Smith v The Queen

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.