AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
5
Court of Criminal Appeal 27 February 2009

Smith v R

[2009] NSWCCA 17

Assault & violenceTheft & property

Citation: Smith v R [2009] NSWCCA 17
Court: NSW Court of Criminal Appeal
Date: 27 February 2009
Judge(s): McClellan CJ at CL, James J, Adams J

Background

The appellant pleaded guilty in the District Court to specially aggravated breaking and entering a dwelling house and committing a serious indictable offence, namely malicious wounding. The offence occurred on 20 March 2007 when the appellant entered the victim's home uninvited, refused to leave, picked up a knitting needle, and struck the victim several times, causing puncture wounds to her upper arm, cheek, and neck. The victim's injuries were treated with antibiotics and did not affect any internal organs.

The appellant was 33 years old at sentencing and was developmentally disabled, with a cognitive functioning level in the bottom three per cent of the population. He had never held paid employment, had a significant history of alcohol and drug misuse, and had an extensive criminal record including prior offences of breaking and entering, malicious wounding, and aggravated sexual assault. He had been released from custody just 12 days before committing the present offence, without any supervisory conditions.

Acting Judge Woods sentenced the appellant to a total of six years' imprisonment, comprising a non-parole period of three years and six months and a balance term of two years and six months. The appellant sought leave to appeal, contending that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offence as above the middle of the range for offences under s 112(3) of the Crimes Act
  • Whether the sentencing judge impermissibly confined his sentencing discretion by treating the standard non-parole period as a starting point or de facto minimum, rather than as a reference point
  • Whether the resulting sentence was manifestly excessive in all the circumstances

Decision

James J (with whom McClellan CJ at CL and Adams J agreed) found that the sentencing judge had erred in characterising the offence as above the mid-range of objective seriousness for offences under s 112(3) of the Crimes Act. Several features placed it considerably below the midpoint: the breaking consisted of opening a closed door in the presence of witnesses; the weapon was a household knitting needle rather than a weapon brought to the scene; the physical injuries were minor; and the attack lasted only a short time before the appellant left.

The Court also found that the sentencing judge had impermissibly treated the standard non-parole period of seven years as though it were a floor or minimum for the offence, rather than using it as a reference point or benchmark as required by the approach confirmed in cases such as R v Way. Because the offence fell considerably below the mid-range, there were plainly reasons to depart below the standard non-parole period, and the judge's treatment of it as a near-mandatory starting point was a legal error that distorted the exercise of the sentencing discretion.

Taking into account the objective circumstances of the offence, the appellant's intellectual disability and its relevance to general deterrence, his guilty plea, his criminal history, and the community protection considerations, James J assessed a head sentence of five years as appropriate. Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act were found to exist, given the appellant's immediate reoffending upon unstructured release and his clear need for extended supervision upon release from the present sentence. A non-parole period of two and a half years and a balance term of two and a half years were substituted accordingly.

Orders Made

  • Leave to appeal against the sentence imposed by Acting Judge Woods granted.
  • Appeal against sentence allowed.
  • Sentence quashed and replaced with a non-parole period of two and a half years commencing 25 March 2007 and expiring 24 September 2009, and a balance of term of two and a half years.
  • The earliest date for eligibility for release on parole was 24 September 2009.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the standard non-parole period under s 112(3) of the Crimes Act functions as a reference point or benchmark, not as a floor or de facto minimum, and treating it as the latter constitutes a legal error that vitiates the sentencing exercise.
  • Where an offence falls considerably below the mid-range of objective seriousness, reasons for departing downward from the standard non-parole period will exist, and a sentencing judge must give genuine effect to those reasons rather than treating the standard as a practical starting point.
  • An accused's developmental disability and low intellectual functioning are relevant to the weight to be given to general deterrence in sentencing, though the need to protect the community remains a live consideration where there is a history of violent offending.
  • Special circumstances justifying a longer parole period may be established where an offender was released from prior custody without supervision and reoffended almost immediately, pointing to a need for extended post-release oversight.
  • Minor physical injuries, the use of an opportunistically obtained household implement, and the absence of any weapon brought to the scene are all factors capable of placing a serious offence well below the mid-range of objective seriousness for the relevant offence category.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(3) (specially aggravated breaking and entering)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 44(2)
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 11, 23

Cases
- R v Way (2004) 60 NSWLR 168
- Veen v The Queen (No 2) (1987-1988) 164 CLR 465
- Mulato v R [2006] NSWCCA 282
- Vu v R [2006] NSWCCA 188