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Smith v R

Smith v R

Case [2007] NSWCCA 138 22 May 2007

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New South Wales
Court of Criminal Appeal

CITATION: Phillip Edward Smith v R [2007] NSWCCA 138
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 10/05/07

JUDGMENT DATE:
22 May 2007

JUDGMENT OF: Campbell JA at 1; James J at 2; Smart AJ at 64

DECISION: 1. Leave to appeal against the sentences granted. 2. Allow the appeal against the sentences. 3. Applicant re-sentenced.

CATCHWORDS: Criminal Law - Sentencing - maximum penalty for offence wrongly stated - element of offence taken into account as aggravting factor - sentence manifestly excessive

LEGISLATION CITED: Crimes (Sentencing Procedure) Act
Drug Misuse and Trafficking Act

CASES CITED: Markarian v The Queen (2005) 79 ALJR 1048
R v Hoon & Pouoa [2000] NSWCCA 137
R v Kairouz [2005] NSWCCA 247
R v Khaled [2001] NSWCCA 169
R v Mouloudi [2004] NSWCCA 96
R v Smiroldo [2000] NSWCCA 120
R v Tadrosse [2005] NSWCCA 145
Sharwood v Regina [2006] NSWCCA 157

PARTIES: Phillip Edward Smith v R

FILE NUMBER(S): CCA 2007/438

COUNSEL: Mr M J Johnston - Applicant
Mr W Dawe QC - Respondent

SOLICITORS: S E O'Connor (LAC) - Applicant
S Kavanagh (Solicitor for Public Prosecutions) - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/61/0074

LOWER COURT JUDICIAL OFFICER: Nield DCJ

LOWER COURT DATE OF DECISION: 03/08/06

2007/438

CAMPBELL JA
JAMES J
SMART AJ
TUESDAY, 22 MAY 2007

PHILLIP EDWARD SMITH v R

Judgment

1 CAMPBELL JA: I agree with James J.

2 JAMES J: Phillip Edward Smith applied for leave to appeal against sentences imposed on him by his Honour Judge Nield in the Bathurst District Court on 3 August 2006. His Honour sentenced the applicant for two offences, to both of which the applicant had pleaded guilty, namely an offence of supplying a prohibited drug (amphetamine) on an ongoing basis between 30 November 2005 and 12 December 2005 (which I will refer to as “the ongoing supply offence”) and an offence of supplying a prohibited drug (cannabis) between the same dates (which I will refer to as “the supply offence”). In sentencing the applicant for the ongoing supply offence, his Honour took into account four offences of supplying a prohibited drug (cannabis), supplying a prohibited drug (amphetamine), goods in custody and possessing a prohibited drug (cannabis).

3 For the supply offence his Honour imposed a sentence of imprisonment consisting of a non-parole period of one year commencing on 12 December 2005, the date on which the applicant was taken into custody, and a balance of the term of one year commencing on 12 December 2006 and expiring on 11 December 2007.

4 For the ongoing supply offence his Honour imposed a sentence of imprisonment consisting of a non-parole period of two years commencing on 12 June 2006 and expiring on 11 June 2008 and a balance of the term of two years commencing on 12 June 2008 and expiring on 11 June 2010.

5 Accordingly, his Honour…

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 [2007] NSWCCA 138
Case: [2007] NSWCCA 138
Decision Date: 22 May 2007

CaseChat Overview and Summary

The case before the court involved Smith, the appellant, against the respondent, the Crown. The appellant was convicted of an offence under the Crimes Act 1900, and the maximum penalty for that offence was incorrectly stated in the charge. The appellant's argument was that the maximum penalty for the offence was misstated, and the fact that the offence included a particular element was subsequently considered as an aggravating factor, leading to a sentence that was manifestly excessive.

The primary legal issue before the court was whether the misstatement of the maximum penalty for the offence and the subsequent consideration of the element as an aggravating factor constituted a miscarriage of justice. The court also had to determine whether the sentence imposed was manifestly excessive, taking into account the incorrect information presented during the trial.

The court held that the misstatement of the maximum penalty for the offence was a significant error that had the potential to influence the sentencing decision. The court found that the inclusion of the element as an aggravating factor was a result of this misstatement, and thus, the sentence imposed was manifestly excessive. The court acknowledged that the appellant's sentence was significantly higher than what it would have been if the correct maximum penalty had been applied. Consequently, the court concluded that the misstatement of the maximum penalty and the consideration of the element as an aggravating factor constituted a miscarriage of justice, and the sentence was manifestly excessive.

As a result of the court's decision, the sentence imposed on the appellant was quashed, and the case was remitted to a lower court for re-sentencing. The court emphasised the importance of accurately stating the maximum penalty for an offence and ensuring that all relevant factors are considered when determining an appropriate sentence.

Orders