Dwayne William SMITH v R [2011] NSWCCA 209

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Dwayne William SMITH v R [2011] NSWCCA 209 Hearing dates: 21 April 2011 Decision date: 09 September 2011 Jurisdiction: Common Law - Criminal Before: Basten JA at [1], RS Hulme J at [2] & Hidden J at [3] Decision: Leave to appeal granted, appeal allowed, sentence in District Court quashed. Taking into account the offence on the Form 1, applicant re-sentenced to a non-parole period of 3 years, commencing on 17 December 2009 and expiring on 16 December 2012, and a balance of term of 1 year and 3 months, commencing on 17 December 2012 and expiring on 16 March 2014. Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - break and enter with intent to commit serious indictable offence in circumstances of special aggravation - common assault on Form 1 - applicant motivated by revenge for offensive treatment of his mother - whether sentencing judge should have found special circumstances - adequacy of discount for plea of guilty - whether motive properly taken into account - sentence reduced Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bou-Antoun v Regina [2008] NSWCCA 1 R v Simpson [2001] NSWCCA 534, 53 NSWLR 704 R v Newman and Simpson [2004] NSWCCA 102, 145 A Crim R 361 R v Borkowski [2009] NSWCCA 102, 195 A Crim R 1 R v Swan [2006] NSWCCA 47 R v Craddock [2004] VSC 397 Category: Principal judgment Parties: Dwayne William Smith (applicant) Regina (respondent) Representation: Counsel W P Lowe (applicant) J Pickering (respondent) Solicitors M Rumore (applicant) S Kavanagh - Solicitor for Public Prosecutions (respondent) File Number(s): 2009/9222 Decision under appeal Date of Decision: 2010-02-19 00:00:00 Before: Colefax SC DCJ File Number(s): 2009/9222