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Smith v The Queen

Smith v The Queen

Case [2020] NSWCCA 181 3 August 2020

Sentencing

Manifest Excess

Failure to Take Relevant Consideration

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Smith v R [2020] NSWCCA 181
Hearing dates: 7 May 2020
Date of orders: 3 August 2020
Decision date: 03 August 2020
Before: Simpson AJA at [1];
Rothman J at [86];
Bellew J at [87].
Decision:
1. Leave to appeal against sentence is granted;
2. The appeal is allowed and the sentence imposed in the District Court is quashed;
3. In lieu thereof the applicant is sentenced to a non-parole period of imprisonment for 5 years, commencing on 13 June 2019 and expiring on 12 June 2024, with a balance of term of 2 years and 6 months which will expire on 12 December 2026.

Catchwords:
CRIME — appeals — appeal against sentence — manifest excess – manslaughter arising out of the manner in which motor vehicle was driven – applicant heavily intoxicated – comparable decisions of the New South Wales Court of Criminal Appeal used to demonstrate that the starting point, and, therefore, the sentence imposed, were so far out of line with the established pattern of sentencing as to be demonstrably manifestly excessive – after factoring in a 25% discount for plea of guilty, the starting point of 12 years was manifestly excessive
CRIME — appeals — appeal against sentence — failure to take into account a relevant consideration – Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 571 – whether the sentencing judge failed to make an assessment of the applicant’s moral culpability in the light of the evidence of her background – where applicant has a strong subjective case but the objective seriousness of the manslaughter offence was extreme

Legislation Cited:
Crimes (Appeal and Review) Act 2009 (NSW), s 68A
Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2)
Crimes Act 1900 (NSW) ss 18(1), 24, 52A
Criminal Procedure Act 1986 (NSW), s 166
Drug (Misuse and Trafficking) Act 1985 (NSW), ss 10(1), 21
Road Transport Act 2013 (NSW), ss 110(5)(a), 111(1)(a)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 571
Dang v R [2014] NSWCCA 47
Day v R [2014] NSWCCA 333; (2014) 69 MVR 103
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions(Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Duncan v R [2012] NSWCCA 78
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lawler v R [2007] NSWCCA 85; (2007) 169 A Crim R 415
Pham v R [2014] NSWCCA 115
R v Cameron [2005] NSWCCA 359; (2005) 157 A Crim R 70
R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198
R v Gordon (No 8) [2017] NSWSC 574
R vThomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA…

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 The Queen

Details

AGLC: Smith v R [2020] NSWCCA 181
Case: [2020] NSWCCA 181
Decision Date: 03 August 2020

CaseChat Overview and Summary

The appeal against sentence was brought by Smith, the applicant, against the decision of the New South Wales Court of Criminal Appeal. Smith was convicted of manslaughter arising from the manner in which he drove a motor vehicle while heavily intoxicated. The applicant sought to argue that the sentence imposed by the court was manifestly excessive and that the sentencing judge failed to take into account a relevant consideration, specifically his moral culpability.

The legal issues before the court were whether the starting point, and therefore the sentence imposed, were so far out of line with the established pattern of sentencing as to be demonstrably manifestly excessive, and whether the sentencing judge failed to make an assessment of the applicant’s moral culpability in light of the evidence of his background. The applicant argued that the starting point of 12 years was manifestly excessive and that the sentencing judge failed to take into account a relevant consideration, specifically his moral culpability.

The court found that the starting point of 12 years was manifestly excessive, even after factoring in a 25% discount for the plea of guilty. The court found that the starting point was so far out of line with the established pattern of sentencing that it was demonstrably manifestly excessive. The court also found that the sentencing judge failed to make an assessment of the applicant’s moral culpability in light of the evidence of his background. The court found that the applicant had a strong subjective case but the objective seriousness of the manslaughter offence was extreme.

The appeal against sentence was allowed, and the matter was remitted to the New South Wales Court of Criminal Appeal for re-sentencing.

Orders