JUDGES	ASHLEY, WEINBERG and TATE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	20 October 2011
DATE OF JUDGMENT	31 January 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 5
JUDGMENTS APPEALED FROM	DPP v Smith [2010] VSC 168 (Coghlan J) R v Andreevski & Ors [2010] VSC 618 (Coghlan J)

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CRIMINAL LAW – Murder – Intentionally causing serious injury – Affray – First appellant pleaded guilty to all counts – Prearranged fight between two groups of youths – Lethal weapons involved – Sentence of 18 years’ imprisonment for murder 1, eight years’ imprisonment for intentionally causing serious injury, and three years’ imprisonment for affray – Total effective sentence 22 years with non-parole period 17 years – Sentence not manifestly excessive – Parity – Sentence on count of affray unduly disparate – Appeal on count of affray allowed – Reduction in individual sentence does not necessarily reopen sentencing discretion as a whole – Re-sentenced on affray to two years’ imprisonment – Other sentences affirmed.

CRIMINAL LAW – Manslaughter – Recklessly causing injury – Affray – Second and third appellants stood trial on counts 1 and 2 and second appellant stood trial on count 3 – Appeals against conviction on counts 1 and 2 – Acting in concert – Whether trial judge failed to direct jury adequately as to principles of complicity – Whether verdicts reasonably open – Appeals dismissed.

CRIMINAL LAW – Sentence – Third appellant sentenced to five years’ imprisonment on count 1, 18 months’ imprisonment on count 2 and 18 months’ imprisonment on count 3 – Total effective sentence five years and six months with non-parole period three years – Not manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant Smith	Mr C B Boyce	Theo Magazis & Associates
For the Appellant Garcia	Mr T Kassimatis	James Dowsley & Associates
For the Appellant Andreevski	Mr M J Croucher SC	Robert Stary Lawyers
For the Crown	Mr J D McArdle QC and Mr C T Carr	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

I have had the advantage of reading in draft the reasons for judgment of Weinberg JA. I respectfully agree with them. I add only this: in a case in which a convicted person is sentenced for multiple offences, I consider that not only will a successful appeal against a particular individual sentence not open up other individual sentences for consideration, it will not do so in respect of the total effective sentence or the non-parole period fixed unless it was the base sentence, or unless it was the subject of a total or partial order for cumulation.

WEINBERG JA:

On 5 March 2010, Nathan Smith pleaded guilty in the Supreme Court at Melbourne to one count of murder (count 1), one…

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 [2012] VSCA 5
Case: [2012] VSCA 5
Decision Date: 31 January 2012

CaseChat Overview and Summary

The matter before the court was an appeal against conviction and sentence for three appellants involved in a violent affray between two groups of youths, which resulted in the death of one individual and serious injuries to others. The first appellant pleaded guilty to all counts, while the second and third appellants were convicted by a jury following a trial. The appeal addressed issues concerning the adequacy of the trial judge's directions to the jury, the proportionality of the sentences, and the need for parity among the sentences.

The primary legal issues concerned whether the trial judge had adequately directed the jury on the principles of complicity and whether the verdicts were reasonably open on the evidence. Additionally, the court had to determine if the sentences imposed were manifestly excessive and whether there was a need for parity among the sentences. The court held that the trial judge's directions to the jury were sufficient, and the verdicts were reasonably open on the evidence. Concerning the sentences, the court found that the total effective sentence was not manifestly excessive, but the sentence for the count of affray was unduly disparate.

The court allowed the appeal on the count of affray for the first appellant and reduced the individual sentence to two years’ imprisonment. The other sentences were affirmed, resulting in a total effective sentence of 22 years with a non-parole period of 17 years. The appeals against conviction for the second and third appellants were dismissed, and their appeals against sentence were also dismissed as the sentences were not manifestly excessive. The final orders were that the sentence for the count of affray for the first appellant was reduced to two years' imprisonment, and the other sentences were affirmed.

Orders