Regina v Brendon James SMITH [1999] NSWCCA 45

Regina v Brendon James SMITH [1999] NSWCCA 45

The sentence appeal was allowed only to backdate the sentence because the sentencing judge made factual and legal errors, including effectively sentencing on the basis of grievous bodily harm and failing to proceed on factual matters favourable to the applicant where the contrary was not proved beyond reasonable doubt. However, given the objective seriousness of the stomping and robbery and the applicant's subjective circumstances, a total term of four years with a two-year minimum term was appropriate, with credit for pre-trial custody and part of the rehabilitation centre period.

Jurisdiction
Australia
Judgment Date
12 March 1999
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Severity of Sentence
Outcome
Leave to appeal granted; appeal allowed to the extent of back-dating the sentences.
Legal Topics
['assault and Robbery' 'severity of Sentence' 'plea of Guilty' 'youth' 'aboriginality' 'rehabilitation' 'pre Trial Custody' 'backdating of Sentence']
['criminal Law' 'sentencing'] ['assault and Robbery' 'severity of Sentence' 'plea of Guilty' 'youth' 'aboriginality' 'rehabilitation' 'pre Trial Custody' 'backdating of Sentence']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Severity of Sentence

Legal Issues

  1. 1 ['Whether the sentence for assault and robbery under s.95 of the Crimes Act, 1900 was excessive.' 'Whether the sentencing judge erroneously proceeded on the basis that grievous bodily harm had been inflicted.' 'Whether the sentencing judge should have proceeded on the basis that the victim threw the first punch and may have made a racial slur.' 'Whether allowance should have been made for time spent in custody and in the Second Chance Rehabilitation Centre.']

Ratio Decidendi

The sentence appeal was allowed only to backdate the sentence because the sentencing judge made factual and legal errors, including effectively sentencing on the basis of grievous bodily harm and failing to proceed on factual matters favourable to the applicant where the contrary was not proved beyond reasonable doubt. However, given the objective seriousness of the stomping and robbery and the applicant's subjective circumstances, a total term of four years with a two-year minimum term was appropriate, with credit for pre-trial custody and part of the rehabilitation centre period.

Court Disposition

Leave to appeal granted; appeal allowed to the extent of back-dating the sentences.

Orders

  • ['In lieu of the starting and finishing dates specified by the judge, the applicant is sentenced to 4 years penal servitude comprising a minimum term starting 25 July 1997 and ending 24 July 1999 and an additional term of 2 years starting on 25 July 1999 and ending on 24 July 2001.' 'The applicant will be eligible...