R v Smith

Case [2004] WASCA 44


R -v- SMITH [2004] WASCA 44



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2004] WASCA 44
COURT OF CRIMINAL APPEAL
Case No:CCA:134/20032 DECEMBER 2003
Coram:WHEELER J
MCLURE J
WALLWORK AJ
16/03/04
13Judgment 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
HEARD : 2 DECEMBER 2003 DELIVERED : 16 MARCH 2004 FILE NO/S : CCA 134 of 2003 BETWEEN : THE QUEEN
    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…

Continue reading R v Smith

Sign in free to access the full text

Details
AGLC
R v Smith [2004] WASCA 44
Case
[2004] WASCA 44
Decision Date

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.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.