Smith v R [2020] NSWCCA 181

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Smith v R [2020] NSWCCA 181 Hearing dates: 7 May 2020 Date of orders: 3 August 2020 Decision date: 03 August 2020 Before: Simpson AJA at [1]; Rothman J at [86]; Bellew J at [87]. Decision: 1. Leave to appeal against sentence is granted; 2. The appeal is allowed and the sentence imposed in the District Court is quashed; 3. In lieu thereof the applicant is sentenced to a non-parole period of imprisonment for 5 years, commencing on 13 June 2019 and expiring on 12 June 2024, with a balance of term of 2 years and 6 months which will expire on 12 December 2026. Catchwords: CRIME — appeals — appeal against sentence — manifest excess – manslaughter arising out of the manner in which motor vehicle was driven – applicant heavily intoxicated – comparable decisions of the New South Wales Court of Criminal Appeal used to demonstrate that the starting point, and, therefore, the sentence imposed, were so far out of line with the established pattern of sentencing as to be demonstrably manifestly excessive – after factoring in a 25% discount for plea of guilty, the starting point of 12 years was manifestly excessive CRIME — appeals — appeal against sentence — failure to take into account a relevant consideration – Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 571 – whether the sentencing judge failed to make an assessment of the applicant's moral culpability in the light of the evidence of her background – where applicant has a strong subjective case but the objective seriousness of the manslaughter offence was extreme Legislation Cited: Crimes (Appeal and Review) Act 2009 (NSW), s 68A Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2) Crimes Act 1900 (NSW) ss 18(1), 24, 52A Criminal Procedure Act 1986 (NSW), s 166 Drug (Misuse and Trafficking) Act 1985 (NSW), ss 10(1), 21 Road Transport Act 2013 (NSW), ss 110(5)(a), 111(1)(a) Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 571 Dang v R [2014] NSWCCA 47 Day v R [2014] NSWCCA 333; (2014) 69 MVR 103 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Duncan v R [2012] NSWCCA 78 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lawler v R [2007] NSWCCA 85; (2007) 169 A Crim R 415 Pham v R [2014] NSWCCA 115 R v Cameron [2005] NSWCCA 359; (2005) 157 A Crim R 70 R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198 R v Gordon (No 8) [2017] NSWSC 574 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 Woodbridge v R [2010] NSWCCA 185; (2010) 208 A Crim R 503 Category: Principal judgment Parties: Carly Renee Smith (Applicant) The Crown (Respondent) Representation: Counsel: R Khalilizadeh (Applicant) Dr D Kell SC/E Jones (Respondent)