Smale v R [2009] NSWCCA 220

Smale v R [2009] NSWCCA 220

The sentencing judge did not err in the treatment of special circumstances, totality or partial accumulation: a parole period of 2 years 6 months was not insignificant, and giving greater effect to special circumstances would have produced a non-parole period that failed adequately to reflect the criminality of the offence. It was open on the applicant's accepted version that he struck out with the pinch bar to treat the infliction of grievous bodily harm as intentional malice rather than merely reckless. The 7 year sentence with a 5 year non-parole period for the specially aggravated break, enter and steal offence was within the range of sound sentencing discretion, particularly given...

Jurisdiction
Australia
Judgment Date
14 September 2009
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['specially Aggravated Break, Enter and Steal' 'partial Accumulation of Sentence' 'special Circumstances' 'non Parole Period' 'manifest Excess' 'intentional or Reckless Infliction of Grievous Bodily Harm' 'form 1 Offences' 'conditional Liberty']
['criminal Law' 'sentencing'] ['specially Aggravated Break, Enter and Steal' 'partial Accumulation of Sentence' 'special Circumstances' 'non Parole Period' 'manifest Excess' 'intentional or Reckless Infliction of Grievous Bodily Harm' 'form 1 Offences' 'conditional Liberty']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge failed properly to take into account that the effective period on parole resulting from the sentences was only 2 years 6 months in a total effective sentence of 18 years 6 months.' 'Whether the effective parole period of 2 years 6 months in a total effective sentence of 18 years 6 months amounted to an error of law.' 'Whether the sentence was manifestly excessive.' 'Whether the applicant was wrongly sentenced on the basis that grievous bodily harm in the specially aggravated breaking and entering offence was intentionally inflicted rather than recklessly inflicted.']

Ratio Decidendi

The sentencing judge did not err in the treatment of special circumstances, totality or partial accumulation: a parole period of 2 years 6 months was not insignificant, and giving greater effect to special circumstances would have produced a non-parole period that failed adequately to reflect the criminality of the offence. It was open on the applicant's accepted version that he struck out with the pinch bar to treat the infliction of grievous bodily harm as intentional malice rather than merely reckless. The 7 year sentence with a 5 year non-parole period for the specially aggravated break, enter and steal offence was within the range of sound sentencing discretion, particularly given...

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

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