Regina v Smith - [2006] NSWCCA 353

CITATION: Regina v Smith [2006] NSWCCA 353

HEARING DATE(S): 20/10/06

JUDGMENT DATE:
10 November 2006

JUDGMENT OF: Hidden J at 1; Bell J at 2; Johnson J at 35

DECISION: 1. Allow the appeal; 2. Confirm the sentence on count 1; 3. Confirm the sentences on counts 2 to 5 but vary their dates of commencement as set out in order 5; 4. Quash the sentence on count 6 and, in lieu thereof, the respondent is sentenced to a non-parole period of three years and a balance of term of two years each to commence as specified in order 5; 5. The dates of commencement of the sentences are as follows; Count 1 – fixed term of 18 months’ imprisonment to date from 20 June 2006 and to expire on 19 December 2007; Count 3 – fixed term of two years’ and nine months’ imprisonment to date from 20 December 2006. This sentence will expire on 19 September 2009; Count 4 – a fixed term of two years’ and nine months’ imprisonment to date from 20 June 2007 and to expire on 19 March 2010; Count 5 – a fixed term of 18 months’ imprisonment to commence on 20 June 2007. This sentence will expire on 19 December 2008; Count 6 – a non-parole period of three years to date from 20 October 2007 and to expire on 19 October 2010 and a balance of term of two years to expire on 19 October 2012; Count 2 – non-parole period of three years and three months to date from 20 March 2008. The non-parole period will expire on 19 June 2011. Specify a balance of term of two years and nine months. This sentence will expire on 19 March 2014.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Ainger v Coffs Harbour City Council [2005] NSWCA 424
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
Dinsdale v R (2000) 202 CLR 321
Johnson v R [2004] HCA 15; 78 ALJR 616
Markarian v R [2005] HCA 25; 79 ALJR 1048
Pearce v R (1998) 194 CLR 610
R v Allpass (1993) 72 A Crim R 561
R v Holyoak (1995) 82 A Crim R 502
R v Way [2004] NSWCCA 131; 60 NSWLR 168

PARTIES: Regina (Appellant)
Michael Robert Smith (Respondent)

FILE NUMBER(S): CCA 2006/1575

COUNSEL: J Girdham (Appellant)
CB Craigie SC (Respondent)

SOLICITORS: S Kavanagh (Appellant)
SE O'Connor (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/51/0195

LOWER COURT JUDICIAL OFFICER: Coorey DCJ

2006/1575 CCAP

HIDDEN J
BELL J
JOHNSON J
Friday 10 November 2006

REGINA v Michael Robert SMITH

Judgment

1 HIDDEN J: I agree with the orders proposed by Bell J and with her Honour’s reasons.

2 BELL J: This is an appeal brought by the Director of Public Prosecutions against the claimed inadequacy of sentences imposed on the respondent in 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 Regina v Smith

Details

AGLC: Regina v Smith [2006] NSWCCA 353
Case: [2006] NSWCCA 353
Decision Date: 10 November 2006

CaseChat Overview and Summary

The case of Regina v Smith involved the defendant, Smith, who pleaded guilty to six counts of sexual offences. The matter was heard in the District Court of New South Wales. The primary issue before the court was whether the sentences imposed on Smith were adequate, considering the gravity of the offences. The defendant's legal team argued that the sentences, which were to be served concurrently, were inadequate and did not adequately reflect the seriousness of the crimes committed.

The court was required to determine whether the sentences imposed were commensurate with the nature and circumstances of the offences. The Crimes Act 1900 provides the framework for sentencing in New South Wales, and the court had to consider the principles of proportionality and deterrence in its decision. The court also needed to consider the cumulative effect of the sentences and whether the non-parole periods were appropriate. The defendant's legal team argued that the wholly subsumed sentences did not sufficiently reflect the gravity of the individual offences.

The court found that the sentences imposed on Smith were inadequate in several respects. The non-parole periods were considered too short, and the wholly subsumed sentences did not adequately reflect the individual offences. The court concluded that the sentences did not serve the purposes of denunciation, deterrence, and rehabilitation effectively. Consequently, the court increased the sentences and adjusted the non-parole periods to better reflect the seriousness of the offences. The revised sentences were to be served concurrently, but with increased non-parole periods to ensure they were commensurate with the crimes committed.

Orders