R v Smith [2004] NSWCCA 69

R v Smith [2004] NSWCCA 69

The appeal against conviction failed because the appellant had pleaded guilty to escape from lawful custody under s 310D of the Crimes Act and could not use this proceeding to relitigate the earlier convictions and sentences. Leave to appeal against sentence was granted, but the appeal was dismissed because no factual or legal sentencing error was shown and the two year sentence with an eighteen month non-parole period was within the range of sound sentencing discretion, particularly given the planned escape and the importance of general deterrence.

Jurisdiction
Australia
Judgment Date
16 March 2004
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Application for Leave to Appeal Against Sentence From the District Court
Outcome
Appeal against conviction dismissed; leave to appeal against sentence granted but appeal dismissed.
Legal Topics
['escape From Lawful Custody' 'appeal Against Conviction' 'leave to Appeal Against Sentence' 'manifest Excess' 're Opening Sentence Under S 43']
['criminal Law' 'sentencing' 'criminal Procedure'] ['escape From Lawful Custody' 'appeal Against Conviction' 'leave to Appeal Against Sentence' 'manifest Excess' 're Opening Sentence Under S 43']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether the appellant's conviction for escape from lawful custody should be set aside despite his guilty plea." 'Whether the appellant could use the appeal to revisit his earlier convictions and sentences.' 'Whether the sentence of two years imprisonment with an eighteen month non-parole period was manifestly excessive.' 'Whether s 43 of the Crimes (Sentencing Procedure) Act 1999 permitted a rehearing on the merits of the sentence.']

Ratio Decidendi

The appeal against conviction failed because the appellant had pleaded guilty to escape from lawful custody under s 310D of the Crimes Act and could not use this proceeding to relitigate the earlier convictions and sentences. Leave to appeal against sentence was granted, but the appeal was dismissed because no factual or legal sentencing error was shown and the two year sentence with an eighteen month non-parole period was within the range of sound sentencing discretion, particularly given the planned escape and the importance of general deterrence.

Court Disposition

Appeal against conviction dismissed; leave to appeal against sentence granted but appeal dismissed.

Orders

  • ['The appeal against conviction be dismissed.' 'Leave to appeal against sentence be granted but the appeal be dismissed.']