Dwayne William SMITH v R [2011] NSWCCA 209

Dwayne William SMITH v R [2011] NSWCCA 209

The sentencing judge did not err in refusing to find special circumstances or in allowing a 15% discount for the guilty plea, but erred by treating the applicant's misguided revenge motive as underscoring the need for personal deterrence and by not giving that motive its proper, though limited, mitigating weight. Because the motive lessened culpability and diminished the need for personal deterrence to some extent, the original sentence was unduly harsh and a lesser sentence was warranted.

Jurisdiction
Australia
Judgment Date
09 September 2011
Procedural Posture
Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Sentence Appeal From the District Court
Outcome
Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant re-sentenced.
Legal Topics
['break and Enter With Intent to Commit Serious Indictable Offence in Circumstances of Special Aggravation' 'common Assault on Form 1' 'special Circumstances' 'discount for Plea of Guilty' 'provocation or Motive as Mitigation' 'manifest Excess']
['criminal Law' 'sentencing'] ['break and Enter With Intent to Commit Serious Indictable Offence in Circumstances of Special Aggravation' 'common Assault on Form 1' 'special Circumstances' 'discount for Plea of Guilty' 'provocation or Motive as Mitigation' 'manifest Excess']

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

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

Legal Issues

  1. 1 ['Whether the sentencing judge erred in declining to find special circumstances.' 'Whether the 15% discount allowed for the guilty plea was inadequate.' 'Whether the sentencing judge gave inadequate weight to the element of provocation or motive in mitigation of sentence.' 'Whether the sentence was manifestly excessive.']

Ratio Decidendi

The sentencing judge did not err in refusing to find special circumstances or in allowing a 15% discount for the guilty plea, but erred by treating the applicant's misguided revenge motive as underscoring the need for personal deterrence and by not giving that motive its proper, though limited, mitigating weight. Because the motive lessened culpability and diminished the need for personal deterrence to some extent, the original sentence was unduly harsh and a lesser sentence was warranted.

Court Disposition

Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant re-sentenced.

Orders

  • ['Taking into account the offence on the Form 1, the applicant is sentenced to a non-parole period of 3 years commencing on 17 December 2009 and expiring on 16 December 2012.' 'The applicant is sentenced to a balance of term of 1 year and 3 months commencing on 17 December 2012 and expiring on 16 March 2014.']