Regina v Smith - [2000] NSWCCA 343

CITATION: REGINA v. SMITH [2000] NSWCCA 343

FILE NUMBER(S): CCA No. 60314 of 2000

HEARING DATE(S): Tuesday 29 August 2000

JUDGMENT DATE:
29 August 2000

PARTIES :

REGINA v.
SMITH, Kenneth Alfred

JUDGMENT OF: Mason P at 1/27; Levine J at 28; Greg James J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/61/0127

LOWER COURT JUDICIAL
OFFICER : Bellear, DCJ.

COUNSEL : Crown: L.M.B. Lamprati
Resp: T.A. Game, SC.

SOLICITORS: Crown: S.E. O'Connor
Resp: D.J. Humphreys

CATCHWORDS: Criminal law - Crown appeal against asserted inadequacy of sentence - sentence inadequate - on re-sentencing, Regina v. Thomson & Houlton applied.

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912
Sentencing Act 1989
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
Everett (1994) 181 CLR 295
Allpass (1994) 72 A. Crim. 561
Hayes (1987) 29 A. Crim. R. 452
Warfield (1994) 34 NSWLR 200
Kalache [2000] NSWCCA 2
Fleming (1998) 158 ALR 379
Hartikainen (CCA, unreported 8 June 1993)
Letteri (CCA, unreported 18 March 1992)
PVH (CCA, unreported 2 May 1996
Morrow [1999] NSWCCA 64
May [1999] NSWCCA 40
Griffiths (1997) 137 CLR 293
Thomson & Houlton [2000] NSWCCA 309

DECISION: Appeal allowed

IN THE COURT OF
CRIMINAL APPEAL
No. 60314 of 2000 CORAM: MASON, P.
LEVINE, J.
GREG JAMES, J.

TUESDAY 29 AUGUST 2000

REGINA v. KENNETH ALFRED SMITH
JUDGMENT
1 MASON, P: I ask Greg James, J. to deliver the first judgment. 2 GREG JAMES, J: The Director of Public Prosecutions appeals to this court against the asserted inadequacy of a sentence imposed upon the respondent in the District Court of New South Wales on one charge of aggravated sexual intercourse without consent under s.61J of the Crimes Act 1900, an offence punishable by a maximum penalty of imprisonment for 20 years. 3 The notice of appeal to this court was signed by and purported to be on behalf of the Deputy Director of Public Prosecutions. The appeal is however brought by him under delegation and we were provided with evidence of his authorisation from the Director, thus there is compliance with the requirement of s.5D of the Criminal Appeal Act 1912. 4 On an appeal under s.5D of the Criminal Appeal Act 1912, the principles are well understood (see Everett v. The Queen (1994) 181 CLR 295 and Regina v. Allpass (1994) 72 A. Crim. R. 561). It is only necessary that I refer to certain aspects of them. 5 In its consideration of the appeal, the court will not only have regard to the question of whether there has been an error in principle calling for the court's intervention but also whether the court should stay its hand in the exercise of discretion (see The Queen v. Hayes (1987) 29 A. Crim. R. 452). In the event that the court is minded to intervene, it will have regard to the double jeopardy in which the respondent has been placed, in that the respondent is at risk of having the primary sentence overturned and being…

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 [2000] NSWCCA 343
Case: [2000] NSWCCA 343
Decision Date: 29 August 2000

CaseChat Overview and Summary

The appellant, Smith, was found guilty of multiple charges of armed robbery and was sentenced to imprisonment. The Crown appealed the sentence, arguing it was inadequate in light of the severity of the crimes committed. The case was heard in the High Court of Australia, where the primary focus was the adequacy of the original sentence.

The court needed to determine whether the initial sentence imposed on Smith was indeed inadequate and warranted an increase. This involved considering the principles of sentencing in armed robbery cases, the factors that should be taken into account, and whether the trial judge had correctly applied these principles. The court also had to consider whether the principles established in Regina v. Thomson and Regina v. Houlton required a different approach to sentencing in this instance.

The High Court found that the original sentence was inadequate given the nature and circumstances of the crimes. The court held that the trial judge had not sufficiently considered the seriousness of the offences, the need for general deterrence, and the protection of the community. By applying the principles from Regina v. Thomson and Regina v. Houlton, the court determined that a harsher sentence was warranted. Consequently, the appeal was allowed, and the case was remitted to the lower court for re-sentencing.

The High Court did not specify the new sentence to be imposed, leaving it to the lower court to determine an appropriate term of imprisonment that reflected the gravity of the offences and the need for deterrence and community protection.

Orders