Regina v David Charles Smith [2001] NSWCCA 420

Regina v David Charles Smith [2001] NSWCCA 420

The sentencing judge erred by taking into account the overwhelming strength of the Crown case when assessing the utilitarian discount for the guilty plea, requiring leave and re-sentencing. On re-sentencing, a four year head sentence with a 20 per cent guilty plea discount was appropriate for an objectively very serious, planned domestic assault with knives and a related breach of an apprehended domestic violence order. However, special circumstances were established because the applicant, an Aboriginal former prison officer, had been harassed in custody, was required to remain on protection, and was isolated from other Aboriginal prisoners, making custody more onerous; the non-parole...

Jurisdiction
Australia
Judgment Date
15 October 2001
Procedural Posture
Criminal Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Re Sentencing After Leave Granted and Appeal Allowed
Outcome
Application for leave to appeal granted; appeal allowed; District Court sentence quashed; applicant re-sentenced to four years imprisonment with a non-parole period of two years.
Legal Topics
['maliciously Inflicting Grievous Bodily Harm' 'guilty Plea Discount' 'domestic Violence Order Breach Taken Into Account on Form 1' 'special Circumstances' 'non Parole Period' 'protection Custody' 'aboriginal Offender Sentencing Submissions']
['criminal Law' 'sentencing'] ['maliciously Inflicting Grievous Bodily Harm' 'guilty Plea Discount' 'domestic Violence Order Breach Taken Into Account on Form 1' 'special Circumstances' 'non Parole Period' 'protection Custody' 'aboriginal Offender Sentencing Submissions']

Case Brief

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Procedural Posture

Criminal Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Re Sentencing After Leave Granted and Appeal Allowed

Legal Issues

  1. 1 ["Whether the sentencing judge erred by taking into account the strength of the Crown case when assessing the utilitarian discount for the applicant's guilty plea." 'Whether the sentence of four years imprisonment was manifestly excessive.' "Whether principles concerning Aboriginal offenders in R v Fernando affected sentence in light of the applicant's background." 'Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 because custody was more onerous for the applicant as an Aboriginal former prison officer held on protection.']

Ratio Decidendi

The sentencing judge erred by taking into account the overwhelming strength of the Crown case when assessing the utilitarian discount for the guilty plea, requiring leave and re-sentencing. On re-sentencing, a four year head sentence with a 20 per cent guilty plea discount was appropriate for an objectively very serious, planned domestic assault with knives and a related breach of an apprehended domestic violence order. However, special circumstances were established because the applicant, an Aboriginal former prison officer, had been harassed in custody, was required to remain on protection, and was isolated from other Aboriginal prisoners, making custody more onerous; the non-parole...

Court Disposition

Application for leave to appeal granted; appeal allowed; District Court sentence quashed; applicant re-sentenced to four years imprisonment with a non-parole period of two years.

Orders

  • ['Application for leave to appeal granted.' 'Appeal allowed.' 'Sentence imposed in the District Court quashed.' 'In lieu thereof the applicant is sentenced to a term of four years imprisonment to date from 9 November 2000 and to expire on 8 November 2004.' 'A non-parole period of two years is specified.' 'The first...