Smith v The Queen - [2010] VSCA 192

SUPREME COURT OF VICTORIA

COURT OF APPEAL

ANDREW SMITH	S APCR 2009 0992
ANDREW SMITH	Appellant
v
THE QUEEN	Respondent

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JUDGES:	NETTLE and BONGIORNO JJA and BEACH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 July 2010
DATE OF JUDGMENT:	29 July 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 192
JUDGMENT APPEALED FROM:	R v Smith (Unreported, County Court of Victoria, Judge Montgomery, 8 December 2009)

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CRIMINAL LAW – Appeal – Sentence – Domestic violence – Attitude of the victim – No different sentence should have been passed – Appeal dismissed – Crimes Act1958, s 568(4).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Dann	C Marshall & Associates
For the Crown	Mr S Cooper	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

I will ask Beach AJA to deliver the first judgment.

BEACH AJA:

On 22 July 2009, the appellant pleaded guilty to two counts: one of recklessly causing serious injury and the other of attempting to pervert the course of justice. A plea was heard on 8 December 2009, and on that date his Honour Judge Montgomery sentenced the appellant to three years’ imprisonment on the count of recklessly causing serious injury and nine months’ imprisonment on the count of attempting to pervert the course of justice. His Honour ordered three months of the nine months to be served cumulatively with the first count, making a total of three years and three months, and directed that the appellant serve a non-parole period of two years and three months.

The appellant appeals against the sentence he received. The grounds of the appeal are:

(1)The sentencing judge erred in failing to have any regard or any sufficient regard to the attitude of the victim, Maria Rodriguez.
(2)The total effective sentence, non-parole period and the individual sentence imposed on the count of recklessly causing serious injury are each manifestly excessive.

The maximum term of imprisonment for recklessly causing serious injury is 15 years. The maximum term of imprisonment for attempting to pervert the course of justice is 25 years.

The facts of the appellant’s offending may be briefly stated as follows:

(a)On 8 June 2008, the appellant and the complainant, Maria Rodriguez, were at home when the appellant began arguing with Ms Rodriguez about money. The appellant lost control and punched Ms Rodriguez several times on the jaw and struck her with an open hand to the face. He also punched her to the head area. Ms Rodriguez was yelling at the appellant to stop, but he kept punching her. As a result of the punches to the jaw, Ms Rodriguez was taken to hospital, where an X-ray was taken which revealed she had a bilateral fracture of the mandible, which required surgical intervention. She also had bruising to her left arm, right thigh and right knee. This forms the factual basis in respect of the first count.
(b)The appellant was arrested and remanded in custody. Whilst the appellant was in custody, there were a number 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 [2010] VSCA 192
Case: [2010] VSCA 192
Decision Date: 29 July 2010

CaseChat Overview and Summary

In the case of Smith v The Queen, the appellant, Smith, challenged his conviction and sentence on the grounds of domestic violence. The appeal was heard and determined by the court of appeal. The central dispute in this case was whether the primary judge erred in sentencing Smith to a term of imprisonment for his involvement in domestic violence incidents. Smith argued that the primary judge's approach to sentencing was flawed, particularly in light of the victim's attitude towards the proceedings and the possibility of an alternative sentence.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive or inadequate in light of the circumstances of the case. Specifically, the court needed to determine if the primary judge had properly considered all relevant factors, including the nature and circumstances of the offence, the attitude of the victim, and the principles of sentencing under the Crimes Act 1958. Additionally, the court had to assess whether the sentence was disproportionate to the gravity of the offence and whether there were any grounds to interfere with the sentence.

The court of appeal carefully examined the sentencing principles and the primary judge's application of these principles in the context of domestic violence offences. It concluded that the primary judge had appropriately considered all relevant factors, including the victim's attitude and the principles of sentencing. The court found no error in the primary judge's approach to sentencing and determined that the sentence was neither manifestly excessive nor inadequate. Consequently, the appeal was dismissed, and the original sentence was upheld. The court emphasised that there was no basis for a different sentence to be passed in this case.

Orders