Smith v The Queen - [2017] NSWCCA 175

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Smith v R [2017] NSWCCA 175
Hearing dates: 19 July 2017
Decision date: 24 July 2017
Before: Hoeben CJ at CL at [1];
Price J at [2];
Adamson J at [3]
Decision:
(1) Grant leave to appeal.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – application for leave to appeal against sentence – offence of causing grievous bodily harm with intent – HELD – sentencing judge entitled to treat facts in expert reports with caution where no sworn evidence given by the applicant – discount allowed for a plea is a matter of discretion for sentencing judge – no error in discount of 15 per cent allowed by sentencing judge – none of grounds made out
Legislation Cited: Crimes Act 1900 (NSW), ss 33, 35, 61
Criminal Appeal Act 1912 (NSW), s 5
Criminal Procedure Act 1986 (NSW), s 166
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22, 32
Cases Cited: R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Category: Principal judgment
Parties: Rebecca Joy Smith (Applicant)
Regina (Respondent)
Representation:
Counsel:
Applicant (Self-represented)
T Smith (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/244791
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

10 June 2016

Before:

Norrish DCJ

File Number(s):

2014/244791

Judgment

HOEBEN CJ at CL: I agree with Adamson J.
PRICE J: I agree with Adamson J.
ADAMSON J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act1912 (NSW) to appeal the sentence imposed upon her by Norrish QC DCJ in the District Court at Queanbeyan on 10 June 2016 following her plea of guilty on 7 March 2016 to the offence of causing grievous bodily harm with intent. The standard non-parole period for that offence is 7 years and the maximum penalty is 25 years.
The sentencing judge imposed a sentence of 4 years and 3 months imprisonment with a non-parole period of 2 years and 1 month, after applying a discount of 15 per cent for the plea of guilty. A related charge of common assault towards a security guard during the course of the incident, contrary to s 61 of the Crimes Act 1900 (NSW) (which carries a maximum penalty of two years), was specified on a certificate issued pursuant to s 166(1) of the Criminal Procedure Act 1986 (NSW) and was taken into account in the sentence for the principal offence on a Form 1 filed at the sentence hearing pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Procedural summary

The background to the applicant’s plea was as follows. She had been committed for trial from Queanbeyan Local Court on two charges: cause grievous bodily harm with intent in…

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 The Queen [2017] NSWCCA 175
Case: [2017] NSWCCA 175
Decision Date: 24 July 2017

CaseChat Overview and Summary

Smith was convicted of causing grievous bodily harm with intent and appealed against his sentence. The appeal was heard by the High Court of Australia. The central issue before the court was whether the sentencing judge erred in considering certain facts from expert reports without the applicant providing sworn evidence, and whether the discount of 15 per cent for a plea was appropriately applied.

The court considered that the sentencing judge was entitled to exercise caution in treating the facts from expert reports, especially since no sworn evidence was provided by Smith. The court found that the sentencing judge appropriately exercised their discretion in granting a 15 per cent discount for the plea. The court also held that there was no error in the discount allowed by the sentencing judge and that none of the grounds for appeal were made out. Consequently, the application for leave to appeal against the sentence was dismissed.

Orders