R v Smith
[2000] NSWCCA 178
•1 May 2000
NEW SOUTH WALES CRIMINAL COURT OF APPEAL
CITATION: R v SMITH [2000] NSWCCA 178
FILE NUMBER(S):
60590/99
HEARING DATE(S): 1 May 2000
JUDGMENT DATE: 01/05/2000
PARTIES:
Samuel William SMITH
JUDGMENT OF: Hulme J Carruthers AJ
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 99/21/1006; 99/21/1007; 99/21/1105
LOWER COURT JUDICIAL OFFICER: Tupman DCJ
COUNSEL:
Crown: M Grogan
Appellant: in person
SOLICITORS:
Crown: SE O'Connor
Appellant: in person
CATCHWORDS:
LEGISLATION CITED:
DECISION:
Leave to appeal granted
Appeal dismissed
JUDGMENT:
- 4 -
IN THE COURT OF
CRIMINAL APPEALNo: 60590/99
HULME J
CARRUTHERS AJMonday 1 May 2000
REGINA -v- Samuel William SMITH
JUDGMENT
1 HULME J: In this matter the Court is able to give its decision now. It has reached the conclusion that the appeal should be dismissed and the Court is of the unanimous opinion that the appeal does not raise any question of general principle. Pursuant to section 21A of the Criminal Appeal Act 1912 the Court's reasons, in short form, are as follows.
2 On 23 September 1999 this applicant for leave to appeal was sentenced by Judge Tupman in respect of a number of offences. The dates, the offences and the penalties imposed were as follows.
DATE OFFENCE SENTENCE
8.7.98 Robbery while armed Two years fixed
with an offensive term commencingweapon, viz a screw 6.9.98 and expiring
driver 5.9.00
30.7.98 Robbery whilst armed Two years fixed
with an offensive term commencing
weapon, viz a screw driver 6.9.98 and expiring
5.9.00
30.7.98 Stealing a motor One year fixed term
vehicle commencing 6.9.98
expiring 5.9.999.4.99 Assault with intent Two years
to rob while armed minimum term
with a dangerous 6.9.00 expiring
weapon viz a replica 5.9.02 plus
or toy pistol additional term twoyears commencing
6.9.02 expiring
5.9.04.
3 These offences carry maximum periods of imprisonment of twenty years, twenty years, ten years and twenty-five years respectively.
4 In respect of the fourth offence her Honour was asked to take into account a series of offences contained in three Forms One. These included driving in a manner dangerous to the public on 26 August 1998, a series of offences on 6 September 1998 of driving in a manner dangerous to the public, driving whilst disqualified and negligent driving and stealing a motor vehicle on 1 September 1998.
5 Her Honour also made orders relating to the disqualification of the applicant from holding a driving licence.
6 In arriving at the sentences which she did, her Honour made reference to the decision of the High Court in R v Pearce and to the decision of this Court in the matter of R v Henry & Ors. Addressing the principles for which Pearce's case stands as authority, her Honour indicated that, considered individually, she regarded the first two offences as meriting sentences each of two and a half years minimum and two and a half years additional term and the fourth offence as meriting a total term of six years of three years with the minimum term. Applying the principle of totality, her Honour arrived at the sentences which I have detailed above.
7 Her Honour recorded that the sentences she imposed were less than they otherwise would have been on account of pleas of guilty albeit in the case of the offences occurring in July 1998 in the face of a very strong Crown case and in the case of a fourth offence, a relatively strong Crown case. Her Honour also noted that the applicant was only a little over 18 at the time of the commission of the offences and that he had had a hard life without the benefit of a stable and supportive family. He had been sentenced to periods in juvenile institutions from about the time he was 10 or 11 and had an early involvement with alcohol and illegal drugs and these provided some explanation for his offending.
8 The applicant's incarceration since 6 September 1998 in respect of the subject charges was his first in an adult gaol. The applicant had previously been before courts on at least six prior occasions for a series of offences including assault, driving an unregistered and uninsured vehicle, possession of a prohibited weapon, entering enclosed lands without lawful excuse and taking a conveyance without consent. He had been sentenced to control orders on a number of occasions.
9 In R v Henry this Court stated as a guideline that an appropriate sentence for offenders and offences having the characteristics there set out was a sentence of between four and five years imprisonment (total term). I do not find it necessary to state the details of them but the three armed robberies committed by the applicant answer, or are not less serious than, the characterisation of offences which the Court in R v Henry used by way of example. The applicant's criminal history puts him into a more serious category than the typical offender of which the Court was talking in that case.
It is true, as the applicant has said during the course of submissions he put to the Court, that the decision in R v Henry was handed down after the commission of the offences for which he was sentenced. Nevertheless as the decisions referred to in that case made clear, the guidelines set forth in R v Henry did not amount to a higher level of sentencing than had often, although by no means universally, been adopted previously and in particular, at the time of the applicant's commission of offences.
Given the applicant's three offences of armed robbery, together with the other offences for which he fell to be sentenced or which were being taken into account, even if one accepts the bottom of the range of sentences referred to in R v Henry, a sentence of six years with a minimum term of four years cannot be regarded as in any way manifestly excessive.
While it is not the only factor, the commission of three offences of armed robbery is substantially more criminal than the commission of one.
Having regard to the duration of the sentence imposed, leave to appeal should be given but as I have said, the appeal dismissed. Those are the orders of the Court.
LAST UPDATED: 26/05/2000
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