Smith v The Queen - [2018] VSCA 258

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0061

JENNI MARGARET SMITH

THE QUEEN

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JUDGES:	KAYE and T FORREST JJA and TAYLOR AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 October 2018
DATE OF JUDGMENT:	12 October 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 258 First Revision: 20 February 2019
JUDGMENT APPEALED FROM:	DPP v Smith (Unreported, County Court of Victoria, Judge Stuart, 23 February 2018)

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CRIMINAL LAW – Appeal against conviction – Applicant convicted of three charges of sexual penetration of a child under 16 years and two charges of indecent act with a child under 16 years – Whether verdicts of guilty unreasonable or cannot be supported by the evidence – Whether jury must have entertained a reasonable doubt as to the veracity of the complainant’s evidence – Whether substantial miscarriage of justice occurred – Whether note written by complainant outlining abuse admissible – Whether admitted by error - Application for leave to appeal against conviction refused.

CRIMINAL LAW – Appeal against sentence – Pleaded not-guilty – Applicant sentenced to six years nine months’ imprisonment with a non-parole period of three years nine months – Whether sentencing judge erred in making orders for cumulation that were manifestly excessive – Whether total effective sentence manifestly excessive – Whether sentencing judge treated lack of remorse and lack of regard by applicant for consequences of offending as aggravating factors.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Ginsbourg	Dribbin & Brown Criminal Lawyers
For the Respondent	Mr C B Boyce SC and Ms D Karamicov	Mr J Cain, Solicitor for Public Prosecutions

KAYE JA

T FORREST JA
TAYLOR AJA:

Following a trial in the County Court, the applicant was convicted of three charges of sexual penetration of a child under 16 years and two charges of indecent act with a child under 16 years. She was sentenced to a total effective term of imprisonment of 6 years and 9 months, with a non-parole period of 3 years and 9 months. That sentence was constituted as follows:

Charge on Indictment F13915986.2	Offence	Maximum	Sentence	Cumulation
1	Sexual Penetration of a Child Under 16 (aged between 10 and 16 years) [contrary to s 45(1) Crimes Act 1958 (Vic)]	15 years’[1] imprisonment [s 45(2) Crimes Act 1958 (Vic)]	3 years and 6 months’ imprisonment	18 months
2	Indecent Act with Child Under 16 [contrary to s 47(1) Crimes Act 1958 (Vic)]	10 years’ imprisonment [s 47(1) Crimes Act 1958 (Vic)]	1 year imprisonment	3 months
3	Sexual Penetration of a Child Under 16 (aged between 10 and 16 years) [contrary to s 45(1) Crimes Act 1958 (Vic)]	15 years’1 imprisonment [s 45(2) Crimes Act 1958 (Vic)]	3 years and 6 months’ imprisonment	18 months
4	Indecent Act with Child Under 16 [contrary to s 47(1) Crimes Act 1958 (Vic)]	10 years’ imprisonment [s 47(1) Crimes Act 1958 (Vic)]	6 months’ imprisonment	Nil
5	Sexual Penetration of a Child Under 16 (aged between 10 and 16 years) [contrary to s…

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 [2018] VSCA 258
Case: [2018] VSCA 258
Decision Date: 12 October 2018

CaseChat Overview and Summary

In the matter of Smith v The Queen, the applicant appealed against his conviction and sentence, following his conviction on three charges of sexual penetration of a child under 16 years and two charges of indecent act with a child under 16 years. The High Court of Australia was tasked with determining the validity of the appeal against conviction and sentence. The legal issues before the Court were whether the verdicts of guilty were unreasonable or not supported by the evidence, whether the jury must have entertained a reasonable doubt as to the veracity of the complainant's evidence, whether a substantial miscarriage of justice occurred, whether a note written by the complainant outlining the abuse was admissible, and whether the note was admitted by error. The Court also examined whether the sentencing judge erred in making orders for cumulation that were manifestly excessive, whether the total effective sentence was manifestly excessive, and whether the sentencing judge treated the lack of remorse and lack of regard by the applicant for the consequences of the offending as aggravating factors.

The Court held that the appeal against conviction was without merit and was refused. The Court found that the evidence was sufficient to support the jury's verdicts of guilty and that no substantial miscarriage of justice had occurred. The Court also held that the note written by the complainant was admissible and that its admission did not result in a miscarriage of justice. Furthermore, the Court found that the sentencing judge did not err in making orders for cumulation or in treating the lack of remorse and lack of regard by the applicant for the consequences of the offending as aggravating factors. The Court held that the sentence imposed was not manifestly excessive.

The Court ultimately dismissed the appeal against conviction and sentence. The conviction and sentence of the applicant, Smith, were upheld by the Court.

Orders