Smith v R [2022] NSWCCA 88

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Smith v R [2022] NSWCCA 88 Hearing dates: 3 February 2022 Date of orders: 3 February 2022 Decision date: 22 April 2022 Before: Johnson J at [1]; Harrison J at [2]; Fagan J at [3] Decision: 1. Leave is granted to the Applicant to proceed on the application filed out of time. 2. Leave to appeal is granted. 3. The appeal against sentence is allowed. 4. The aggregate sentence imposed by her Honour Judge Shead SC on 4 September 2020 is quashed. 5. In lieu thereof, the Applicant is sentenced to an aggregate term of imprisonment of 2 years and 4 months with a non-parole period of 1 year and 5 months commencing on 4 September 2020 and expiring on 3 February 2022 with a balance of term of 11 months expiring on 3 January 2023. 6. The Applicant is entitled to be released on parole on 4 February 2022. 7. The indicative sentence for Sequence 1 is 12 months with a non-parole period of 7 months. 8. The indicative sentence for Sequence 8 (taking into account the Form 1) is 1 year and 10 months with a non-parole period of 13 months. 9. The indicative sentence for Sequence 10 (taking into account the Form 1) is 1 year and 10 months with a non-parole period of 13 months. Catchwords: CRIME – appeals – appeal against sentence – applicant sentenced for sexual offences committed against 14-15 year old student – where applicant was a physical education teacher – explicit material exchanged on Snapchat – touching on the outside of clothing – where the applicant's borderline personality disorder materially contributed to the commission of the offending – sentence manifestly excessive – weight to be afforded to the promotion of rehabilitation of the applicant – error in taking into account in relation to one offence a standard non-parole period that had ceased to be applicable Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Chartres-Abbott v R [2021] NSWCCA 239 Clarkson v The Queen; EJA v The Queen (2011) 32 VR 361; [2011] VSCA 157 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 Fisher (1989) 40 A Crim R 442 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Ibbotson v R [2020] NSWCCA 92 MH v R [2011] NSWCCA 230 NT v R [2007] NSWCCA 143 Obeid v R (2017) 96 NSWLR 155;[2017] NSWCCA 221 R v ABS [2005] NSWCCA 255 R v CMB [2014] NSWCCA 5 R v G [2008] UKHL 37; [2009] 1 AC 92 R v Gavel [2014] NSWCCA 56 R v Van Ryn [2016] NSWCCA 1 SW v R [2013] NSWCCA 255 Category: Principal judgment Parties: Katie Smith - applicant Regina - respondent Representation: Counsel: G Lewer with D Mulligan - applicant E Wilkins SC - respondent