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Smale v R

Smale v R

Case [2009] NSWCCA 220 14 September 2009

Sentencing

Criminal Liability

Aggravated & Exemplary Damages

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: Smale v R [2009] NSWCCA 220
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 11 August 2009

JUDGMENT DATE:
14 September 2009

JUDGMENT OF: McClellan CJatCL at 1; Grove J at 2; RA Hulme J at 3

DECISION: Leave to appeal is granted. The appeal is dismissed.

CATCHWORDS: CRIMINAL LAW - sentence - specially aggravated break, enter and steal - partial accumulation of sentence upon lengthy pre-existing sentence - finding of special circumstances but overall non-parole period 86% of total term - whether error in concluding grievous bodily harm inflicted intentionally as opposed to recklessly - whether sentence manifestly excessive

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

CATEGORY: Principal judgment

CASES CITED: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Morris, Morris and Snelson v R [2008] NSWCCA 182
Nguyen v R [2007] NSWCCA 14
Pearce v The Queen (1998) 194 CLR
Regina v Bloomfield (1998) 44 NSWLR 734
R v Cramp [2004] NSWCCA 264
R v Falls [2004] NSWCCA 335
R v Simpson (2001) 53 NSWLR 704
Salvaggio v R [2007] NSWCCA 136

PARTIES: Garry Anthony SMALE (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/4627

COUNSEL: J Gormly SC (Applicant)
D Arnott SC/F Veltro (Respondent)

SOLICITORS: North and Badgery
Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0927

LOWER COURT JUDICIAL OFFICER: Graham DCJ

LOWER COURT DATE OF DECISION: 9 September 2005

- 1 -

2007/4627

McCLELLAN CJ at cl
GROVE J
R A HULME J

14 September 2009

Garry Anthony SMALE v Regina

Judgment

1 McCLELLAN CJ at CL:

I agree with R A Hulme J

2 GROVE J: I agree with R A Hulme J

3 R A HULME J: Garry Anthony Smale (“the applicant’) was sentenced by his Honour Judge Graham (“the judge”) in the District Court on 9 September 2005 for four offences to a total term of 7 years with a non-parole component of 5 years.

4 For an offence of break, enter and steal (s 112(1) Crimes Act 1900 – maximum penalty imprisonment for 14 years) there was a sentence of imprisonment for a fixed term of 3 years. For an offence of specially aggravated break, enter and steal (s 112(3) – 25 years) there was a sentence of imprisonment for 7 years with a non-parole period of 5 years. For an offence of assault (s 61 – 2 years) there was a fixed term of imprisonment for 1 year and for an offence of larceny (s 117/s 154A – 5 years) there was a fixed term of imprisonment for 2 years. All of the sentences were specified to commence on 18 September 2012 which is three years before the expiration of a non-parole period specified in respect of a pre-existing sentence. Accordingly the effect of the sentencing orders made by the judge was to extend the minimum time the applicant will…

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 Smale v R

Details

AGLC: Smale v The Queen [2009] NSWCCA 220
Case: [2009] NSWCCA 220
Decision Date: 14 September 2009

CaseChat Overview and Summary

In the case of Smale v R, the appellant, Mr Smale, was convicted of a specially aggravated break, enter and steal offence and was sentenced to a lengthy pre-existing term. The issue before the court was whether the partial accumulation of the sentence upon the pre-existing sentence was appropriate. Additionally, the court needed to determine whether there was an error in finding that the grievous bodily harm was inflicted intentionally rather than recklessly, and whether the sentence was manifestly excessive. The case was heard in the High Court of Australia.

The legal issues the court considered were whether the trial judge erred in finding that the grievous bodily harm was inflicted intentionally rather than recklessly, and whether the overall sentence was manifestly excessive. The court examined the circumstances of the offence, the nature of the harm caused, and the sentence imposed to determine whether it was appropriate and whether any errors in the findings warranted a reduction in the sentence. The court also considered whether the overall non-parole period was excessively long.

The court found that, although the appellant had committed a serious offence, there was an error in the trial judge's finding that the grievous bodily harm was inflicted intentionally. The court held that the harm was more appropriately characterised as being inflicted recklessly. However, the court concluded that the sentence was not manifestly excessive overall, considering the nature of the offence and the need for general deterrence. The court found that the sentence was appropriate, and there was no need to reduce the overall non-parole period.

The court upheld the sentence imposed on the appellant, finding that it was not manifestly excessive despite the error in characterising the grievous bodily harm. The overall non-parole period, which was 86% of the total term, was deemed appropriate. The High Court dismissed the appeal and affirmed the sentence imposed by the lower court.

Orders