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:
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:
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)]
10 years’ imprisonment with a non-parole period of 8 years
Other orders:
· Forensic sample order
· Disposal order
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.
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.
In order to understand the significance of the matters dealt with by the sentencing judge and the…
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.
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Details
AGLC
Smith v The Queen [2014] VSCA 268
Case
[2014] VSCA 268
Decision Date
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.