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Smith v R

Smith v R

Case [2011] NSWCCA 209 9 September 2011

Criminal Liability

Sentencing

Motive

Special Circumstances

Plea of Guilty

Adequacy of Sentence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dwayne William SMITH v R [2011] NSWCCA 209
Hearing dates: 21 April 2011
Decision date: 09 September 2011
Jurisdiction: Common Law - Criminal
Before: Basten JA at [1], RS Hulme J at [2] & Hidden J at [3]
Decision:
Leave to appeal granted, appeal allowed, sentence in District Court quashed. Taking into account the offence on the Form 1, applicant re-sentenced to a non-parole period of 3 years, commencing on 17 December 2009 and expiring on 16 December 2012, and a balance of term of 1 year and 3 months, commencing on 17 December 2012 and expiring on 16 March 2014.

Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - break and enter with intent to commit serious indictable offence in circumstances of special aggravation - common assault on Form 1 - applicant motivated by revenge for offensive treatment of his mother - whether sentencing judge should have found special circumstances - adequacy of discount for plea of guilty - whether motive properly taken into account - sentence reduced
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Bou-Antoun v Regina [2008] NSWCCA 1
R v Simpson [2001] NSWCCA 534, 53 NSWLR 704
R v Newman and Simpson [2004] NSWCCA 102, 145 A Crim R 361
R v Borkowski [2009] NSWCCA 102, 195 A Crim R 1
R v Swan [2006] NSWCCA 47
R v Craddock [2004] VSC 397
Category: Principal judgment
Parties: Dwayne William Smith (applicant)
Regina (respondent)
Representation: Counsel
W P Lowe (applicant)
J Pickering (respondent)
Solicitors
M Rumore (applicant)
S Kavanagh - Solicitor for Public Prosecutions (respondent)

File Number(s): 2009/9222
Decision under appeal

Date of Decision:

2010-02-19 00:00:00

Before:

Colefax SC DCJ

File Number(s):

2009/9222

Judgment

BASTEN JA: I agree with Hidden J.

RS HULME J: I agree with Hidden J.

HIDDEN J: The applicant, Dwayne William Smith, pleaded guilty in the District Court to a charge of break and enter with intent to commit a serious indictable offence in circumstances of special aggravation, an offence under s 113(3) of the Crimes Act 1900 which carries a maximum sentence of 20 years imprisonment. He also asked the sentencing judge to take into account on a Form 1 an offence of common assault. He was sentenced, in round figures, to imprisonment for 6 years and 9 months with a non-parole period of 5 years, commencing on 17 December 2009, when he was taken into custody at the conclusion of the proceedings on sentence.

In fact, the sentence imposed was imprisonment for 6 years, 9 months and 18 days with a non-parole period of 5 years, 1 month and 5 days. It would seem that that somewhat unusual head sentence was the result of his Honour's applying to a starting point of 8 years the discount of 15% which he allowed for the applicant's plea of guilty. The equally unusual non-parole period was the result of the application…

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: Dwayne William Smith v The Queen [2011] NSWCCA 209
Case: [2011] NSWCCA 209
Decision Date: 09 September 2011

CaseChat Overview and Summary

The matter of Smith v R was before the High Court of Australia. The applicant, Smith, sought leave to appeal against the sentence imposed for a break and enter with intent to commit a serious indictable offence, specifically aggravated by the circumstances of special aggravation, namely a common assault on a Form 1. The underlying offence involved Smith breaking into a property driven by revenge for his mother's offensive treatment. The legal issues before the Court were whether the sentencing judge should have found special circumstances, the adequacy of the discount for Smith's plea of guilty, and whether his motive was properly taken into account.

The Court considered whether the sentencing judge should have found special circumstances in light of Smith's motive for revenge. The Court also examined whether the discount for the plea of guilty was adequate and whether the sentencing judge properly considered Smith's motive in determining the sentence. The Court held that the sentencing judge did not err in failing to find special circumstances and that the discount for the plea of guilty was appropriate. However, the Court found that the sentencing judge did not adequately consider Smith's motive in determining the sentence, which led to an overestimation of the appropriate penalty. Consequently, the Court concluded that the sentence should be reduced.

The Court granted Smith leave to appeal and ordered that the sentence be reduced. The Court found that the sentencing judge's failure to adequately consider Smith's motive led to an overestimation of the appropriate penalty. The Court did not specify the exact reduction but directed the lower court to re-evaluate the sentence, taking into account the proper weight of the motive. The Court's decision highlighted the importance of considering all relevant factors in sentencing, including the motive behind the crime, to ensure a just and proportionate outcome.

Orders