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Smith v The The Queen

Smith v The The Queen

Case [2022] NSWCCA 88 22 April 2022

Manifestly Excessive Sentence

Non-Parole Period

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Smith v R [2022] NSWCCA 88
Hearing dates: 3 February 2022
Date of orders: 3 February 2022
Decision date: 22 April 2022
Before: Johnson J at [1];
Harrison J at [2];
Fagan J at [3]
Decision:
1. Leave is granted to the Applicant to proceed on the application filed out of time.
2. Leave to appeal is granted.
3. The appeal against sentence is allowed.
4. The aggregate sentence imposed by her Honour Judge Shead SC on 4 September 2020 is quashed.
5. In lieu thereof, the Applicant is sentenced to an aggregate term of imprisonment of 2 years and 4 months with a non-parole period of 1 year and 5 months commencing on 4 September 2020 and expiring on 3 February 2022 with a balance of term of 11 months expiring on 3 January 2023.
6. The Applicant is entitled to be released on parole on 4 February 2022.
7. The indicative sentence for Sequence 1 is 12 months with a non-parole period of 7 months.
8. The indicative sentence for Sequence 8 (taking into account the Form 1) is 1 year and 10 months with a non-parole period of 13 months.
9. The indicative sentence for Sequence 10 (taking into account the Form 1) is 1 year and 10 months with a non-parole period of 13 months.

Catchwords:
CRIME – appeals – appeal against sentence – applicant sentenced for sexual offences committed against 14-15 year old student – where applicant was a physical education teacher – explicit material exchanged on Snapchat – touching on the outside of clothing – where the applicant’s borderline personality disorder materially contributed to the commission of the offending – sentence manifestly excessive – weight to be afforded to the promotion of rehabilitation of the applicant – error in taking into account in relation to one offence a standard non-parole period that had ceased to be applicable

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act1999 (NSW)

Cases Cited:
Chartres-Abbott v R [2021] NSWCCA 239
Clarkson v The Queen; EJA v The Queen (2011) 32 VR 361; [2011] VSCA 157
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
Fisher (1989) 40 A Crim R 442
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Ibbotson v R [2020] NSWCCA 92
MH v R [2011] NSWCCA 230
NT v R [2007] NSWCCA 143
Obeid v R (2017) 96 NSWLR 155;[2017] NSWCCA 221
R v ABS [2005] NSWCCA 255
R v CMB [2014] NSWCCA 5
R v G [2008] UKHL 37; [2009] 1 AC 92
R v Gavel [2014] NSWCCA 56
R v Van Ryn [2016] NSWCCA 1
SW v R [2013] NSWCCA 255

Category: Principal judgment
Parties: Katie Smith - applicant
Regina - respondent
Representation:
Counsel:
G Lewer with…

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 The Queen

Details

AGLC: Smith v The The Queen [2022] NSWCCA 88
Case: [2022] NSWCCA 88
Decision Date: 22 April 2022

CaseChat Overview and Summary

The applicant, Smith, appealed against his sentence for sexual offences against a student aged between 14 and 15 years. Smith was a physical education teacher at the time of the offences. The communications between Smith and the victim commenced on Snapchat, where explicit material was exchanged. The offending involved touching on the outside of the victim's clothing. Smith's borderline personality disorder was noted to have materially contributed to the commission of the offences. The appeal centred on the contention that the sentence imposed was manifestly excessive and that insufficient weight had been given to Smith's prospects for rehabilitation. Additionally, the appeal argued that the court had erred in applying a standard non-parole period that was no longer applicable in relation to one of the offences.

The primary legal issues for the court to determine were whether the sentence imposed was manifestly excessive, and if the court had erred in its consideration of the non-parole period. The court was also required to assess whether the sentence adequately balanced the need for denunciation, deterrence, and the rehabilitation of the offender. The court needed to consider the impact of Smith's borderline personality disorder on his offending and whether this had been appropriately taken into account.

The court found that the sentence was manifestly excessive given the circumstances of the case, particularly in light of Smith's prospects for rehabilitation. The court recognised that the sentencing judge had erred in applying a standard non-parole period that had ceased to be applicable to one of the offences. The court determined that the sentence should be reduced to reflect the appropriate balance between the various sentencing objectives. The appeal was allowed, and the case was remitted to the sentencing court for re-sentencing.

The final orders of the court included a reduction in the sentence imposed on Smith, reflecting the court's determination that the original sentence was manifestly excessive. The court directed that the sentencing court give appropriate consideration to Smith's prospects for rehabilitation, including the impact of his borderline personality disorder. The court also clarified that the appropriate non-parole period should be applied in relation to one of the offences.

Orders