R v Skondin

Case [2015] QCA 138

SUPREME COURT OF QUEENSLAND

CITATION:

R v Skondin [2015] QCA 138

PARTIES:

R
v
SKONDIN, Shane
(appellant/applicant)

FILE NO/S:

CA No 103 of 2014
SC No 201 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:


Supreme Court at Brisbane – Unreported, 7 April 2014

DELIVERED ON:

24 July 2015

DELIVERED AT:

Brisbane

HEARING DATE:

8 April 2015

JUDGES:

Holmes JA and Atkinson and Applegarth JJ
Separate reasons for judgment of each member of the Court, Holmes JA and Atkinson J concurring as to the orders made, Applegarth J dissenting in part

ORDERS:

1.   Grant the application to adduce evidence.

2.   Dismiss the appeal against conviction.

3.   Grant the application for leave to appeal against sentence.

4.   Allow the appeal against sentence.

5.   Vary the sentence imposed at first instance by substituting a sentence of nine years imprisonment with parole eligibility on 20 March 2017, while maintaining the declaration that the 784 days spent in pre-sentence custody between 20 March 2012 and the date of sentence (7 April 2014) was time already served under it.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of manslaughter – where the appellant struck the deceased with mild to moderate force to the back of the head – where the appellant told police that the deceased had accused him of being a police informant – where the appellant was inconsistent in his account to police as to whether the deceased had made physical contact with him first – where the incident was partially recorded by a CCTV camera – where the appellant argued that the jury could not reasonably have excluded the defences of self-defence and prevention of repetition of insult and the excuses of accident and compulsion – whether the verdict was unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant argued that the incompetence of his counsel at trial caused a miscarriage of justice – where the appellant alleged that his counsel failed to: give an opening address; call the appellant to give evidence; obtain the original CCTV footage; cross-examine a particular witness; and adduce the evidence of two expert witnesses – where the appellant’s trial counsel gave evidence at the appeal as to the appellant’s instructions and the forensic strategy adopted at trial – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to ten years imprisonment with an automatic serious violent offence declaration – where the appellant had a long criminal history but a limited history of violent offences – where the appellant struck the deceased unexpectedly, in a public place – where the blow was delivered with mild to moderate force with the appellant’s non-dominant hand – whether the sentence was…

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R v Skondin [2015] QCA 138
Case
[2015] QCA 138
Decision Date

CaseChat Overview and Summary

In the case of R v Skondin, the appellant contested his conviction and sentence for manslaughter. The appellant, who had a significant criminal history, was convicted for striking the deceased with mild to moderate force to the back of the head, leading to the deceased's death. The incident was partially recorded on CCTV, and the appellant's account to police was inconsistent regarding whether the deceased had made physical contact with him first. The appellant argued that the jury could not reasonably have excluded the defences of self-defence and prevention of repetition of insult and the excuses of accident and compulsion. The appeal also addressed the conduct of the appellant's defence counsel, alleging incompetence in several areas.

The court examined whether the verdict was unreasonable or insupportable given the evidence, and whether the appellant's trial counsel's conduct amounted to a miscarriage of justice. The court found that the appellant's defence counsel's alleged incompetence did not cause a miscarriage of justice, as the appellant lost nothing through the lack of a defence opening statement, and the Crown prosecutor had already raised the relevant defences. The court concluded that the jury's verdict was not unreasonable.

The appeal against the sentence was considered on the basis of whether it was manifestly excessive or inadequate. The appellant, who had a long criminal history but a limited history of violent offences, was sentenced to ten years imprisonment with an automatic serious violent offence declaration. The court found that the sentence was manifestly excessive, taking into account the appellant's age, the circumstances of the offence, and his criminal history. The sentence was varied to nine years imprisonment with parole eligibility on 20 March 2017, while maintaining the declaration that the 784 days spent in pre-sentence custody was time already served under the sentence.

The final orders of the court were to grant the application to adduce evidence, dismiss the appeal against conviction, grant the application for leave to appeal against sentence, allow the appeal against sentence, and vary the sentence imposed at first instance.

Orders

Orders of the court

1. Grant the application to adduce evidence.

2. Dismiss the appeal against conviction.

3. Grant the application for leave to appeal against sentence.

4. Allow the appeal against sentence.

5. Vary the sentence imposed at first instance by substituting a sentence of nine years imprisonment with parole eligibility on 20 March 2017, while maintaining the declaration that the 784 days spent in pre-sentence custody between 20 March 2012 and the date of sentence (7 April 2014) was time already served under it.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It was said that the failure to make an opening statement to the jury prejudiced the appellant’s case by depriving him of an early opportunity to outline his defence and creating a risk that the jury might conclude he had not given his lawyers instructions. Since I have already reached the view that a rational decision was made not to call the appellant to give evidence, neither of those contentions has any force. The Crown prosecutor in his opening explained that the real issue on the trial was whether the killing was unlawful and raised the defences of accident and self-defence. It is difficult to see that counsel for the appellant could usefully have added much by way of identifying the issues on the trial. However that may be, the appellant lost nothing through the lack of a defence opening statement.Conclusion on the appeal against conviction I do not consider that incompetence has been demonstrated in any of the respects alleged or that anything has been shown to be unfair about the appellant’s trial. Nor was the jury’s verdict unreasonable. I would dismiss the appeal against conviction.Application for leave to appeal against sentenceThe sentence hearing On being convicted of the manslaughter, the appellant pleaded guilty to a count of possessing a dangerous drug, methylamphetamine, in a very small amount: 1.8 grams. He was on bail for that offence when he committed the manslaughter. As at the date of sentence he had been in custody on remand for 748 days. The appellant was 39 years old when he committed the offence, and 42 at the sentence. His criminal history (from New South Wales) began when he was 13. His juvenile record consists mostly of car thefts, of which there are a considerable number, but there are also six counts of malicious injury. It appears that for most of his youth, he was on control orders or in juvenile detention. As an adult, the appellant seems to have spent most of the decade of the 90s serving short terms of imprisonment for offences of dishonesty, mostly break and enters and larcenies. There are few offences which could be characterised as violent: in 1997, the appellant was sentenced to a minimum term of one year for using an offensive weapon to prevent a police investigation; in 2000, he was sentenced to six months imprisonment for assault, concurrent with other sentences of the same length for larceny; and in October 2002, he was sentenced to six years imprisonment for robbery armed with an offensive weapon. In 2008, the appellant was sentenced to three years and nine months imprisonment on a count of aggravated break and enter. In 2011 he was sentenced to eight months imprisonment for escaping police custody, with release on parole after three months. That parole was revoked when he breached it by decamping to Queensland a couple of months before he killed Mr Newnham. Mr Godbolt submitted to the sentencing judge that the appellant’s criminal history stemmed from his long-term addiction to drugs. He had spent about 12 years of his adult life in jail. The only serious offence of violence of which he had been convicted was the armed robbery. He was not ordinarily disposed to violence, and even in this incident he had struck Mr Newnham with his non-dominant hand. As to his background, counsel said that the appellant did not know his father, and his mother had died as a result of drug use when he was small. Raised by his grandparents, he had difficulty at school and was addicted to heroin by the age of 18, contracting hepatitis C as a result of his intravenous drug use. He had had some relationships and had had an interval of work, but when he lost that employment relapsed into drug use and crime. On remand in custody, the appellant had applied himself: various certificates and commendations were tendered. He had completed TAFE units in occupational health and safety and first aid, as well as prison programs directed to addressing addiction, mental health problems and recidivism, and had worked as a “buddy”, assisting new prisoners.

Ratio Decidendi

Legal Principle Established

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