R v Smith [2007] NSWCCA 100

R v Smith [2007] NSWCCA 100

The sentencing judge's errors in failing to accumulate sentences for multiple sequential robberies and in double counting the guilty plea discount, together with the wholly concurrent structure and the respondent's offending while on bail and use of violence, produced sentences outside the range legitimately available and manifestly inadequate. No discretionary basis, including parity with co-offenders, justified dismissing the Crown appeal. The appeal was allowed, the sentences quashed, and the respondent resentenced with partial accumulation to an overall head sentence of five and a half years and an overall non-parole period of three years and nine months, moderated for youth, the...

Jurisdiction
Australia
Judgment Date
12 April 2007
Procedural Posture
Crown Appeal Against Sentences / Appeal to the New South Wales Court of Criminal Appeal From Sentences Imposed in the District Court After Pleas of Guilty
Outcome
Appeal allowed; sentences quashed; respondent resentenced.
Legal Topics
['manifest Inadequacy of Sentence' 'crown Appeal Against Sentence' 'robbery in Company' 'assault With Intent to Rob Whilst in Company' 'form 1 Offences' 'henry Guideline' 'pleas of Guilty' 'multiplicity of Offences' 'offending While on Bail' 'non Parole Period' 'special Circumstances' 'parity With Co Offenders']
['criminal Law' 'sentencing'] ['manifest Inadequacy of Sentence' 'crown Appeal Against Sentence' 'robbery in Company' 'assault With Intent to Rob Whilst in Company' 'form 1 Offences' 'henry Guideline' 'pleas of Guilty' 'multiplicity of Offences' 'offending While on Bail' 'non Parole Period' 'special Circumstances' 'parity With Co Offenders']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Crown Appeal Against Sentences / Appeal to the New South Wales Court of Criminal Appeal From Sentences Imposed in the District Court After Pleas of Guilty

Legal Issues

  1. 1 ['Whether the sentences imposed for six offences, with four Form 1 offences taken into account, were manifestly inadequate.' 'Whether the sentencing judge erred by failing to give sufficient weight to multiplicity of offences and by ordering all sentences to be served concurrently.' 'Whether the sentencing judge double counted the discount for pleas of guilty when applying the Henry guideline.' 'Whether further error arose from the treatment of offending while on bail, gratuitous actual violence, and the statutory proportions between head sentence and non-parole period.' 'Whether the Court should exercise any residual discretion to dismiss the Crown appeal despite established error.' 'What sentences should be imposed on resentencing.']

Ratio Decidendi

The sentencing judge's errors in failing to accumulate sentences for multiple sequential robberies and in double counting the guilty plea discount, together with the wholly concurrent structure and the respondent's offending while on bail and use of violence, produced sentences outside the range legitimately available and manifestly inadequate. No discretionary basis, including parity with co-offenders, justified dismissing the Crown appeal. The appeal was allowed, the sentences quashed, and the respondent resentenced with partial accumulation to an overall head sentence of five and a half years and an overall non-parole period of three years and nine months, moderated for youth, the...

Court Disposition

Appeal allowed; sentences quashed; respondent resentenced.

Orders

  • ['Count 1, taking into account the Form 1 offences: fixed term of two years and nine months, commencing on 8 December 2005 and expiring on 7 September 2008.' 'Counts 2 and 3: fixed term of imprisonment for three years, commencing on 8 March 2006 and expiring on 7 March 2009.' 'Counts 4 and 5: fixed term of...