Citation: Regina v Brendon James Smith [1999] NSWCCA 45
Court: New South Wales Court of Criminal Appeal
Date: 12 March 1999
Judge(s): Simpson J; Smart AJ
Background
The appellant pleaded guilty in the District Court to assault and robbery under s 95 of the Crimes Act 1900, arising from an incident on 24 March 1997 at an automatic teller machine in Orange, New South Wales. The victim, who had been drinking, was approached by the appellant while withdrawing cash. An argument ensued, during which the victim struck the appellant first. The appellant then punched the victim, stomped on his face while he lay semi-conscious on the ground, and took money from his pockets. The victim suffered fractures to his cheekbone, orbital floor, and nasal bones.
The District Court sentenced the appellant to a minimum term of two years and an additional term of two years. The appellant sought leave to appeal against the severity of that sentence, raising several grounds including that the sentencing judge had proceeded on a basis inconsistent with the charge actually laid.
Legal Issues
- Whether the sentencing judge erred by effectively sentencing the appellant as if he had been charged with robbery and grievous bodily harm under s 96 of the Crimes Act 1900, rather than the s 95 charge to which he pleaded guilty.
- Whether the judge erred in rejecting, without adequate basis, the appellant's evidence that the victim made a racial slur about the appellant's Aboriginal identity.
- Whether the sentence properly accounted for time spent in pre-trial custody and at a rehabilitation centre.
- Whether the judge gave sufficient weight to the appellant's subjective circumstances, including youth, background, and rehabilitation efforts.
Decision
The Court of Criminal Appeal accepted that the sentencing judge had, in substance, treated the offence as if grievous bodily harm had been charged. While the severity of the injuries was a relevant consideration under s 95, the appellant could not be sentenced on the basis of an offence that was not before the court. This error justified re-sentencing.
The Court also found that the judge had wrongly rejected the appellant's account of a racial slur. The victim could not contradict that account, and the issue had not been explored in cross-examination. The sentencing court was required, at minimum, to proceed on the basis that the remark may well have been made. That finding, together with the unchallenged evidence that the victim struck first, provided some contextual explanation for the initial altercation, even though the stomping and robbery remained inexcusable.
On re-sentencing, the Court maintained a total sentence of four years penal servitude, comprising a minimum term of two years and an additional term of two years. Smart AJ regarded a lower full term as impossible given the objective seriousness of the offence, but accepted that the sentences should be back-dated to account for pre-trial custody and time spent at the Second Chance Rehabilitation Centre at Cookamidgera, totalling four months and three days. The appellant's youth (born December 1978), troubled upbringing, history of abuse and self-harm, serious alcohol and drug problems, guilty plea at the first opportunity, and positive steps toward rehabilitation in custody were all taken into account, but did not warrant reducing the full term.
Orders Made
- Leave to appeal granted.
- Appeal allowed to the extent of back-dating the sentences.
- The appellant sentenced to four years penal servitude, comprising a minimum term commencing 25 July 1997 and ending 24 July 1999, and an additional term of two years commencing 25 July 1999 and ending 24 July 2001.
- The appellant eligible for release on parole on 25 July 1999.
Key Takeaways
- A sentence under s 95 of the Crimes Act 1900 (assault and robbery) cannot be imposed on the basis that the offender inflicted grievous bodily harm, which is an element of the separate offence under s 96. The injuries caused remain relevant to objective seriousness, but the sentencing court must stay within the bounds of the charge proven.
- Where an accused makes a factual assertion that the prosecution cannot disprove and that is not explored in cross-examination, the sentencing court is required to proceed on the basis that the assertion may well be true, consistent with the principles affirmed in R v Storey.
- Pre-trial custody and time spent in a residential rehabilitation centre (where the offender was not free to leave) can properly be taken into account when back-dating a sentence, even if the rehabilitation period does not attract full credit.
- In re-sentencing, the Court of Criminal Appeal maintained the total sentence length despite identifying errors below, reflecting the objective gravity of an unprovoked stomping on a defenceless victim followed by robbery.
- Subjective factors including youth, an abusive upbringing, remorse, and genuine rehabilitation efforts in custody are relevant to sentencing but do not automatically reduce the head sentence where the offence is sufficiently serious.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 95 (assault with intent to rob, or robbery)
- Crimes Act 1900 (NSW), s 96 (assault, robbery, and wounding or grievous bodily harm)
Cases cited: No cases were cited in the judgment or metadata.