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…
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- AGLC
- Smith v The Queen [2013] VSCA 219
- Case
- [2013] VSCA 219
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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