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Smith v The Queen

Smith v The Queen

Case [2020] VSCA 159 17 June 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0022

ANTHONY JOHN SMITH	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, KYROU and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 May 2020
DATE OF JUDGMENT:	17 June 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 159
JUDGMENT APPEALED FROM:	[2018] VSC 684 (Bell J)

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CRIMINAL LAW – Appeal – Sentence – Manslaughter – Guilty plea – Applicant non-consensually choked and strangled victim during consensual sexual activity – 13 years’ imprisonment with non-parole period of 10 years – Whether judge erred in characterising offending as ‘very serious example’ of manslaughter – Whether judge allowed applicant’s misogynistic views to overwhelm sentencing discretion – Whether sentence manifestly excessive – Application for leave to appeal refused – R v Boroviak [2018] VSC 793, Wan v The Queen [2019] VSCA 81, Director of Public Prosecutions v Ristevski [2019] VSCA 287, Vu v The Queen [2020] VSCA 59 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C K Wareham	Galbally & O’Bryan
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
KYROU JA
WEINBERG JA:

Introduction and summary

On 15 April 2015, the applicant killed Karen Rae (‘KR’) — whom he had met two days earlier — by strangling her with his hands during the course of consensual sexual activity. On 6 June 2018, he pleaded guilty to manslaughter, constituted by an unlawful and dangerous act.[1]
[1]The applicant pleaded guilty on the basis that the unlawful and dangerous act was strangling or choking KR during consensual sexual activity. We will generally refer to the applicant’s conduct as choking, but the cause of death as strangulation, that being the product of choking.

The maximum penalty for manslaughter is 20 years’ imprisonment. On 16 November 2018, the applicant was sentenced to 13 years’ imprisonment with a non-parole period of 10 years.[2]
[2]DPP v Smith [2018] VSC 684 (‘Sentencing remarks’).

The applicant seeks leave to appeal against sentence on three grounds. He contends, first, that the judge erred in characterising the offending as a ‘very serious example’ of the crime of manslaughter; second, that the judge erred in allowing the applicant’s ‘disrespectful, contemptuous and misogynistic views and opinions about women’ to overwhelm the proper exercise of the sentencing discretion; and, third, that the sentence and non-parole period are manifestly excessive.

For reasons which follow, we would refuse leave to appeal. There was no specific error and the sentence of 13 years’ imprisonment, although stern, was within the range reasonably open to the sentencing judge in the circumstances of the case.

This was very grave offending indeed. As appears from proposed ground 2, there was uncontested evidence before the judge that the applicant had expressed ‘disrespectful, contemptuous and misogynistic views and opinions’ about women. In his Honour’s view, the circumstances of KR’s death demonstrated what language of that kind can lead to:

It dehumanises women, blames them for male violence, normalises the abuse of…

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 159
Case: [2020] VSCA 159
Decision Date: 17 June 2020

CaseChat Overview and Summary

In the case of Smith v The Queen, the applicant appealed against his sentence for manslaughter, contending that the trial judge erred in characterising the offending as a 'very serious example' of manslaughter and that the judge's sentencing discretion was unduly influenced by the applicant's misogynistic views. The applicant had pleaded guilty to the manslaughter of his victim, who he non-consensually choked and strangled during consensual sexual activity. The trial judge imposed a sentence of 13 years’ imprisonment with a non-parole period of 10 years. The applicant argued that the sentence was manifestly excessive and sought leave to appeal against the sentence.

The central legal issues for the court to determine were whether the trial judge had erred in characterising the offending as a 'very serious example' of manslaughter and whether the judge's sentencing discretion had been influenced by the applicant's misogynistic views. The applicant submitted that the trial judge had failed to consider the circumstances in which the offending took place and had not adequately taken into account the applicant's guilty plea and remorse.

The Court of Appeal found no basis to interfere with the trial judge's assessment that the offending was a'very serious example' of manslaughter. The court held that the judge had carefully considered the circumstances of the case and had not allowed any personal views to influence the sentence. The court found that the sentence was within the range of sentences that could be considered appropriate for the offence of manslaughter in these circumstances. The application for leave to appeal was refused, and the original sentence was upheld. The case law of R v Boroviak, Wan v The Queen, Director of Public Prosecutions v Ristevski and Vu v The Queen was considered in reaching the decision.

Orders