Smith v The Queen

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.