R v Smith (a pseudonym) - [2024] NSWDC 103

District Court

New South Wales

Medium Neutral Citation: R v Smith (a pseudonym) [2024] NSWDC 103
Hearing dates: 31 January 2024
Date of orders: 31 January 2024
Decision date: 31 January 2024
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate imprisonment sentence of 6 years and 6 months with a non-parole period of 4 years and 2 months

Catchwords:
CRIME — Sexual offences — Aggravated sexual assault — Victim under authority
CRIME — Domestic violence — “Domestic violence offence”
SENTENCING — Aggravating factors — Familial relationship — Breach of trust
SENTENCING — Mitigating factors — Prior good character — Treated as having no record of previous convictions — Plea of guilty — Remorse— Low risk of re-offending
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Form 1 offences — Objective seriousness
SENTENCING — Sentencing procedure — Instinctive synthesis
SENTENCING — Subjective considerations on sentence — Mental Health — Alcohol use —Intoxication — Special circumstances

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149
Weininger v The Queen (2003) 212 CLR 629

Category: Sentence
Parties: Alex Smith (a pseudonym) (offender)
Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
S Dayeian (for the offender)
Solicitors:
Legal Aid (NSW) (for the offender)
C Buckthought solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2022/285308
Publication restriction: Pursuant to s15A Children (Criminal Proceedings) Act 1987 (NSW) and s 578A Crimes Act 1900 (NSW), there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of a complainant. Identifying information has been removed from this version of the judgment to comply with the statutes. Pseudonyms have been used.

JUDGMENT – ex tEMPORE REVISED

Introduction

Alex Smith (a pseudonym) was born in Chile in September 1970. He migrated to Australia, where some of his family was already established. He is married and he has a daughter, Ashley (a pseudonym). In 2009, the offender and Ashley’s mother separated. The offender returned to Chile for a period, but his family maintained contact. In February 2022 he returned to Australia and he and his daughter ‘caught up’. They would go out together. At about that time he was living in southern Wollongong. His daughter would visit him. On one earlier occasion she stayed overnight. She slept in the same bed as her father.

Agreed Facts

On 22 September 2022, the offender’s birthday, his daughter, then aged 17, came over. She was intending to stay. They had dinner and drank wine. Some cannabis was smoked. More alcohol consumed, from her birthday present; a bottle of whisky. They talked. Part of the…

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 (a pseudonym)

Details

AGLC: R v Smith (a pseudonym) [2024] NSWDC 103
Case: [2024] NSWDC 103
Decision Date: 31 January 2024

CaseChat Overview and Summary

The case of R v Smith, pseudonymously named, was heard in a court of criminal jurisdiction. Smith was charged with aggravated sexual assault against a victim who was under his authority. Additionally, the offence was categorised as a domestic violence offence under the relevant legislation. The case concerned the sentencing of Smith, who had pleaded guilty to the charges.

The legal issues before the court were the appropriate sentence to impose on Smith, taking into account both aggravating and mitigating factors. The court considered the familial relationship between the offender and the victim, the breach of trust, the objective seriousness of the offence, and the risk of re-offending. Mitigating factors such as Smith's prior good character, the plea of guilty, his remorse, and low risk of reoffending were also examined. The court was required to balance these considerations in accordance with the sentencing principles and objectives of the relevant legislation.

The court found that the offence was of high objective seriousness due to the nature of the assault and the victim's vulnerability. However, it also recognised Smith's remorse, plea of guilty, and low risk of reoffending as mitigating factors. The court determined an aggregate imprisonment sentence of 6 years and 6 months, with a non-parole period of 4 years and 2 months. This sentence reflected the seriousness of the offence, the breach of trust, and the mitigating factors present in the case.

The court's decision was made using the instinctive synthesis approach, carefully considering all relevant factors. The final orders of the court were that Smith was to serve an aggregate imprisonment sentence of 6 years and 6 months, with a non-parole period of 4 years and 2 months.

Orders

Orders of the court

Aggregate imprisonment sentence of 6 years and 6 months with a non-parole period of 4 years and 2 months

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	R v Smith (a pseudonym) [2024] NSWDC 103
Hearing dates:	31 January 2024
Date of orders:	31 January 2024
Decision date:	31 January 2024
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate imprisonment sentence of 6 years and 6 months with a non-parole period of 4 years and 2 months
Catchwords:	CRIME — Sexual offences — Aggravated sexual assault — Victim under authority CRIME — Domestic violence — “Domestic violence offence” SENTENCING — Aggravating factors — Familial relationship — Breach of trust SENTENCING — Mitigating factors — Prior good character — Treated as having no record of previous convictions — Plea of guilty — Remorse— Low risk of re-offending SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Form 1 offences — Objective seriousness SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Mental Health — Alcohol use —Intoxication — Special circumstances
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149 Weininger v The Queen (2003) 212 CLR 629
Category:	Sentence
Parties:	Alex Smith (a pseudonym) (offender) Public Prosecutions (NSW) (Crown)
Representation:	Counsel: S Dayeian (for the offender) Solicitors: Legal Aid (NSW) (for the offender) C Buckthought solicitor for Public Prosecutions (NSW) (Crown)
File Number(s):	2022/285308
Publication restriction:	Pursuant to s15A Children (Criminal Proceedings) Act 1987 (NSW) and s 578A Crimes Act 1900 (NSW), there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of a complainant. Identifying information has been removed from this version of the judgment to comply with the statutes. Pseudonyms have been used.