Smith v The Queen

Case [2011] NSWCCA 163


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: SMITH James Duncan v R [2011] NSWCCA 163
Hearing dates:10 February 2011
Decision date: 03 August 2011
Before: GILES JA [1]
RS HULME J [4]
ADAMS J [72]
Decision:

(i) Grant leave to appeal;

(ii) Allow the appeal;

(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.

Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Way (2004) 60 NSWLR 168
Hillier v DPP [2009] NSWCCA 312; 198 A Crim R 565
R v Van Rysewyk [2008] NSWCCA 130
Mulato v R [2006] NSWCCA 282
R v King [2009] NSWCCA 117
Hili and Jones v The Queen [2010] HCA 45, (2010) 85 ALJR 195
R v Slack [2004] NSWCCA 128
Rolfe v The Queen [2007] NSWCCA 155, 173 A Crim R 168
R v PGM [2008] NSWCCA 172
RWB v R [2010] NSWCCA 147
BT v R [2010] NSWCCA 267
Category:Principal judgment
Parties: James Duncan SMITH
Regina
Representation: 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

  1. GILES JA: As explained by RS Hulme J, the sentencing for offences 7, 8…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HULME J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

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