NSW Caselaw
New South Wales Court of Criminal Appeal
CITATION: R v Smith [2007] NSWCCA 100
HEARING DATE(S): 30 March 2007
JUDGMENT DATE: 12 April 2007
JUDGMENT OF: Simpson J at 1; Howie J at 70; Hislop J at 71
DECISION: Appeal allowed; sentences quashed; respondent resentenced as follows: Count 1 (taking into account the Form 1 offences): a fixed term of two years and nine months, commencing on 8 December 2005 and expiring on 7 September 2008; Counts 2 and 3: a fixed term of imprisonment for three years, commencing on 8 March 2006 and expiring on 7 March 2009; Counts 4 and 5: a fixed term of imprisonment for three years and three months, commencing on 8 June 2006 and expiring on 7 September 2009; Count 6: imprisonment with a non-parole period of three years and three months, commencing on 8 June 2006 and expiring on 7 September 2009, with a balance of term of one year and nine months, expiring on 7 June 2011.
CATCHWORDS: CRIMINAL LAW - Crown appeal against sentences - six counts on indictment - four Form 1 offences - assault with intent to rob whilst in company - robbery in company - Henry guideline - pleas of guilty - subjective circumstances - multiplicity of offences - five offences committed whilst on bail - four offences involved gratuitous actual violence - discount for pleas of guilty - double counting - statutory proportions between head sentence and non-parole period - sequential offending - need for some accumulation - jurisdiction of Court of Criminal Appeal to resentence on Crown appeal - patent error alone insufficient - need to show sentence manifestly inadequate - comparison with sentences imposed in unrelated but parallel cases - Court's discretion to dismiss Crown appeal where error established - onus on respondent - parity with co-offenders - sentences outside range legitimately available - resentencing - principles applicable to resentencing after Crown appeal - youth of respondent - short duration of time over which offending occurred - fixed terms in respect of five offences - no useful purpose served by specifying non-parole period in relation thereto
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