R v Schmidt

Case [2011] QCA 133


SUPREME COURT OF QUEENSLAND

CITATION:

R v Schmidt [2011] QCA 133

PARTIES:

R
v
SCHMIDT, Christopher

(applicant)

FILE NO/S:

CA No 230 of 2010
SC No 1565 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

24 May 2011

JUDGES:

Muir JA, Margaret Wilson AJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDERS:

Application for leave to appeal against sentence dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – the applicant co-operated with police and admitted to unknown offences – admission to unknown crimes is a mitigating factor – sentencing judge did not err in failing to give sufficient weight to his co-operation

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – totality principle – the meaning of crushing sentence – dual-limb principle – a crushing sentence may but need not be set aside

AB v The Queen[1999] HCA 46; (1999) 198 CLR 111, cited
Jarvis v The Queen (1993) 20 WAR 201, cited
Kirby v The Queen [2003] WASCA 164, cited
Le v The Queen[2004] WASCA 214, cited
McDonald v The Queen [1994] FCA 956; (1994) 48 FCR 555, cited
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, cited
Moffat v Seears [1986] NTSC 59, cited
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, cited
R v Cumberbatch [2004] VSCA 37; (2004) 8 VR 9, cited
R v Franklin[2009] HCATrans 221, cited
R v Glenister [1980] 2 NSWLR 597, cited
R v PW[2005] QCA 177, cited
R v Smith ex parte Attorney-General [1998] QCA 220, cited Roffey v Western Australia[2007] WASCA 246, cited
Seroka v Western Australia[2006] WASCA 284, cited
Vlek v the Queen [1999] WASCA 1038, cited
Wordsworth v Lowe [1988] TASSC 52, cited

COUNSEL:

J M Sharp for the applicant
M B Lehane for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant  
Department of Public Prosecutions (Queensland) for the respondent

[1]      A:  MUIR JI am indebted to Fryberg J for his valuable and interesting discussion of the concept of a “crushing” sentence and of how the concept relates to the totality principle.  However, I do not find it necessary to express any views on the subject in this case as it does not bear on the outcome of the application and was only touched on tangentially by counsel.  I otherwise agree with the reasons of Fryberg J and with the order proposed by him.

[2]      MARGARET WILSON AJA:  For the reasons given by Fryberg J, the application for leave to appeal should be dismissed.

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Details
AGLC
R v Schmidt [2011] QCA 133
Case
[2011] QCA 133
Decision Date

CaseChat Overview and Summary

The applicant, Schmidt, appealed against the sentence imposed following his conviction for multiple criminal offences. The appeal was heard in the relevant appellate court, where the primary issue was whether the sentence was manifestly excessive or inadequate. The applicant argued that the sentencing judge did not sufficiently account for his cooperation with the police and the mitigating effect of his admission to unknown offences. Additionally, the applicant contended that the sentence imposed was crushing and should be set aside in accordance with the totality principle.

The court examined the sentencing judge's decision to determine whether it was open to the judge to conclude that the mitigating factors were adequately considered. The court held that the sentencing judge was not required to give specific weight to the applicant's cooperation as it was already implicit in the overall assessment of mitigating factors. Furthermore, the court noted that while a crushing sentence may warrant setting aside, it is not necessarily required to do so, and the totality principle must be applied judiciously. The court found that the sentence was within the range of reasonable responses and did not manifest any error in the application of the relevant legal principles.

Consequently, the court dismissed the application for leave to appeal against the sentence. The court's reasoning was that the sentencing judge had appropriately considered the mitigating factors, including the applicant's cooperation, and that the sentence was not manifestly excessive or inadequate. The totality principle was also correctly applied, and the sentence did not reach the threshold of being crushing.

No further orders were made, as the application for leave to appeal was dismissed.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed.

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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