Smith v The Queen - [2014] VSCA 241

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0158

GARY SMITH

Applicant

THE QUEEN

Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 October 2014
DATE OF JUDGMENT:	1 October 2014
MEDIA NEUTRAL CITATION:	[2014] VSCA 241
JUDGMENT APPEALED FROM:	DPP v Smith & Cooper (Unreported, County Court of Victoria, Judge Mason, 23 May 2014)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Perjury – Attempt to pervert the course of justice – Applicant of previous good character, with stable family and employment history, no prior convictions, early plea of guilty, demonstrated remorse and very good prospects of rehabilitation – Manifest excess – Sentence of 15 months with NPP of 9 months manifestly excessive in all the circumstances – Application granted and appeal allowed – Applicant resentenced to 12 months, with 8 months suspended.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Gurvich	Mark Ryan Legal GP
For the Crown	Mr R Gibson	Mr C Hyland, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

Introduction

On 20 May 2014, the applicant pleaded guilty in the County Court to one charge of perjury and one charge of attempting to pervert the course of justice. Following a plea hearing the applicant was sentenced as follows:

Charge on

Indictment

Offence

Maximum

Sentence

Cumulation

2. Perjury [s.314 Crimes Act 1958]
Level 4 imprisonment (15

years maximum) [s.314(1)
Crimes Act 1958]

12 months’

imprisonment
Base

3. Attempt to pervert the course of justice [Common law]
Level 2 imprisonment (25

years maximum) [s.320
Crimes Act 1958]

6 months’

imprisonment
3 months

Total Effective Sentence: 15 months’ imprisonment

Non-Parole Period: 9 months’ imprisonment

Pre-Sentence detention declaration pursuant to s

18(1) of the Sentencing Act 1991:
N/A

6AAA Statement: 20 months imprisonment with a non-parole period of 15 months.

The applicant seeks leave to appeal on a sole ground which contends that the sentence imposed upon him was manifestly excessive.

The offending

The charges the applicant pleaded guilty to relate to a police investigation of an armed robbery conducted by others to repossess a vehicle the ownership of which was in dispute among other individuals. The vehicle was seized during the armed robbery and driven away. At all relevant times the applicant possessed a key to the vehicle. The existence and possession of the vehicle’s keys was a matter of interest to the police officers who were tasked with the investigation of the armed robbery.

On 5 December 2012, following the armed robbery, the police took a formal written statement from the applicant as to his possession of one of the keys to the vehicle. The applicant signed this statement and acknowledged that it was made in the belief that a person making a false statement was liable to the penalties for perjury. The statement contained the following false information:

(a)the key that had been given to the applicant (‘the key’) was in the applicant’s work van at the premises 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 [2014] VSCA 241
Case: [2014] VSCA 241
Decision Date: 1 October 2014

CaseChat Overview and Summary

The case of Smith v The Queen involved the applicant appealing against a sentence imposed following a conviction for perjury and an attempt to pervert the course of justice. The decision was made by the High Court of Australia. The applicant, previously of good character with a stable family and employment history, had pleaded guilty early and demonstrated remorse. The trial judge imposed a sentence of 15 months imprisonment, with nine months to be served as a non-parole period.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive. The court examined the principles of sentencing in light of the applicant's background and the nature of the offences. The court considered the principle that a sentence should be proportionate to the offence and the offender, and whether the sentence imposed was excessive when compared to sentences for similar offences. The court also assessed whether the sentence took into account the applicant's prospects for rehabilitation and his demonstrated remorse.

The court found that the sentence of 15 months imprisonment, with nine months as a non-parole period, was manifestly excessive in all the circumstances. The court noted the applicant's previous good character, his stable family and employment history, his early plea of guilty, and his demonstrated remorse. The court considered these factors in light of the seriousness of the offences and concluded that a lesser sentence would be appropriate. The court allowed the appeal and resentenced the applicant to 12 months imprisonment, with eight months suspended.

Orders