NSW Caselaw
New South Wales Court of Criminal Appeal
CITATION: R v Smith [2005] NSWCCA 286
HEARING DATE(S): 22 July 2005
JUDGMENT DATE: 23 August 2005
JUDGMENT OF: Brownie AJA at 1; Buddin J at 2; Latham J at 3
DECISION: Appeal Dismissed
CATCHWORDS: Crown appeal - Maliciously inflict grievous bodily harm on child - insufficient weight attached to breach of trust and failure to seek medical care.
s 35(1)(b) of the Crimes Act 1900 s 54 of the Crimes Act 1900 LEGISLATION CITED: s 228 of the Children and Young Persons (Care and Protection) Act 1998 s 21A of the Crimes (Sentencing Procedure) Act 1999
R v Coleman (1990) 19 NSWLR 467; 47 ACrimR 306; R v Stokes and Difford (1990) 51 ACrimR 25; R v Livingstone [2004] NSWCCA 122). CASES CITED: R v Hooper [2004] NSWCCA 10, The Queen v De Simoni (1981) 147 CLR 383 R v Allpass (1993) 72 ACrimR 561
DPP- Appellant L Smith - Respondent PARTIES:
FILE NUMBER(S): CCA 2005/778
J Girdham - Appellant COUNSEL: A Francis - Respondent
S Kavanagh - Appellant SOLICITORS: S O'Connor - Respondent
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 03/21/3264
LOWER COURT JUDICIAL OFFICER: Goldring J
IN THE COURT OF CRIMINAL APPEAL 2005/778
BROWNIE AJA BUDDIN J LATHAM J
23 AUGUST 2005 REGINA v LARRY SMITH Judgment 1 BROWNIE AJA: I agree with Latham J 2 BUDDIN J: I agree with Latham J 3 LATHAM J: The Director of Public Prosecutions appeals against the asserted inadequacy of a sentence imposed by his Honour Judge Goldring in the District Court at Campbelltown on 21 April 2005. On that day, the Respondent was sentenced to a total term of ten months imprisonment commencing 21 April 2005, with a non parole period of five months in respect of one count of maliciously inflicting grievous bodily harm, pursuant to s 35(1)(b) of the Crimes Act 1900. The maximum penalty for that offence is a term of seven years imprisonment. It should be noted that the Respondent pleaded guilty to count 2, which was expressed as an alternative to a count under s 33 of the Crimes Act. The plea of guilty was accepted in full discharge of the indictment. That indictment also contained a count that by negligent omission, the Respondent caused grievous bodily harm, contrary to s 54 of the Crimes Act. A further alternative count of failing to provide adequate and proper medical aid without reasonable excuse (contrary to s 228 of the Children and Young Persons (Care and Protection) Act 1998) was also included in the indictment. 4 The Crown presses four grounds on the appeal as follows:-
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