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Nathan Smith v The Queen

Nathan Smith v The Queen

Case [2022] VSCA 148 29 July 2022

Appeal

Aggravated & Exemplary Damages

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2021 0157

NATHAN SMITH	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 July 2022
DATE OF JUDGMENT:	29 July 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 148
JUDGMENT APPEALED FROM:	DPP v Smith [2021] VCC 1150 (Judge Hannebery)

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CRIMINAL LAW – Appeal – Sentence – Aggravated offence of intentionally exposing emergency workers to risk by driving and associated charges – Guilty plea – Sentenced to 4 years and 9 months’ imprisonment with non-parole period of 3 years and 3 months – Whether judge sentenced on incorrect factual basis – Whether judge wrongly characterised the seriousness of the offence as greater than mid-range – Whether in finding that offence represented a ‘serious example’ the judge denied the applicant procedural fairness – Whether principle of totality offended – Whether sentence manifestly excessive – Leave to appeal refused – DPP v Weybury (2018) 84 MVR 153; Jaeger v The Queen (2020) 92 MVR 95 considered.

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Counsel
Applicant:		Mr S Andrianakis
Respondent:		Ms D Piekusis QC
Solicitors
Applicant:	Emma Turnbull Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
MACAULAY JA:

Introduction

Nathan Smith, the applicant, now aged 36 years,[1] pleaded guilty before a judge in the County Court on 12 August 2021 to the aggravated offence of intentionally exposing an emergency worker to risk by driving[2] (charge 2); theft of a motor vehicle[3] (charge 1); damaging property[4] (charges 3 and 4); being a prohibited person in possession of a firearm[5] (charge 5); and possessing a drug of dependence[6] (charges 6, 7 and 8). He also pleaded guilty to the related summary offences of unlicensed driving (summary charge 72);[7] fraudulent use of number plates (summary charge 73);[8] possessing cartridge ammunition without a permit (summary charge 76);[9] possessing a controlled weapon (summary charge 77);[10] driving whilst exceeding the prescribed concentration of drugs (summary charge 82);[11] and wilfully damaging property (summary charge 84).[12]
[1]His date of birth is 13 November 1985.
[2]Crimes Act 1958, s 317AD(1)(a). The maximum penalty is 20 years’ imprisonment.
[3]Crimes Act 1958, s 74(1). The maximum penalty is 10 years’ imprisonment.
[4]Crimes Act 1958, s 197(1). The maximum penalty is 10 years’ imprisonment.
[5]Firearms Act 1996 , s 5. The maximum penalty is 10 years’ imprisonment or 1200 penalty units.
[6]Drugs, Poisons and Controlled Substances Act 1981, s 73(1). The maximum penalty is one year’s imprisonment or 30 penalty units.
[7]Road Safety Act 1986, s 18(1A). The maximum penalty is six months’ imprisonment or 60 penalty units.
[8]Road Safety Act 1986, s 72(1A). The maximum penalty is six months’ imprisonment or 60 penalty units.
[9]Firearms Act 1996, s 124(1). The maximum penalty is 40 penalty units.
[10]Control of Weapons Act 1990, s 6(1). The maximum penalty is one year’s imprisonment or 120 penalty units.
[11]Road Safety Act 1986, s 49(3AAA). The…

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 Nathan Smith v The Queen

Details

AGLC: Nathan Smith v The Queen [2022] VSCA 148
Case: [2022] VSCA 148
Decision Date: 29 July 2022

CaseChat Overview and Summary

Nathan Smith has appealed against his conviction and sentence for intentionally exposing emergency workers to risk by driving a vehicle and associated charges. The case was heard in the Court of Appeal where Smith argued that the primary judge sentenced him on an incorrect factual basis, wrongly characterised the seriousness of the offence as greater than mid-range, denied him procedural fairness, and that the principle of totality was offended. Additionally, Smith contended that the sentence was manifestly excessive.

The legal issues before the court involved the interpretation and application of sentencing principles in relation to the seriousness of the offence, procedural fairness, the principle of totality, and whether the sentence was manifestly excessive. The court considered whether the primary judge erred in his assessment of the facts and the characterisation of the offence. The court also examined if the judge denied Smith procedural fairness by finding that the offence represented a ‘serious example’ and whether the sentence breached the principle of totality.

The court found that the primary judge did not err in his assessment of the facts and characterisation of the offence. The court held that the judge was entitled to find that the offence represented a ‘serious example’ and that this did not deny Smith procedural fairness. The court also found that the sentence did not breach the principle of totality and was not manifestly excessive. The court noted that the sentencing judge considered all relevant factors and provided adequate reasons for the sentence. The appeal was dismissed, and leave to appeal was refused.

No further orders were made by the court.

Orders