R -v- SMITH [2004] WASCA 44
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 44 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:134/2003 | 2 DECEMBER 2003 | |
| Coram: | WHEELER J MCLURE J WALLWORK AJ | 16/03/04 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | THE QUEEN NIGEL JOSEPH SMITH |
Catchwords: | Criminal law and procedure Crown appeals Sexual assault Breach of trust, what constitutes Aggravating factors |
Legislation: | Criminal Code, s 323, s 325 Sentencing Act, s 6(4) |
Case References: | Chan v The Queen (1989) 38 A Crim R 337 Coulter v The Queen, unreported; CCA SCt of WA; Library No 960507; 4 September 1996 Dinsdale v The Queen (2000) 202 CLR 321 James v The Queen (1985) 14 A Crim R 364 Ling v The Queen [2000] WASCA 129 Lowndes v The Queen (1999) 195 CLR 665 Powell v The Queen, unreported; CCA SCt of WA; Library No 8928; 21 June 1991 R v Clarke [1996] 2 VR 520 R v Major [2001] WASCA 46 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- SMITH [2004] WASCA 44 CORAM : WHEELER J
- MCLURE J
WALLWORK AJ
- Appellant
AND
NIGEL JOSEPH SMITH
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : VIOL DCJ
File Number : IND 514 of 2002
Catchwords:
Criminal law and procedure - Crown appeals - Sexual assault - Breach of trust, what constitutes - Aggravating factors
(Page 2)
Legislation:
Criminal Code, s 323, s 325
Sentencing Act, s 6(4)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr K P Bates & Ms K E Ellson
Respondent : Mr M L Tudori
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Michael Tudori & Associates
Case(s) referred to in judgment(s):
Chan v The Queen (1989) 38 A Crim R 337
Coulter v The Queen, unreported; CCA SCt of WA; Library No 960507; 4 September 1996
Dinsdale v The Queen (2000) 202 CLR 321
James v The Queen (1985) 14 A Crim R 364
Ling v The Queen [2000] WASCA 129
Lowndes v The Queen (1999) 195 CLR 665
Powell v The Queen, unreported; CCA SCt of WA; Library No 8928; 21 June 1991
R v Clarke [1996] 2 VR 520
R v Major [2001] WASCA 46
Case(s) also cited:
Nil
(Page 3)
1 WHEELER J: I have had the advantage of reading in draft the reasons for decision of McLure J. I agree with those reasons. I have only a few brief observations which I would wish to add.
2 In looking at the matters which it suggests made the offences particularly serious, the Crown refers to a number of factors. In my view, the Crown's submission misrepresents or overstates many of them. I turn briefly…
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CaseChat Overview and Summary
In the case of R v Smith, the appellant, Smith, was convicted of sexual assault involving a breach of trust. The case was brought to the appellate court following an appeal against both the conviction and the sentence. Smith's conviction arose from an incident in which he sexually assaulted a person under his care, leading to a prosecution for breaching the trust inherent in their relationship. The Crown appealed against the sentence imposed by the trial court, arguing it was too lenient given the nature of the crime and the breach of trust involved.
The central legal issues before the appellate court were whether the trial judge correctly identified the aggravating factors present in the case and whether the sentence was manifestly inadequate. The Crown contended that the trial judge failed to appropriately weigh the aggravating factors, particularly the breach of trust, in determining the appropriate sentence. The appellant, Smith, argued that the sentence was just and appropriate, given the circumstances.
The appellate court found that the trial judge had indeed considered the aggravating factors, including the breach of trust, and had adequately justified the sentence imposed. The court held that the sentence was not manifestly inadequate and did not result in a miscarriage of justice. Consequently, the appeal was dismissed, and the original sentence was upheld. The court's decision emphasised the importance of judicial discretion in sentencing and the need for appellate courts to intervene only where there is a clear error in the exercise of that discretion.
The central legal issues before the appellate court were whether the trial judge correctly identified the aggravating factors present in the case and whether the sentence was manifestly inadequate. The Crown contended that the trial judge failed to appropriately weigh the aggravating factors, particularly the breach of trust, in determining the appropriate sentence. The appellant, Smith, argued that the sentence was just and appropriate, given the circumstances.
The appellate court found that the trial judge had indeed considered the aggravating factors, including the breach of trust, and had adequately justified the sentence imposed. The court held that the sentence was not manifestly inadequate and did not result in a miscarriage of justice. Consequently, the appeal was dismissed, and the original sentence was upheld. The court's decision emphasised the importance of judicial discretion in sentencing and the need for appellate courts to intervene only where there is a clear error in the exercise of that discretion.
Orders
Orders of the court
Appeal dismissed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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