R v James Duncan SMITH [2009] NSWDC 414

New South Wales District Court

CITATION: R v James Duncan SMITH [2009] NSWDC 414

JUDGMENT DATE: 28 August 2009

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: Total sentence of 14 years and 7 months imprisonment with a non-parole period of 11 years and 7 months.

CATCHWORDS: CRIMINAL LAW - sentence - convicted by jury trial - indecent assault - indecent assault in circumstances of aggravation - indecent assault on person under 10 - sexual intercourse with child under 10 - sexual intercourse without consent - some offences committed while on bail - offences involved breach of trust - limited degree of planning - offending opportunistic - likely to serve sentence in protective custody - dtandard non-parole periods fixed - no reasons to depart

LEGISLATION CITED: Crimes Act 1900 s 61J(1), 61M(2), s 66A(1) Crimes (Sentencing Procedure) Act 1999 s 21A, s 54B

CASES CITED: Fisher (1989) 40 A Crim R 442

PARTIES: Regina James Duncan Smith

FILE NUMBER(S): 2009/11/630

COUNSEL: Mr J Gibson Mr G Porter

JUDGMENT

1. James Duncan Smith was found guilty by a jury on 11 May 2009 of nine charges of sexual offences. I have heard evidence and submissions on the appropriate sentences to impose, and I am now embarking on the sentencing of Mr Smith.

2. First I should list what the charges for the offences were and the penalties which Parliament has attached to those offences.

3. Mr Smith was found guilty of committing an indecent assault on the victim between 1 May 2001 and 1 December 2002. That is an offence under s 61M(2) of the Crimes Act 1900 and has a maximum penalty of ten years fixed to it by Parliament. He was found guilty of having sexual intercourse with the same person, then a child aged under ten, during the same period. That offence is against s 66A(1) of the Crimes Act and carries a maximum of twenty years imprisonment.