SMART, Gary v R [2013] NSWCCA 37

SMART, Gary v R [2013] NSWCCA 37

The sentencing judge accepted the applicant's psychological condition and took it into account as part of his subjective case, including that custody was likely to be more burdensome, but was entitled to find that the condition had no bearing on the commission of the offences and that general deterrence required particular weight. Given the seriousness and planned, profit-motivated nature of manufacturing and possessing sub-machine guns intended for sale, the Form 1 matters, the statutory maxima, the discount allowed and special circumstances, the severe sentencing outcome was not beyond the bounds of the proper exercise of the sentencing discretion.

Jurisdiction
Australia
Judgment Date
25 February 2013
Procedural Posture
Criminal Application for Leave to Appeal Against Sentence / Court of Criminal Appeal; Leave to Appeal Granted, Appeal Dismissed
Outcome
Leave to appeal granted, appeal dismissed
Legal Topics
['application for Leave to Appeal Against Sentence' 'manufacturing Sub Machine Guns' 'unauthorised Possession of Firearms and Prohibited Weapons' 'psychological Condition in Sentencing' 'manifest Excess']
['criminal Law' 'sentencing' 'firearms Offences'] ['application for Leave to Appeal Against Sentence' 'manufacturing Sub Machine Guns' 'unauthorised Possession of Firearms and Prohibited Weapons' 'psychological Condition in Sentencing' 'manifest Excess']

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Procedural Posture

Criminal Application for Leave to Appeal Against Sentence / Court of Criminal Appeal; Leave to Appeal Granted, Appeal Dismissed

Legal Issues

  1. 1 ["Whether the sentencing judge failed to have adequate regard to evidence of the applicant's psychological condition." 'Whether the individual sentences and aggregate sentence were manifestly excessive.']

Ratio Decidendi

The sentencing judge accepted the applicant's psychological condition and took it into account as part of his subjective case, including that custody was likely to be more burdensome, but was entitled to find that the condition had no bearing on the commission of the offences and that general deterrence required particular weight. Given the seriousness and planned, profit-motivated nature of manufacturing and possessing sub-machine guns intended for sale, the Form 1 matters, the statutory maxima, the discount allowed and special circumstances, the severe sentencing outcome was not beyond the bounds of the proper exercise of the sentencing discretion.

Court Disposition

Leave to appeal granted, appeal dismissed

Orders

  • ['Grant leave to appeal.' 'Dismiss the appeal.']