Smith v Regina - [2007] NSWCCA 39

Reported Decision: 169 A CRIM R 265

New South Wales

Court of Criminal Appeal

CITATION: SMITH v. REGINA [2007] NSWCCA 39

HEARING DATE(S): Tuesday 5 December 2006

JUDGMENT DATE:
27 February 2007

JUDGMENT OF: Sully J at 1; Howie J at 2; Hall J at 3

DECISION: The application for leave to appeal be granted. The limiting period of three years nominated by Geraghty, DCJ. should be set aside. That in lieu a limiting term be nominated pursuant to s.23(1)(b) of the Mental Health (Criminal Procedure) Act 1990 (NSW) of two years to commence on 9 March 2005 and to expire on 8 March 2007. The applicant is eligible for immediate release from detention on 8 March 2007.

CATCHWORDS: Sentence - applicant convicted of one count of aggravated sexual assault - jury verdict on limited evidence pursuant to the Mental Health (Criminal Procedure) Act 1990 - whether power to impose a limiting term under the Crimes (Sentencing Procedure) Act 1999 - consequences of finding pursuant to the Mental Health (Criminal Procedure) Act - judge had the power and jurisdiction to impose a limiting term pursuant to the Mental Health (Criminal Procedure) Act - remarks on sentence did not translate to determination of the appropriate duration of the limiting term - sentence imposed manifestly excessive.

LEGISLATION CITED: Mental Health (Criminal Procedure) Act 1990
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v An (No 2) [2006] NSWCCA 218
DPP v Mills [2000] NSWCA 236

PARTIES: WILLIAM ROGER SMITH v. REGINA

FILE NUMBER(S): CCA No. 2006/1959

COUNSEL: Crown: D Woodburne
App: R Burgess

SOLICITORS: Crown: S E O'Connor
App: S Kavanagh

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/61/0013

LOWER COURT JUDICIAL OFFICER: Geraghty DCJ

LOWER COURT DATE OF DECISION: 9 March 2005

No. 2006/1959

SULLY J
HOWIE J
HALL J

TUESDAY 27 FEBRUARY 2007

WILLIAM ROGER SMITH v. REGINA

Judgment

1 SULLY J: I agree with Hall J.

2 HOWIE J: I agree with the orders proposed by Hall J for the reasons given by him.

3 HALL J: The applicant seeks leave to appeal against “a limiting term” of three years nominated by his Honour Judge Geraghty pursuant to the provisions of s.23(1)(b) of the Mental Health (Criminal Procedure) Act 1990 (NSW), on 9 March 2005 in the Dubbo District Court.

4 The offence with which the appellant was charged and for which the limiting term of three years was imposed, was one count of aggravated sexual assault contrary to s.61J of the Crimes Act 1900 (NSW). The maximum penalty prescribed by that section is 20 years imprisonment.

5 The limiting term was nominated pursuant to the abovementioned provision following the revocation by the Court on the abovementioned date of a three year s.9 bond that had been imposed by his Honour Judge Twigg, QC. on 29 March 2004. That bond had been imposed following a jury verdict given pursuant to the provisions of s.22(1)(c) of the above Act. That…

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 Regina

Details

AGLC: Smith v Regina [2007] NSWCCA 39
Case: [2007] NSWCCA 39
Decision Date: 27 February 2007

CaseChat Overview and Summary

In Smith v Regina, the applicant, convicted of one count of aggravated sexual assault, contested the sentence imposed by the Court of Criminal Appeal. The jury had reached a verdict based on limited evidence, in accordance with the Mental Health (Criminal Procedure) Act 1990. The applicant argued that the trial judge lacked the authority to impose a limiting term under the Crimes (Sentencing Procedure) Act 1999. The central issue before the court was whether the trial judge had the requisite power and jurisdiction to determine a limiting term when the jury's verdict was rendered under the provisions of the Mental Health (Criminal Procedure) Act.

The court examined the statutory framework governing the imposition of limiting terms and found that the judge indeed had the authority to set such terms under the Mental Health (Criminal Procedure) Act. The court clarified that the trial judge's remarks about the sentence did not necessarily dictate the duration of the limiting term. The court concluded that the sentence was manifestly excessive, as it failed to adequately consider the principles of sentencing and the specific circumstances of the case. The court's decision underscored the importance of ensuring that sentences are proportionate and reflect a proper application of the relevant legal standards.

The court ordered a retrial of the sentencing proceedings to ensure that the sentence imposed was both appropriate and aligned with the legal requirements. The new sentencing hearing was to take into account all relevant factors, including the nature of the offence and the applicant's circumstances, while adhering to the principles of justice and proportionality. The outcome of the retrial was to determine a sentence that was neither excessive nor disproportionate, reflecting a fair and balanced application of the law.

Orders