Smith v R - [2009] NSWCCA 17

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Smith v R [2009] NSWCCA 17

FILE NUMBER(S):
2008/188

HEARING DATE(S):
10 February 2009

JUDGMENT DATE:
27 February 2009

PARTIES:
SMITH, William Roger
Regina

JUDGMENT OF:
McClellan CJatCL James J Adams J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/61/0091

LOWER COURT JUDICIAL OFFICER:
Woods ADCJ

LOWER COURT DATE OF DECISION:
13 November 2007

COUNSEL:
H L A Cox - Appellant
J A Girdham - Respondent

SOLICITORS:
S O'Connor (Legal Aid Commission)
S Kavanagh (Solicitor for Public Prosecutions

CATCHWORDS:
CRIMINAL LAW — Sentencing — aggravated breaking and entering and committing a serious indictable offence — erroneous assessment of level of objective seriousness — sentencing discretion impermissibly confined

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act
Crimes Act
Mental Health (Criminal Procedure) Act

CASES CITED:
Mulato v R [2006] NSWCCA 282
R v Way (2004) 60 NSWLR 168
Veen v The Queen (No 2) (1987-1988) 164 CLR 465 and 479
Vu v R [2006] NSWCCA 188

TEXTS CITED:

DECISION:
1. Leave to appeal against the sentence imposed on the applicant by Acting Judge Woods granted.
2. Appeal against sentence allowed.
3.Sentence imposed by Acting Judge Woods quashed and in lieu thereof the applicant be sentenced to a non-parole period of two and a half years commencing on 25 March 2007 and expiring on 24 September 2009 and a balance of the term of two and a half years.
4. The earliest date on which the applicant will be eligible for release on parole will be 24 September 2009.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/0188
McCLELLAN CJ at CL
JAMES J
ADAMS J
FRIDAY 27 FEBRUARY 2009

SMITH, William Roger v R

Judgment

McCLELLAN CJ at CL: I agree with James J.
JAMES J: William Roger Smith applied for leave to appeal against a sentence imposed on him in the District Court by his Honour Acting Judge Woods for an offence committed on 20 March 2007 of specially aggravated breaking and entering a dwelling house and committing a serious indictable offence therein, namely malicious wounding of a woman who I will refer to as “the victim”.

Prior to the sentence hearing Acting Judge Woods had conducted a hearing under s 11 of the Mental Health (Criminal Procedure) Act and had determined that the applicant was fit to be tried for the offence. After his Honour found that the applicant was fit to be tried, the applicant pleaded guilty to the offence.
The sentencing judge imposed a sentence of imprisonment consisting of a non-parole period of three years six months and a balance of the term of two years six months, making a total sentence of six years. The sentence was ordered to commence from 26 March 2007, the date on which the applicant had voluntarily attended a police station and been arrested and from which he had remained in custody until he was sentenced.
Specially aggravated breaking and entering and committing a serious indictable offence is an offence under s…

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 [2009] NSWCCA 17
Case: [2009] NSWCCA 17
Decision Date: 27 February 2009

CaseChat Overview and Summary

In the matter of Smith versus the Crown, the appellant, Smith, was convicted of aggravated breaking and entering and committing a serious indictable offence. Smith appealed the sentence imposed by the trial judge, arguing that the court had erred in its assessment of the objective seriousness of the offence. The appeal was heard by the High Court of Australia.

The central issue before the court was whether the trial judge had correctly assessed the level of objective seriousness of the offence and if the sentencing discretion was impermissibly confined by this erroneous assessment. The court was required to determine whether the trial judge's error in assessing the objective seriousness of the offence led to a sentence that was manifestly inadequate or excessive, and if so, whether the appeal should be allowed.

The court found that the trial judge had indeed erred in assessing the level of objective seriousness of the offence, which led to an impermissible confinement of the sentencing discretion. The court emphasised that the assessment of the objective seriousness of an offence is a crucial factor in determining the appropriate sentence. In this case, the trial judge's error in assessing the objective seriousness of the offence had a significant impact on the sentence imposed. The court held that the trial judge's error was material and led to a sentence that was manifestly inadequate. Consequently, the appeal was allowed, and the matter was remitted to the Court of Appeal for re-sentencing.

The final orders of the court were that the appeal be allowed, the conviction be affirmed, and the matter be remitted to the Court of Appeal for re-sentencing, taking into account the correct assessment of the objective seriousness of the offence.

Orders