REGINA v. SMITH [2000] NSWCCA 343

REGINA v. SMITH [2000] NSWCCA 343

The sentencing judge adverted to the relevant objective and subjective considerations, including the seriousness of sexual assault of a child, the family context, the respondent's guilty plea and personal circumstances, but failed to translate those considerations into an adequate sentence. The original sentence of three years and six months with a non-parole period of 20 months was manifestly inadequate. The court intervened and imposed a total sentence of four years six months with a non-parole period of 27 months, while allowing for double jeopardy, the guilty plea discount, psychiatric evidence and the respondent's more onerous custody conditions.

Jurisdiction
Australia
Judgment Date
29 August 2000
Procedural Posture
Crown Appeal Against Asserted Inadequacy of Sentence / Appeal to the Court of Criminal Appeal From Sentence Imposed in the District Court of New South Wales
Outcome
Appeal allowed
Legal Topics
['aggravated Sexual Intercourse Without Consent' 'manifest Inadequacy of Sentence' 'crown Sentence Appeal' 'backdating of Sentence' 'guilty Plea Discount' 'double Jeopardy on Crown Appeal' 'non Parole Period']
['criminal Law' 'sentencing' 'criminal Appeals'] ['aggravated Sexual Intercourse Without Consent' 'manifest Inadequacy of Sentence' 'crown Sentence Appeal' 'backdating of Sentence' 'guilty Plea Discount' 'double Jeopardy on Crown Appeal' 'non Parole Period']

Case Brief

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Procedural Posture

Crown Appeal Against Asserted Inadequacy of Sentence / Appeal to the Court of Criminal Appeal From Sentence Imposed in the District Court of New South Wales

Legal Issues

  1. 1 ['Whether the sentence imposed for aggravated sexual intercourse without consent under s.61J of the Crimes Act 1900 was manifestly inadequate.' 'Whether the sentencing judge erred by backdating the sentence to 29 April 1999 when the respondent was also in custody for unrelated offences.' 'What sentence should be imposed if the Crown appeal were allowed, having regard to double jeopardy, the guilty plea, psychiatric evidence and conditions of custody.']

Ratio Decidendi

The sentencing judge adverted to the relevant objective and subjective considerations, including the seriousness of sexual assault of a child, the family context, the respondent's guilty plea and personal circumstances, but failed to translate those considerations into an adequate sentence. The original sentence of three years and six months with a non-parole period of 20 months was manifestly inadequate. The court intervened and imposed a total sentence of four years six months with a non-parole period of 27 months, while allowing for double jeopardy, the guilty plea discount, psychiatric evidence and the respondent's more onerous custody conditions.

Court Disposition

Appeal allowed

Orders

  • ['Original sentence set aside and respondent resentenced to a total sentence of four years six months dating from 29 April 1999.' 'Non-parole period fixed at 27 months dating from 29 April 1999 and expiring on 28 July 2001.' 'Orders made by the sentencing judge concerning supervised parole and directions for...