Smith v R [2009] NSWCCA 17

Smith v R [2009] NSWCCA 17

The sentencing judge erred in the assessment of the objective seriousness of the offence, which was below the middle of the range for offences under s 112(3) of the Crimes Act. The judge also impermissibly confined sentencing discretion by taking a mathematical approach around the standard non-parole period. Considering mitigating factors including the applicant's developmental disability, the absence of premeditation, and the minor nature of the injuries, the original sentence was manifestly excessive and a lesser sentence was appropriate.

Parties
Applicant: William Roger Smith; Respondent: Regina
Jurisdiction
Australia
Judgment Date
27 February 2009
Procedural Posture
Criminal Appeal / Sentence Appeal, Court of Criminal Appeal
Outcome
Appeal against sentence allowed
Legal Topics
Sentencing, Aggravated Breaking and Entering, Objective Seriousness, Sentencing Discretion, Manifest Excess
Criminal Law Sentencing Aggravated Breaking and Entering Objective Seriousness Sentencing Discretion Manifest Excess

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Parties

William Roger Smith

Applicant

Regina

Respondent

Procedural Posture

Criminal Appeal / Sentence Appeal, Court of Criminal Appeal

Legal Issues

  1. 1 Whether the sentencing judge erred in the assessment of objective seriousness of the offence
  2. 2 Whether the sentencing discretion was impermissibly confined
  3. 3 Whether the sentence imposed was manifestly excessive

Ratio Decidendi

The sentencing judge erred in the assessment of the objective seriousness of the offence, which was below the middle of the range for offences under s 112(3) of the Crimes Act. The judge also impermissibly confined sentencing discretion by taking a mathematical approach around the standard non-parole period. Considering mitigating factors including the applicant's developmental disability, the absence of premeditation, and the minor nature of the injuries, the original sentence was manifestly excessive and a lesser sentence was appropriate.

Court Disposition

Appeal against sentence allowed

Orders

  • Leave to appeal against the sentence imposed by Acting Judge Woods granted.
  • Appeal against sentence allowed.