Smith v The Queen - [2020] VSCA 165

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0101

COREY SMITH	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 June 2020
DATE OF JUDGMENT:	19 June 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 165
JUDGMENT APPEALED FROM:	DPP v Smith [2020] VCC 480 (Judge Tinney)

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CRIMINAL LAW – Appeal – Sentence – Home invasion, aggravated recklessly exposing an emergency worker to risk by driving and other offences – Total effective sentence three years, two months and 21 days’ imprisonment with non-parole period of 18 months – Impaired mental functioning – Whether judge erred when assessing applicant’s moral culpability – Category 2 offences – Leave to appeal refused – Sentencing Act 1991 s 5(2H) – Muldrock v The Queen (2011) 244 CLR 120; R v Verdins (2007) 16 VR 269.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Connolly	Patrick W Dwyer
For the Respondent	Ms E H Ruddle	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KYROU JA:

Introduction

On 2 April 2020, the applicant, aged 27 years,[1] pleaded guilty before a judge in the County Court to a number of charges, two of which — home invasion[2] (charge 4) and aggravated recklessly exposing an emergency worker to risk by driving[3] (charge 7) — were a category 2 offence for the purposes of the Sentencing Act 1991 (‘the Act’).[4]
[1]His date of birth is 4 August 1992.
[2]Crimes Act 1958, s 77A. The maximum penalty is 25 years’ imprisonment.
[3]Crimes Act 1958, s 317AF(1)(a). The maximum penalty is 10 years’ imprisonment.
[4]If an offence is a category 2 offence, the provisions of s 5(2H) of the Act are engaged.

The other charges on the indictment were attempted theft[5] (charge 1); theft[6] (three charges – charges 2, 3 and 6); burglary[7] (charge 5); and handling stolen goods[8] (charge 8). The applicant also pleaded guilty to summary charges of failing to stop a vehicle on police request[9] and unlicensed driving.[10]
[5]Crimes Act 1958, ss 74 and 321M. The maximum penalty is five years’ imprisonment.
[6]Crimes Act 1958, s 74. The maximum penalty is 10 years’ imprisonment.
[7]Crimes Act 1958, s 76. The maximum penalty is 10 years’ imprisonment.
[8]Crimes Act 1958, s 88. The maximum penalty is 15 years’ imprisonment.
[9]Road Safety Act 1986, s 64A. The maximum penalty is 60 penalty units or 6 months’ imprisonment.
[10]Road Safety Act 1986, s 18(1)(a). The maximum penalty is 60 penalty units or 6 months’ imprisonment.

Following a plea, on 24 April 2020 the judge sentenced the applicant to a total effective sentence of three years, two months and 21 days’ imprisonment, and fixed a non-parole period of 18 months, in accordance with the following table:

Charge Offence Sentence Cumulation

1 Attempted theft 6 months 2 months

2 Theft 8 months 2 months

3 Theft 10 months 3 months

4 Home invasion

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 Smith v The Queen

Details

AGLC: Smith v The Queen [2020] VSCA 165
Case: [2020] VSCA 165
Decision Date: 19 June 2020

CaseChat Overview and Summary

The appellant, Smith, appealed against his sentence following his conviction for a series of serious criminal offences, including home invasion, aggravated recklessly exposing an emergency worker to risk by driving, and other related charges. The trial judge sentenced Smith to a total effective term of imprisonment of three years, two months, and 21 days, with a non-parole period of 18 months. The appeal was heard by the court of appeal, which considered whether the trial judge erred in assessing the appellant’s moral culpability, particularly in light of his impaired mental functioning at the time of the offences.

The central legal issue before the court was whether the trial judge had correctly assessed Smith’s moral culpability in sentencing him, taking into account his impaired mental functioning. The court was required to determine whether the sentence imposed was appropriate and whether there was any error in the judge’s assessment of the mitigating factors, particularly those related to the appellant's mental state. Additionally, the court examined whether the sentence was within the range of penalties that could be considered appropriate for the seriousness of the offences committed.

In its judgment, the court noted that the trial judge had carefully considered Smith’s mental health issues and other mitigating factors, such as his early guilty plea and remorse. The court held that the trial judge was correct in concluding that Smith’s impaired mental functioning did not significantly reduce his moral culpability. The court found that the sentence imposed was within the appropriate range for the seriousness of the offences and that there was no error in the judge's assessment of the mitigating factors. Accordingly, the court dismissed the appeal and upheld the sentence imposed by the trial judge.

The court of appeal refused Smith leave to appeal against the sentence. The appeal was dismissed, and the original sentence was upheld. The court found that the trial judge had appropriately considered all relevant factors, including Smith’s mental health issues, in determining the appropriate sentence.

Orders