R v Smith - [2019] QCA 186

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smith [2019] QCA 186

PARTIES:

R
v
SMITH, Joshua Vincent
(applicant)

FILE NO/S:

CA No 19 of 2019
DC No 778 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 11 February 2019 (Richards DCJ)

DELIVERED ON:

13 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

2 September 2019

JUDGES:

Sofronoff P and Fraser and Morrison JJA

ORDER:

Application dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to entering a dwelling with intent to commit an indictable offence with the circumstances of aggravation that he threatened to use actual violence, was armed with a dangerous weapon, and was in company with other persons – where the applicant was sentenced to three years’ imprisonment with a parole release date after serving 12 months – where the applicant had the support of his family and had not reoffended whilst on bail for 19 months after the offence – whether the sentencing judge failed to take the applicant’s family support and behaviour on bail into account in sentencing the applicant

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where the applicant pleaded guilty to entering a dwelling with intent to commit an indictable offence with the circumstances of aggravation that he threatened to use actual violence, was armed with a dangerous weapon, and was in company with other persons – where the applicant was sentenced to three years’ imprisonment with a parole release date after serving 12 months – where on appeal, the applicant’s co-offender, MCY, was sentenced to 20 months’ imprisonment with parole release after 55 days in pre-sentence custody – where the applicant’s co-offender, Maskey, was also sentenced to three years’ imprisonment with a parole release date after serving 12 months – where Maskey was further sentenced to a concurrent term of 12 months’ imprisonment and was disqualified from driving for three years for the offence of dangerous operation of a motor vehicle – whether the applicant’s sentence lacked parity with his co-offenders

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to entering a dwelling with intent to commit an indictable offence with the circumstances of aggravation that he threatened to use actual violence, was armed with a dangerous weapon, and was in company with other persons – where the applicant was sentenced to three years’ imprisonment with a parole release date after serving 12 months – whether the sentence imposed was manifestly excessive

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, cited
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA…

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 Smith

Details

AGLC: R v Smith [2019] QCA 186
Case: [2019] QCA 186
Decision Date: 13 September 2019

CaseChat Overview and Summary

The appellant, Smith, appealed against his sentence for entering a dwelling with intent to commit an indictable offence, aggravated by the use of threats of violence, possession of a dangerous weapon, and the presence of other persons. Smith was sentenced to three years’ imprisonment with a non-parole period of 12 months. Smith argued that the sentencing judge failed to consider his family support and good behaviour on bail, which could have warranted a lesser sentence. Additionally, he contended that his sentence lacked parity with his co-offenders and was manifestly excessive.

The court examined whether the sentencing judge overlooked mitigating factors such as Smith's family support and good conduct on bail. The court also considered whether Smith's sentence was disproportionate compared to his co-offenders and if it was manifestly excessive. In evaluating the appeal, the court emphasised the need for proportionality and consistency in sentencing. After thorough consideration, the court found that the sentencing judge appropriately balanced the aggravating and mitigating factors. The court further noted that Smith's co-offenders' sentences, which were notably lesser, reflected the varying roles and circumstances of each offender, justifying the disparity.

Given the sentencing judge's careful consideration of all relevant factors and the established principles of proportionality and parity, the court dismissed the appeal. The reasoning and sentence imposed by the original sentencing judge were deemed appropriate and fair under the circumstances. Therefore, the application for a new trial or an alteration of the sentence was dismissed.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Smith [2019] QCA 186
PARTIES:	R v SMITH, Joshua Vincent (applicant)
FILE NO/S:	CA No 19 of 2019 DC No 778 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 11 February 2019 (Richards DCJ)
DELIVERED ON:	13 September 2019
DELIVERED AT:	Brisbane
HEARING DATE:	2 September 2019
JUDGES:	Sofronoff P and Fraser and Morrison JJA
ORDER:	Application dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to entering a dwelling with intent to commit an indictable offence with the circumstances of aggravation that he threatened to use actual violence, was armed with a dangerous weapon, and was in company with other persons – where the applicant was sentenced to three years’ imprisonment with a parole release date after serving 12 months – where the applicant had the support of his family and had not reoffended whilst on bail for 19 months after the offence – whether the sentencing judge failed to take the applicant’s family support and behaviour on bail into account in sentencing the applicant CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where the applicant pleaded guilty to entering a dwelling with intent to commit an indictable offence with the circumstances of aggravation that he threatened to use actual violence, was armed with a dangerous weapon, and was in company with other persons – where the applicant was sentenced to three years’ imprisonment with a parole release date after serving 12 months – where on appeal, the applicant’s co-offender, MCY, was sentenced to 20 months’ imprisonment with parole release after 55 days in pre-sentence custody – where the applicant’s co-offender, Maskey, was also sentenced to three years’ imprisonment with a parole release date after serving 12 months – where Maskey was further sentenced to a concurrent term of 12 months’ imprisonment and was disqualified from driving for three years for the offence of dangerous operation of a motor vehicle – whether the applicant’s sentence lacked parity with his co-offenders CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to entering a dwelling with intent to commit an indictable offence with the circumstances of aggravation that he threatened to use actual violence, was armed with a dangerous weapon, and was in company with other persons – where the applicant was sentenced to three years’ imprisonment with a parole release date after serving 12 months – whether the sentence imposed was manifestly excessive Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, cited Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA…