Legal Research
Cases
Smith v R

Smith v R

Case [2013] NSWCCA 209 9 September 2013

Aggravated & Exemplary Damages

Type to search within this case.

Court of Criminal Appeal

New South Wales

Case Title: Andrew Smith v R

Medium Neutral Citation: [2013] NSWCCA 209

Hearing Date(s): 8 August 2013

Decision Date: 09 September 2013

Before: Leeming JA at [1]
R A Hulme J at [2]
Button J at [73]

Decision:
Leave to appeal granted. Appeal dismissed.

Catchwords: CRIMINAL APPEAL - sentence appeal - aggravated break and enter and commit serious indictable offence of intimidation - context of domestic violence considered an aggravating feature on sentence - no double counting despite offence of intimidation arising from certain features of domestic relationship - lack of planning or premeditation not significant mitigating feature - significance of committing offence while on conditional liberty - sentence not manifestly excessive

Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Domestic and Personal) Violence Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited: Bolt v R [2012] NSWCCA 50
Hili v The Queen [2010] HCA 45; 242 CLR 520
House v The King (1936) 55 CLR 499
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mulato v R [2006] NSWCCA 282
Palijan v R [2010] NSWCCA 142
R v Ball [2013] NSWCCA 126
R v Eckermann [2013] NSWCCA 188
R v Hamid [2006] NSWCCA 302; 164 A Crim R 179
R v Henry (1999) 46 NSWLR 346
Shaw v R [2008] NSWCCA 58
Waters v R [2007] NSWCCA 219
Zreika v R [2012] NSWCCA 44
ZZ v R [2013] NSWCCA 83

Category: Principal judgment

Parties: Andrew Smith (Applicant)
Regina (Respondent)

Representation

- Counsel: Counsel:
Ms H Cox (Applicant)
Ms S Dowling (Crown)

- Solicitors: Solicitors:
Aboriginal Legal Service (NSW/ACT) Ltd
Solicitor for Public Prosecutions

File Number(s): 2011/399231

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Marien SC DCJ

- Date of Decision: 12 September 2012

- Court File Number(s): 2011/399231

JUDGMENT

LEEMING JA: I agree with R A Hulme J.
R A HULME J: Andrew Smith ("the applicant") seeks leave to appeal against the sentence imposed by his Honour Judge Marien SC in the District Court at Griffith on 12 September 2012.
The applicant pleaded guilty in the Local Court to one count of aggravated breaking and entering a dwelling house and committing a serious indictable offence, namely, intimidation. The circumstance of aggravation pleaded was that he knew that persons were present within the dwelling house.
The offence was in contravention of s 112(2) of the Crimes Act 1900 (NSW) which carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 5 years under Div 1A Pt 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The maximum penalty for an offence of intimidation under s 13(1) of the Crimes (Domestic and Personal) Violence Act 2007 (NSW) is imprisonment for 5 years and/or a fine of 50 penalty units.
His Honour sentenced the applicant to imprisonment for 4 years 2 months comprised of a non-parole period of 2 years 9 months commencing 10 December 2011 and expiring 9 September 2014,…

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 Smith v R

Details

AGLC: Smith v R [2013] NSWCCA 209
Case: [2013] NSWCCA 209
Decision Date: 09 September 2013

CaseChat Overview and Summary

In Smith v R, the High Court of Australia reviewed an appeal against a sentence imposed for aggravated break and enter and the commission of a serious indictable offence of intimidation. The appellant was convicted of these offences, which occurred in the context of a domestic violence situation. The appeal focused on whether the sentence was manifestly excessive, particularly in light of the domestic violence context being considered as an aggravating factor.

The central legal issue was whether the court had appropriately considered the interplay between the domestic violence context and the specific offence of intimidation. The appellant argued that the trial judge had effectively double-counted the domestic violence element by treating it as both a context and a specific aggravating feature. Additionally, the appellant contended that the lack of planning or premeditation should have been a significant mitigating factor. The respondent, however, maintained that the trial judge had correctly assessed the totality of the circumstances and that the sentence was proportionate and just.

The High Court held that the trial judge had not erred in considering the domestic violence context as an aggravating feature of the offence of intimidation, as it was not a double counting of the same factor. The court found that the domestic violence context provided a backdrop that exacerbated the seriousness of the intimidation. Furthermore, the court held that the lack of planning or premeditation, while a mitigating factor, did not significantly reduce the culpability of the appellant. The court also noted the importance of the appellant committing the offence while on conditional liberty, which it deemed an additional aggravating factor. Ultimately, the court concluded that the sentence was not manifestly excessive, affirming the trial judge's decision.

Orders