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
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.
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.
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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.