(iii) Quash the sentences imposed on the Applicant by Cogswell DCJ on 28 August 2009.
(iv) In respect of count 1, sentence the Applicant to imprisonment for a fixed term of 2 years commencing on 31 August 2007;
(v) In respect of count 2, sentence the Applicant to imprisonment for a fixed term of 3 years commencing on 31 August 2007;
(vi) In respect of count 3, sentence the Applicant to imprisonment for a fixed term of 1 year commencing on 31 August 2010;
(vii) In respect of count 4, sentence the Applicant to imprisonment for a fixed term of 1 year and 6 months commencing on 31 August 2010;
(viii) In respect of count 5, sentence the Applicant to imprisonment for a fixed term of 3 years commencing on 31 August 2010;
(ix) In respect of count 6, sentence the Applicant to imprisonment for a fixed term of 6 months commencing on 31 August 2010;
(x) In respect of count 7, sentence the Applicant to imprisonment for a non-parole period of 2 years and 10 months commencing on 30 April 2012, together with a balance of term of 2 years and 6 months commencing on 28 February 2015;
(xi) In respect of count 8, sentence the Applicant to imprisonment for a non-parole period of 9 months commencing on 31 August 2013 together with a balance of term of 3 months commencing on 31 May 2014;
(xii) In respect of count 9, sentence the Applicant to imprisonment for a non-parole period of 6 months commencing on 31 August 2013 together with a balance of term of 2 months commencing on 28 February 2014.
(xiii) Record as the date upon which it appears to the Court that the Applicant shall become eligible for parole, 28 February 2015.
Counsel: J Manuell SC V Lydiard Solicitors: Legal Aid Commission Solicitor for Public Prosecutions
File Number(s):
2007/11356
Decision under appeal
Date of Decision:
2009-08-28 00:00:00
Before:
Cogswell DCJ
Judgment
GILES JA: As explained by RS Hulme J, the sentencing for offences 7, 8…
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.
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Details
AGLC
Smith v R [2011] NSWCCA 163
Case
[2011] NSWCCA 163
Decision Date
CaseChat Overview and Summary
James Duncan Smith (Applicant) appeals against his conviction and sentence for nine counts of indecent assault and sexual intercourse with a child under 10. The Court of Criminal Appeal allowed the appeal, quashed the sentences imposed on the Applicant by Cogswell DCJ on 28 August 2009, and re-sentenced the Applicant. The Applicant was found guilty by a jury of nine counts of indecent assault and sexual intercourse with a child under 10. The sentences imposed were a total of 14 years and 7 months including a non-parole period of 11 years and 7 months. The Court held that the sentences imposed were manifestly excessive and quashed them. The Court considered the appropriate non-parole periods or fixed terms for each offence, taking into account the totality principle and the Applicant's subjective circumstances. The Court proposed a total effective sentence of 10 years, including non-parole periods totalling 7 and a half years. The Court also made orders for the commencement dates of the sentences and the date upon which the Applicant shall become eligible for parole.