Smith v The Queen

Case [2014] VSCA 268


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0044

NATHAN SMITH
v
THE QUEEN

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JUDGES: NEAVE and WHELAN JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 11 August 2014
DATE OF JUDGMENT: 27 October 2014
MEDIUM NEUTRAL CITATION: [2014] VSCA 268
JUDGMENT APPEALED FROM: DPP v Smith (Unreported, County Court of Victoria, Judge Hampel, 19 February 2014)

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CRIMINAL LAW — Appeal — Sentence — Incitement to kidnap — Offender incited young girlfriend to kidnap female acquaintance with knife — Sexual motivation — Sadistic torture implements prepared — Head sentence 7 years with non-parole period of 5 years — Whether manifestly excessive — Potentially comparable cases involving incitement and sexually-motivated offending considered — Whether error in treatment of circumstances of offending — R v De Simoni (1981) 147 CLR 383 considered — Appeal dismissed.

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APPEARANCES: Counsel Solicitors
For the Appellant Mr J McLoughlin Victoria Legal Aid
For the Respondent Mr D A Trapnell QC Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

  1. I have had the advantage of reading the draft reasons of Whelan JA.  I agree with the orders he proposes for the reasons he gives.

WHELAN JA:   

  1. On 20 May 2013 the appellant, Nathan Smith, pleaded guilty to one count of incitement to kidnap and one count of failing to answer bail.  For reasons I will address, the plea hearing was not held until 11 February 2014.  On 19 February 2014 the following sentence was imposed on him:

Charge on Indictment Offence Maximum Sentence Cumulation
1 Incitement to kidnap [Crimes Act 1958 s 321G(1)(c)] 25 years [Crimes Act 1958 ss 321I(1)(a) and 320] 7 years Base
Summary charge Fail to answer bail [Bail Act 1977 s 30(1)] 12 months 3 months 3 months
Total Effective Sentence: 7 years and 3 months’ imprisonment
Non-Parole Period: 5 years
Pre-sentence Detention Declared: 42 days
6AAA Statement: 10 years’ imprisonment with a non-parole period of 8 years

Other orders:

·    Forensic sample order

·    Disposal order

  1. On 4 June 2014 the appellant was given leave to appeal his sentence on two grounds.  The first ground is that the sentence was manifestly excessive having regard to the plea of guilty;  the appellant’s youth, personal background and antecedents;  the delay;  and current sentencing practices.  The second ground is that the sentencing judge erred in her treatment of the circumstances of the offence.

  1. The offence of incitement to kidnap was committed between 12 November 2010 and 16 November 2010.  The person the appellant incited to undertake the kidnapping was his girlfriend and fiancé at the time, who the sentencing judge referred to by the pseudonym ‘Natalie’.  The person she was incited to kidnap was a female acquaintance of theirs who worked at a fast food restaurant regularly visited by the appellant and his fiancé.  The sentencing judge referred to her by the pseudonym ‘Erica’.  I will use the same pseudonyms.

  1. In order to understand the significance of the matters dealt with by the sentencing judge and the…

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Smith v The Queen [2014] VSCA 268
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[2014] VSCA 268
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CaseChat Overview and Summary

Smith appealed against his conviction and sentence for incitement to kidnap, where he incited his young girlfriend to kidnap a female acquaintance armed with a knife. The sexual motivation behind the offence was evident, as sadistic torture implements were prepared. Smith was sentenced to a head sentence of seven years with a non-parole period of five years. The appeal questioned whether this sentence was manifestly excessive and if there was an error in the treatment of the circumstances of the offending.

The court needed to decide whether the sentence was manifestly excessive and whether there was any error in the treatment of the circumstances of the offending. The appeal hinged on the principle established in R v De Simoni, which sets out the criteria for determining whether a sentence is manifestly excessive. The court had to consider potentially comparable cases involving incitement and sexually-motivated offending to assess the appropriateness of the sentence.

The appeal was dismissed. The court found that the sentence was not manifestly excessive and there was no error in the treatment of the circumstances of the offending. The court considered the severity of the incitement and the sexual motivation behind the offence, along with the preparedness of the instruments of torture. The comparison with other cases involving incitement and sexually-motivated offending did not lead to a conclusion that the sentence was manifestly excessive. The sentencing judge had appropriately considered the circumstances of the offending and the need for deterrence and denunciation. The court found no basis for the appeal to succeed.

The appeal was dismissed, and the original sentence of seven years with a non-parole period of five years was upheld. The court found that the sentence was appropriate given the nature and circumstances of the offence, and there was no error in the treatment of the circumstances of the offending. The appeal did not demonstrate that the sentence was manifestly excessive, and the sentence remained valid.

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