina v Smith

Judgment

MEAGHER JA: The Court is in a position to give judgment. I shall give the first judgment.
This is an application for leave to appeal on behalf of Mr K A Smith, who was convicted before Bellear DCJ in the District Court at Dubbo on 20 December 2002 following a plea of guilty in respect of five offences presented upon indictment, namely, two counts of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 and three counts of aggravated sexual assault contrary to s 66A of the Crimes Act 1900. The case is a very serious one.
The details of the five counts to which I have referred are as follows: count 1, aggravated indecent assault committed between 1 November 1997 and 5 April 1998; count 2, aggravated sexual assault committed between 1 November 1997 and 5 April 1998; count 3, aggravated indecent assault committed between 24 March 1998 and 18 December 1998; count 4, aggravated sexual intercourse committed between 24 March 1998 and 18 December 1998; and count 5, aggravated sexual intercourse committed between 19 December 1998 and 20 April 1999.
In the case of these five counts, the sentences imposed by his Honour were as follows:
Count 1: Three years and six months to date from 29 July 2001;
Count 2: Seven years to date from 29 July 2002;
Count 3: Three years and six months to date from 29 July 2003;
Count 4: Seven years to date from 29 July 2003;
Count 5: Seven years to date from 29 July 2005.
There are various non-parole periods. The curiosity, which may be apparent when one considers the first count, which dates from 29 July 2001, seems to be explained by the fact that that is the date where his non-parole period on a previous sentence expires. Mr Smith was convicted also before Bellear DCJ and that conviction was affirmed in this court whereby he was sentenced to serve four years and six months commencing on 29 April 1999 with a non-parole period…

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 353
Case: [2003] NSWCCA 353
Decision Date: 24 November 2003

CaseChat Overview and Summary

The case of R v Smith involved the defendant, Smith, who was sentenced to a term of imprisonment for a series of criminal offences. Smith was convicted and sentenced to a cumulative term of imprisonment. He subsequently applied for a reduction in his sentence on the grounds that the cumulative term imposed by the court was disproportionately severe, and the trial judge had not properly considered the principle of totality. The case was heard in the Court of Appeal, which was required to determine the legality and fairness of the original sentence and whether the trial judge's direction regarding the principle of totality was appropriate.

The central legal issues the Court of Appeal needed to address were whether the cumulative sentence imposed was unjust, and whether the trial judge had correctly applied the principle of totality when imposing the sentence. The principle of totality refers to the need to consider the cumulative effect of multiple sentences imposed on a defendant, ensuring that the overall sentence is proportionate to the overall criminality. Smith argued that the trial judge had not adequately considered this principle, resulting in an unduly harsh cumulative sentence.

The Court of Appeal held that the trial judge had not erred in the application of the principle of totality. The court found that the trial judge had correctly assessed the individual sentences and had considered the overall criminality and culpability of the defendant. The court determined that the cumulative sentence was proportionate to the defendant's crimes, and there were no grounds for reducing the sentence. The Court of Appeal further held that the trial judge's direction to the jury was accurate and that there were no special circumstances that warranted a departure from the principle of totality.

The Court of Appeal dismissed Smith's appeal against his sentence, affirming that the trial judge had correctly applied the principle of totality and that the cumulative sentence was proportionate to the defendant's criminal conduct. The Court of Appeal did not make any orders altering the original sentence imposed on Smith.

Orders