Smith v The Queen - [2013] VSCA 219

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0002

DAVID CHRISTOPHER SMITH	Appellant
	V
THE QUEEN	Respondent

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JUDGES	BUCHANAN, NEAVE and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	19 August 2013
DATE OF JUDGMENT	30 August 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 219
JUDGMENT APPEALED FROM	DPP v Smith (Unreported, County Court Melbourne, Judge Hampel, 5 December 2012)

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Sentence appeal — Burglary — Criminal damage — Stalking — Destruction and desecration victim’s belongings — Threats — Writing on walls — Tarot cards — Text messages — Stalking over a period of two days — Manifest excess — Sentence outside range supplied by prosecution — Judge not bound to sentence within the prosecution range — Manifest excess not an occasion on which to re-argue the plea in mitigation — Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr T Danos	Cameron Marshall
For the Respondent	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Neave JA.

NEAVE JA:

The appellant, David Christopher Smith appeals against the individual sentences and total effective sentence imposed on him, following his guilty plea in the County Court to one count of burglary, one count of intentionally causing damage to property and one count of stalking with intent to cause physical harm. The sentences against which he appeals were as follows.[1]
[1]DPP v Smith (Unreported, Supreme Court of Victoria, Judge Hampel, 5 December 2012) (‘Sentencing Reasons’).

charge on indictment offence maximum sentence cumulation

1
Burglary

Crimes Act 1958 s 76(1)

10 years

Crimes Act 1958 s 76(3)
12 months None

2
Intentionally damage property

Crimes Act 1958 s 197(1)

10 years

Crimes Act 1958 s 197(1)
27 months Base

3
Stalking(intent to cause physical harm)

Crimes Act 1958 s 21A(1)

10 years

Crimes Act 1958 s 21A(1)
18 months 12 months

Total Effective Sentence: 3 years and 3 months

Non-Parole Period: 2 years and 1 month

Pre-sentence Detention Declared: 188 days

6AAA Statement: 6 years and 6 months imprisonment with the appellant becoming eligible for parole after serving 5 years of that sentence.

Other orders:

Forensic sample retention order pursuant to s 464ZFB(1) of the Crimes Act 1958

Disposal order pursuant to s 78(1) of the Confiscation Act 1997

Compensation order pursuant to s 86 of the Sentencing Act 1991 requiring the appellant to pay the victim $45,000.

The appellant was granted leave to appeal on the sole ground that the sentences imposed were manifestly excessive.[2]
[2]Smith v DPP (Unreported, Supreme Court of Victoria, Court of Appeal, Justice Osborn 15 May 2013) (‘Reasons of Osborn JA’). Leave was refused on three other grounds, which were that:
1) the sentencing judge erred in the finding she made relating to the events leading up to the offending,
2) the sentencing judge wrongly took account of speculative matters,
3) the sentencing judge wrongly rejected medical opinion evidence as to the applicant probable state of mind at the time of the offending.
The appellant…

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 [2013] VSCA 219
Case: [2013] VSCA 219
Decision Date: 30 August 2013

CaseChat Overview and Summary

The case of Smith v The Queen involved an appeal against sentence by the defendant, Smith, who had been convicted of burglary, criminal damage, stalking, and related offences. The matter was heard by the High Court of Australia. Smith's criminal activity included stalking a victim over a period of two days, resulting in extensive destruction and desecration of the victim's personal belongings, threats, writing on walls, use of tarot cards, and sending text messages. The primary issue for the court was whether the sentence imposed by the trial judge was manifestly excessive.

The court considered whether the sentence fell outside the range suggested by the prosecution and whether the trial judge was obligated to confine the sentence within that range. The court noted that while the trial judge is not bound to sentence within the range suggested by the prosecution, a sentence that is manifestly excessive may warrant review. However, the court emphasised that manifest excess is not an occasion to re-argue the plea in mitigation. The court examined the totality of the offending, the impact on the victim, and the need for deterrence and denunciation in determining whether the sentence was appropriate.

After thorough consideration, the court determined that the sentence was not manifestly excessive. The court upheld the trial judge's assessment of the appropriate sentence, taking into account the severity and nature of the offences, the impact on the victim, and the need for appropriate punishment and deterrence. The appeal was dismissed, affirming the original sentence imposed by the trial judge.

Orders