R v Smith

Kim Bruce Smith appeals against his conviction for conspiracy to defeat the course of justice, wilfully attempting to defeat the course of justice, and multiple charges of unlawful possession of firearms and explosives, and possession of Class A and B drugs. The appeal concerns the sentence imposed by Lang J, which was an effective term of eight years imprisonment. Smith argues that the sentence is manifestly excessive and there is a disparity in the sentencing compared to a co-offender, Mr MacPherson. The court must determine if the sentence is appropriate and if there is a disparity in sentencing between Smith and MacPherson.

The court considered the submissions of both parties and examined the sentencing principles. The court found that while the individual sentences for the charges arising from the 12 February 2004 search were within the range available to the judge and could be considered lenient, there was a concern with the overall effective starting point of nine years for the offending that occurred once Smith became a fugitive. The court found that the starting point of five and a half years for the conspiracy to pervert the course of justice was not excessive when compared to the starting point adopted by Ellen France J in the case of Mr MacPherson. However, the court considered that the judge failed to sufficiently take into account the fact that the firearms were never presented at the police or the public, and that Smith did not offend against the public during his period as a fugitive. The court concluded that the appropriate starting point was one of eight years’ imprisonment for the totality of the offending while a fugitive, reducing the judge’s overall starting point of 11 years to ten years’ imprisonment. The court found that the allowance of three years made by the judge was appropriate, leading to an end sentence of eight years’ imprisonment.

The appeal is allowed. The sentence on count 1 is reduced to five years’ imprisonment. The effective sentence is reduced to seven years’ imprisonment.