Casenotes - Regina v. Brendan Kelly Smith

This casenote explores an important decision by the NSW Court of Criminal Appeal in relation to the sentence of home detention. The respondent to the Crown Appeal pleaded guilty to a charge of dangerous driving causing death and the District Court judge sentenced him to 8 months imprisonment to be served by way of home detention. The Crown Appeal was based on the grounds that the sentence was manifestly inadequate and that a sentence of home detention was not commensurate with the criminality involved in the offending. The appeal was allowed on the basis of manifest inadequacy and the respondent re-sentenced to 16 months imprisonment to be served by way of home detention. As to the nature of home detention as a punishment, by a majority of 2:1 the CCA (leading judgment of Grove J) held that it is equivalent to full time imprisonment and is effectively a collateral order that is not to be used in assessing the adequacy of punishment. The partial dissent of Smart J characterises home detention as 'substantially less onerous' than a full time custodial sentence and provides cogent arguments for a hierarchical structure of sentencing options rather than the literal approach to the construction of the provisions in the Act by the majority.