R v Smith [2004] NSWCCA 95

R v Smith [2004] NSWCCA 95

Although the sentencing judge's references to R v Henry and the mention of the $200 taken from the victim were unnecessary and unfortunate, the Court was not persuaded that, having regard to the offence, the applicant's prior record, the aggravating circumstance of reoffending while on conditional liberty, and the allowances made for the plea, concurrency, protection and rehabilitation, any lesser sentence was warranted in law. The sentence was within the legitimate range of sentencing discretion.

Jurisdiction
Australia
Judgment Date
31 March 2004
Procedural Posture
Criminal Appeal Against Severity of Sentence / Application for Leave to Appeal Against Sentence From the District Court
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['severity Appeal' 'demanding With Menaces With Intent to Steal' 'guideline Judgment' 'de Simoni Principle' 'manifest Excess' 'conditional Liberty' 'drug Addiction and Mitigation']
['criminal Law' 'criminal Procedure' 'sentencing'] ['severity Appeal' 'demanding With Menaces With Intent to Steal' 'guideline Judgment' 'de Simoni Principle' 'manifest Excess' 'conditional Liberty' 'drug Addiction and Mitigation']

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Procedural Posture

Criminal Appeal Against Severity of Sentence / Application for Leave to Appeal Against Sentence From the District Court

Legal Issues

  1. 1 ['Whether the sentencing judge erred by referring to the guideline judgment in R v Henry when sentencing for a different offence.' 'Whether consideration of the applicant having taken $200 from the victim infringed the principle in De Simoni v The Queen.' 'Whether, under s 6 of the Criminal Appeal Act 1912, some lesser sentence was warranted in law and should have been imposed.']

Ratio Decidendi

Although the sentencing judge's references to R v Henry and the mention of the $200 taken from the victim were unnecessary and unfortunate, the Court was not persuaded that, having regard to the offence, the applicant's prior record, the aggravating circumstance of reoffending while on conditional liberty, and the allowances made for the plea, concurrency, protection and rehabilitation, any lesser sentence was warranted in law. The sentence was within the legitimate range of sentencing discretion.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal is granted.' 'The appeal is dismissed.']