Smith v R [2015] NSWCCA 193

Smith v R [2015] NSWCCA 193

The sentencing judge erred by failing to make an express finding as to the applicant's perception that the deceased was armed with a gun and about to use it; this omission materially affected the assessment of how unreasonable (excessive) the applicant’s response was, thus warranting the Court’s intervention, the quashing of the sentence, and re-sentencing on the basis of the applicant’s perception that the deceased was armed and posed a lethal threat.

Parties
Applicant: Graham Smith; Respondent: Regina
Jurisdiction
Australia
Judgment Date
17 July 2015
Procedural Posture
Criminal Appeal / Application for Leave to Appeal Sentence; Sentence Appeal
Outcome
Appeal allowed; sentence imposed below quashed; applicant resentenced to imprisonment with specified non-parole and balance of term periods.
Legal Topics
Manslaughter, Self Defence, Excessive Self Defence, Sentencing, Procedural Fairness
Criminal Law Manslaughter Self Defence Excessive Self Defence Sentencing Procedural Fairness

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Parties

Graham Smith

Applicant

Regina

Respondent

Procedural Posture

Criminal Appeal / Application for Leave to Appeal Sentence; Sentence Appeal

Legal Issues

  1. 1 Whether sentencing judge erred in findings regarding applicant's perception of threat
  2. 2 Whether the sentencing judge erred in relation to self-defence/excessive self-defence under Crimes Act 1900 (NSW) s 421
  3. 3 Whether the sentence was manifestly excessive

Ratio Decidendi

The sentencing judge erred by failing to make an express finding as to the applicant's perception that the deceased was armed with a gun and about to use it; this omission materially affected the assessment of how unreasonable (excessive) the applicant’s response was, thus warranting the Court’s intervention, the quashing of the sentence, and re-sentencing on the basis of the applicant’s perception that the deceased was armed and posed a lethal threat.

Court Disposition

Appeal allowed; sentence imposed below quashed; applicant resentenced to imprisonment with specified non-parole and balance of term periods.

Orders

  • Leave to appeal against sentence granted
  • Appeal allowed, sentence imposed on 8 August 2014 quashed