R v Smallwood - [2012] QCA 263

[2012] QCA 263

COURT OF APPEAL

HOLMES JA
FRASER JA
McMEEKIN J

CA No 121 of 2012
DC No 85 of 2012
DC No 112 of 2012
DC No 145 of 2012
DC No 148 of 2012
DC No 149 of 2012
DC No 150 of 2012

THE QUEEN

SMALLWOOD, Giovanni Applicant

BRISBANE

DATE 26/09/2012

JUDGMENT

HOLMES JA: Mr Smallwood, the Court has looked at the matter and could not see any basis to allow the application. I'll ask Justice Fraser to give his reasons.

FRASER JA: On 23 April 2012, the applicant was found guilty by a jury on two counts of rape committed on 22 August 2010. On 27 April 2012, the applicant pleaded guilty and was convicted of wilful damage, relating to his breaking of the complainant's mobile phone. He was then also convicted, on his own pleas, of grievous bodily harm committed on or about 24 December 2010, burglary and stealing committed on 4 February 2011, burglary and stealing committed on 21 September 2010, enter premises and commit an indictable offence on 11 October 2010, unlawful use of a motor vehicle, to facilitate the commission of an indictable offence on 11 October 2010, and entering premises with intent to commit an indictable offence on 12 October 2010. He was also convicted, on his pleas, of four summary offences, which it is not necessary to detail.

The applicant was sentenced to seven and half years imprisonment for each count of rape, three years imprisonment for the grievous bodily harm offence, and 18 months imprisonment for each other indictable offence except the wilful damage offence, for which he was given two months imprisonment. He was convicted and not further punished for one of the summary offences and sentenced to one month imprisonment for the others. All periods of imprisonment were ordered to be served concurrently. 413 days which the applicant had spent on remand was taken into consideration but was unable to be declared as pre-sentence custody. The applicant has applied for leave to appeal against his sentence on the ground that it is manifestly excessive.

The sentencing judge, who was the trial judge, referred to the two counts of rape as arising out of one incident, with one offence pertaining to penile anal rape and the other penile vaginal rape. The applicant used only limited force in the brief episode, the complainant having complied through fear. No weapon was used and no threats were articulated but it was a very frightening event for the complainant. The applicant committed the offences in the early hours of the morning. The complainant was a complete stranger to the applicant. The sexual contact was unprotected. The complainant was very distressed after the event. Her victim impact statement disclosed that she suffered not insignificant emotional problems for some time after the offences and she occasionally still suffered anxiety in certain situations.

The circumstances of the other offences are set out in a schedule of facts. In the grievous bodily harm offence,…

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 R v Smallwood

Details

AGLC: R v Smallwood [2012] QCA 263
Case: [2012] QCA 263
Decision Date: 26/09/2012

CaseChat Overview and Summary

In the case of the Queen v Smallwood, the applicant, Giovanni Smallwood, appealed against his sentence, arguing it was manifestly excessive. The Court of Appeal considered the nature of the crimes committed by Smallwood, which included two counts of rape, grievous bodily harm, and multiple instances of burglary and stealing. Smallwood was sentenced to seven and a half years imprisonment for each count of rape, three years for grievous bodily harm, and 18 months for each other indictable offence, with all sentences running concurrently. The sentencing judge took into account Smallwood's criminal history, his age at the time of the offences, and the fact that he committed the crimes while on probation. The Court of Appeal found that the sentence was within the appropriate sentencing range, considering the severity of the crimes and Smallwood's history of violence. The Court emphasised the importance of personal and general deterrence, and the need to protect the community from Smallwood. Ultimately, the Court found no merit in Smallwood's application and dismissed it. The sentence remains unchanged.

Orders