Smith v The Queen - [2012] VSCA 133

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0366

DAMIEN SMITH
	Appellant
v
THE QUEEN	Respondent

and

S APCR 2010 0381

DAVID DROSTE
	Appellant
v
THE QUEEN	Respondent

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JUDGES	BONGIORNO JA and ROSS AJA (to 10 November 2011) and CURTAIN AJA (from 10 November 2011)
WHERE HELD	MELBOURNE
DATE OF HEARING	10 November 2011 and 4 April 2012
DATE OF JUDGMENT	10 November 2011 and 21 June 2012 (addendum)
MEDIUM NEUTRAL CITATION	[2012] VSCA 133
JUDGMENT APPEALED FROM	DPP (Vic) v Smith (Unreported, County Court of Victoria, Judge Parsons, 28 September 2010 and 5 October 2010)

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CRIMINAL LAW – Sentence – Appellants severely assaulted 43-year-old male victim – Appellants each pleaded guilty to one charge of intentionally causing serious injury – Smith sentenced to nine years’ imprisonment with non-parole period of seven years – Droste initially sentenced to nine years’ imprisonment with non-parole period of seven years and six months but re-sentenced upon sentencing judge being informed that offending had resulted in cancellation of his parole – Droste’s non-parole period reduced to seven years – Whether sentences were manifestly excessive – Whether sentencing judge erred in only reducing Droste’s non-parole period when re-exercising sentencing discretion – Whether sentencing judge erroneously reduced weight given to appellants’ pleas of guilty due to strength of Crown case – Whether lack of disparity between sentences imposed on appellants infringed principle of parity – Appeal allowed – Smith re-sentenced to seven years’ imprisonment with non-parole period of five years – Droste re-sentenced to six years and six months’ imprisonment with non-parole period of four years and six months – R v Pajic (2009) 23 VR 527 – Scerri v The Queen (2010) 206 A Crim R 1 – Sentencing Act 1991 s 6AAA.

CRIMINAL LAW – Sentence – Addendum – Court informed subsequent to judgment being delivered that Droste had been sentenced in Magistrates’ Court on 4 February 2011 – Magistrate had fixed new single non-parole period pursuant to s 14 of Sentencing Act 1991 – Non-parole period related to Droste’s County Court sentence and sentence imposed on him by Magistrate – Whether s 14 operated to require this Court to fix new single non-parole period – Whether sentence imposed by this Court following successful appeal was ‘further term of imprisonment’ for purposes of s 14(1)(b) – Orders made on 10 November 2011 confirmed – Criminal Procedure Act 2009 s 282 – Sentencing Act 1991 s 14.

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APPEARANCES:	Counsel	Solicitors
For the Appellant Smith	Mr P A S Skehan	Victorian Aboriginal Legal Service
For the Appellant Droste	Mr C B Boyce	Mr R V Tait
For the Crown	Mr G J C Silbert SC and Mr D Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

BONGIORNO JA:

These appeals arise out of an incident which occurred on 29 January 2010 when the appellants, acting together, severely assaulted a 43‑year‑old man in his home at Warrnambool. Smith had been to the victim’s home on prior occasions and was known to…

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 133
Case: [2012] VSCA 133
Decision Date: 10 November 2011 and 21 June 2012 (addendum)

CaseChat Overview and Summary

Smith and Droste appealed against their sentences for the assault of a 43-year-old male victim. Smith was sentenced to nine years' imprisonment with a non-parole period of seven years, while Droste was initially sentenced to nine years' imprisonment with a non-parole period of seven years and six months. Upon learning that Droste's parole had been cancelled due to the offence, the sentencing judge reduced Droste's non-parole period to seven years. The appeal centred on whether the sentences were manifestly excessive, if the sentencing judge erred in reducing only Droste's non-parole period, if the judge reduced the weight given to the appellants' guilty pleas due to the strength of the Crown case, and whether the lack of disparity between the sentences infringed the principle of parity.

The Court examined whether the original sentences were manifestly excessive, considering the severity of the assault. It also assessed whether the sentencing judge was correct in only reducing Droste's non-parole period upon learning of the parole cancellation. The Court scrutinised if the judge had erroneously diminished the significance of the appellants' guilty pleas due to the strength of the prosecution's case. Furthermore, the Court considered whether the absence of disparity in the sentences imposed on the appellants contravened the principle of parity. The appeal was allowed, and the sentences were reconsidered, with Smith re-sentenced to seven years' imprisonment with a non-parole period of five years, and Droste re-sentenced to six years and six months' imprisonment with a non-parole period of four years and six months.

The Court was additionally informed that Droste had been sentenced by a magistrate subsequent to the judgment being delivered. The magistrate fixed a new single non-parole period pursuant to section 14 of the Sentencing Act 1991, which related to Droste's County Court sentence and the sentence imposed by the magistrate. The Court had to determine if section 14 required it to fix a new single non-parole period and whether the sentence imposed by the Court following the successful appeal was a 'further term of imprisonment' for the purposes of section 14(1)(b). The orders made on 10 November 2011 were confirmed, with the Court considering the implications of the Criminal Procedure Act 2009 and the Sentencing Act 1991.

Orders