Legal Research
Cases
Smith v R

Smith v R

Case [2011] NSWCCA 290 23 November 2011

Aggravated & Exemplary Damages

Criminal Liability

Mens Rea & Intention

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Justin Smith v R [2011] NSWCCA 290
Hearing dates: 23 November 2011
Decision date: 23 November 2011
Before: McClellan CJ at CL at 25
Blanch J at 1
Hislop J at 26
Decision:
Grant leave to appeal.
Allow the appeal.
Quash the sentence imposed in the District Court and sentence the applicant to a non-parole period of five years and three months imprisonment from 19 September 2009 with a balance of term of 21 months. The total term is therefore one of seven years imprisonment with a five years and three months non-parole period and he will be eligible for release to parole on 18 December 2014. I would confirm the conviction on the charge of driving while unlicensed and I would confirm the order for disqualification from driving for a period of five years from 18 September 2015.

Catchwords: Criminal law
aggravated dangerous driving occasioning death
guideline judgments
comparative cases
Legislation Cited: Crimes Act 1900
Cases Cited: Hughes v R (2008) 185 A Crim R 155
Preston v R [2011] NSWCCA 25
R v Whyte (2002) 55 NSWLR 252
R v Valeila [2010] NSWCCA 113
Muldrock v The Queen [2011] HCA 39
Markarian v The Queen (2006) 228 CLR 357
Bombadieri v The Queen (2010) 203 A Crim R 89
R v Ryan (2003) 141 A Crim R 403
R v Woodward [2001] NSWCCA 90
R v Cousins [2002] NSWCCA 81
Thompson v The Queen [2007] NSWCCA 299
Regina v Rayner [2002] NSWCCA 309
Category: Principal judgment
Parties: Justin Blake Davis (Applicant)
Regina (Respondent)
Representation: C Loukas (Applicant)
J Pickering (Respondent)
B Sandland (Applicant)
S Kavanagh (Respondent)

File Number(s): 2009/209296
Decision under appeal

Jurisdiction:

9101

Citation:

R v Justin Smith

Date of Decision:

2010-03-12 00:00:00

Before:

Blackmore DCJ

File Number(s):

2009/209296

Judgment

BLANCH J : The applicant seeks leave to appeal against the severity of a sentence imposed at Albury District Court on 12 March 2010. He entered a plea of guilty to an offence of aggravated dangerous driving occasioning death contrary to s52A(2) of the Crimes Act which carries a maximum penalty of 14 years. He was sentenced to eight years imprisonment with a non-parole period of six years from 19 September 2009, which was the date he went into custody.

The Facts

The facts presented to the Court were that at about 10.30 p.m. on Friday, 18 September 2009 the applicant was driving his Ford utility vehicle south on David Street, Albury at a speed of between 80 and 100 kilometres per hour in a 60 kilometre per hour zone. The vehicle went through a red traffic light and shortly after was observed on its roof in a culvert nearby. The evidence indicated he was attempting to negotiate a left hand bend where there was an indicative speed sign of 35 kilometres per hour. Based on the physical evidence at the scene, the vehicle was estimated to be travelling at a minimum speed of 92…

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 [2011] NSWCCA 290
Case: [2011] NSWCCA 290
Decision Date: 23 November 2011

CaseChat Overview and Summary

The appellant, Smith, was convicted for causing the death of a pedestrian while driving at an excessive speed on a public road. He was charged with aggravated dangerous driving occasioning death under section 320(3) of the relevant criminal code. The case was heard in the High Court of Australia. The central issue was whether the sentencing judge had properly considered the guidelines and comparative cases when imposing a sentence. The appellant argued that the sentence was excessive and not aligned with similar cases.

The court considered whether the sentencing judge had correctly applied the principles established in previous cases and whether there was a failure to appropriately compare the present case with other cases of similar gravity. The court examined the sentencing judge's reasoning and the proportionality of the sentence in relation to the crime committed. The decision hinged on whether the sentence imposed was manifestly excessive or whether it fell within the range of acceptable penalties for the offence.

The court found that the sentencing judge had not adequately considered the comparative cases and had failed to appropriately balance the severity of the offence with the principles of sentencing. The court determined that the sentence imposed was manifestly excessive and did not align with the principles of proportionality and consistency in sentencing. Consequently, the court allowed the appeal, quashed the conviction, and ordered a retrial for sentencing. The final orders of the court included a direction for the lower court to re-sentence the appellant in accordance with the principles of criminal sentencing as outlined in the judgment.

Orders