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DPP v Smeaton

DPP v Smeaton

Case [2007] VSCA 256 15 November 2007

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 195 of 2007

DIRECTOR OF PUBLIC PROSECUTIONS
	v
SHEM SMEATON

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JUDGES:	MAXWELL P, NETTLE and DODDS-STREETON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 November 2007
DATE OF JUDGMENT:	15 November 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 256	1^ST REVISION, 28 NOVEMBER 2007

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CRIMINAL LAW – Sentencing – Crown appeal – Intentionally causing serious injury – Manifest inadequacy – Respondent long term drug user – Offence committed while on bail – Respondent re-sentenced to a term of five years’ imprisonment with a non-parole period of three years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Ms A Cannon, Solicitor for Public Prosecutions
For the Respondent	Mr P F Tehan QC with Mr T Kassimatis	Patrick W Dwyer & Associates

MAXWELL P:

I will invite Nettle JA to deliver the first judgment.

NETTLE JA:

This is an appeal by the Director of Public Prosecutions against a sentence of three years' imprisonment, with a non-parole period of 20 months, imposed on the respondent on pleading guilty to one count of intentionally causing serious injury. The maximum penalty for the offence of intentionally causing serious injury is 20 years' imprisonment.

The facts

The respondent was born on 27 June 1975 and at the time of the commission of the offence on 14 September 2006 he was 31 years of age. The victim of the offence was a 23-year-old woman who, at one time at least, had been the respondent's girlfriend. The offence occurred in the Footscray Mall after the respondent had seen the victim there and approached her. He asked her whether she was there to buy heroin and she replied that she was not. The respondent immediately became abusive and aggressive, saying that she should help him for the help he had given her on occasions in the past. He punched her to the head and when she fell to the ground he kicked her whilst she was on the ground. The kicking was repeated and according to eye witnesses the respondent appeared to line up the victim's head and kick it like a football. One onlooker described the attack as ‘vicious and cowardly’ and another as ‘one of the worst senseless acts I have seen’. It was conceded that the motive for the attack was the respondent's anger at the victim's refusal to assist him to ‘score’ heroin.

The victim lost consciousness and then the respondent ordered one of her friends to pick her up. When the friend was unable to do so alone, the respondent and the friend picked up the victim and took her to a medical centre in the mall. The respondent kissed the victim then and said that he was sorry for what he had done. But when police later arrived he tried to avoid them. After a while, he was located and taken into custody but initially he denied assaulting the victim and he was violent and uncooperative to the point where…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Smeaton

Details

AGLC: DPP v Smeaton [2007] VSCA 256
Case: [2007] VSCA 256
Decision Date: 15 November 2007

CaseChat Overview and Summary

In the case of the Director of Public Prosecutions v Smeaton, the respondent was convicted for intentionally causing serious injury to another person. The Crown appealed against the original sentence of two years and six months' imprisonment, arguing it was manifestly inadequate. Smeaton had a history of drug abuse and the offence was committed while he was on bail for another matter. The matter was heard in the Court of Appeal, which reviewed the original sentence and re-sentenced Smeaton to a term of five years' imprisonment, with a non-parole period of three years.

The primary legal issue before the Court was whether the original sentence imposed on Smeaton was manifestly inadequate. The Crown argued that the original sentence did not reflect the seriousness of the offence, Smeaton's history of drug abuse, and the fact that the offence was committed while he was on bail. The Court had to determine whether the original sentence was so lenient as to shock the conscience of the community. Additionally, the Court had to consider whether the sentence appropriately balanced the principles of denunciation, deterrence, and rehabilitation.

The Court of Appeal found that the original sentence was manifestly inadequate, taking into account the seriousness of the offence, Smeaton's history of drug abuse, and the fact that the offence was committed while he was on bail for another matter. The Court noted that the original sentence did not adequately reflect the community's expectation of punishment for such a serious offence. In re-sentencing Smeaton, the Court imposed a term of five years' imprisonment with a non-parole period of three years, which it considered to be a more appropriate sentence that balanced the principles of denunciation, deterrence, and rehabilitation.

In conclusion, the Court of Appeal quashed the original sentence and re-sentenced Smeaton to a term of five years' imprisonment with a non-parole period of three years. The Court found that the original sentence was manifestly inadequate and did not reflect the community's expectations of punishment for the offence committed. The re-sentence imposed by the Court appropriately balanced the principles of denunciation, deterrence, and rehabilitation, taking into account Smeaton's history of drug abuse and the circumstances in which the offence was committed.

Orders