R v Smith

Case [2019] QCA 33

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smith [2019] QCA 33

PARTIES:

R
v
SMITH, Ry Liam
(appellant)

FILE NO/S:

CA No 20 of 2018
SC No 149 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Townsville – Date of Sentence: 19 January 2018 (North J)

DELIVERED ON:

1 March 2019

DELIVERED AT:

Brisbane

HEARING DATE:

7 November 2018

JUDGES:

Gotterson and McMurdo JJA and Boddice J

ORDERS:

1.   Grant leave to appeal.

2.   Allow the appeal.

3.   Vary the sentence imposed on 19 January 2018 for count one of the indictment by setting aside the declaration that this was a serious violent offence and by ordering that the parole eligibility date be 4 March 2020.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – SERIOUS OR VIOLENT OFFENDER – where the applicant was convicted of the manslaughter of an infant – where the applicant was sentenced to a term of nine years’ imprisonment with a declaration that it was a serious violent offence – where the sentencing judge imposed the term of imprisonment before considering the question of a serious violent offence declaration – whether the sentencing judge erred by fixing the term of imprisonment without regard to the serious violence offence declaration later made

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – MANSLAUGHTER – SENTENCE – PARTICULAR CASES – where the applicant was convicted of the manslaughter of an infant – where the applicant was sentenced to a term of nine years’ imprisonment with a declaration that it was a serious violent offence – where the infant died as a result of either the application of significant shaking or blunt force trauma – where the applicant pleaded guilty – where the applicant showed no remorse and denied that he caused the infant’s death prior to his plea of guilty – where the applicant had a history of cruelty and violence towards the infant – where the applicant refused to allow the infant’s mother to take the infant to a doctor after the fatal injuries were inflicted – where the applicant had no relevant criminal record – where the applicant was a heavy user of dangerous drugs and alcohol – where the applicant did not complete high school and was unemployed – where the sentencing judge erred by deciding the term of imprisonment independent of the serious violent offence declaration – whether the sentence was manifestly excessive

R v Chard; Ex parte Attorney-General (Qld)[2004] QCA 372, considered
R v JV[2014] QCA 351, considered
R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, applied
R v Riseley; Ex parte Attorney General (Qld)[2009] QCA 285, considered

COUNSEL:

J R Jones, with N D Boyd, for the…

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Details
AGLC
R v Smith [2019] QCA 33
Case
[2019] QCA 33
Decision Date

CaseChat Overview and Summary

The applicant, Mr Smith, appealed against his sentence for manslaughter of an infant, arguing that the sentencing judge erred by fixing the term of imprisonment without considering the declaration of serious violent offence. The baby was subjected to severe physical abuse by the applicant, who had a history of drug abuse and violent conduct. The baby died from head and spinal injuries, caused by either significant shaking or blunt force trauma. The applicant showed no remorse and denied causing the baby’s death until he pleaded guilty.

The Court was required to determine whether the sentencing judge erred by deciding the term of imprisonment independent of the serious violent offence declaration and whether the sentence was manifestly excessive. The Court considered the nature and circumstances of the offence, the applicant’s personal circumstances, and the principles of sentencing. The Court found that the sentencing judge did err by deciding the term of imprisonment before considering the question of a serious violent offence declaration. The Court also found that the sentence was not manifestly excessive, but that the declaration of serious violent offence was inappropriate in this case.

The Court granted leave to appeal and allowed the appeal. The Court set aside the declaration that the offence was a serious violent offence and ordered that the parole eligibility date be 4 March 2020. The Court considered that the sentence of nine years’ imprisonment was appropriate, but that the declaration of serious violent offence was not justified given the applicant’s personal circumstances and the nature of the offence. The Court emphasised the importance of considering the principles of sentencing and the appropriate balance between punishment and rehabilitation.

Orders

Orders of the court

1. Grant leave to appeal.

2. Allow the appeal.

3. Vary the sentence imposed on 19 January 2018 for count one of the indictment by setting aside the declaration that this was a serious violent offence and by ordering that the parole eligibility date be 4 March 2020.

Background

Background to the litigation

He applies for leave to appeal against his sentence for the manslaughter offence, upon the ground that the judge erred in deciding to impose the term of nine years before separately considering whether to declare that this was a serious violent offence. This Court is asked to set aside the sentence for that error and to re-sentence the applicant to that same term of nine years, but without the declaration and in its place a parole eligibility date at the five year mark. For the reasons that follow I am persuaded that those orders should be made.The facts The applicant lived with the baby and the baby’s mother. The applicant was a frequent user of dangerous drugs, including morphine and cannabis. His mood was constantly irritable and aggressive, and was worsening in the lead up to the baby’s death. During that time the applicant was physically abusive towards the baby; slapping him to the cheek, head-butting him, pinching the baby’s nose which caused visible bruising, punching him to the stomach, and rubbing his beard on the baby’s face. On one occasion, he picked the baby up from his cot and dropped him about 20 centimetres onto the mattress. At the time, the applicant said to the mother that he was trying to “toughen him up” and that he liked to hear the baby cry. The injuries which caused death were inflicted on 30 August 2013. Earlier that day, the applicant and the baby’s mother had argued and the applicant had left and become intoxicated by cannabis, alcohol and morphine. Later that day he returned home and about an hour later, he told the mother that he was taking the baby for a walk. He placed the baby in the stroller and told the mother to leave the baby alone as he and the baby left. About an hour later, the mother became concerned and went looking for them. She found them on a nearby street and saw that the baby appeared to be asleep and slumped over, with fresh bruises to his forehead. The applicant told her that he had run the stroller into the gutter and that the baby had hit his head on the side of the stroller. The mother took the baby home and put him to bed. On the following day it was apparent that the baby’s health was deteriorating. He had reduced levels of consciousness, he was crying with greater frequency and intensity, and he was vomiting and shaking. The applicant continued to tell the mother that the baby had struck his head on the stroller. The mother wanted to take the baby to a doctor, but the applicant resisted and suggested that the baby was “teething”. The baby continued to deteriorate further over the course of the following day, but no medical attention was sought. At about 9 pm on that night, the applicant and the mother observed that the baby had stopped breathing. The applicant attempted to resuscitate the baby as the mother called for an ambulance. The baby was taken to hospital but died about an hour and a half later. The cause of death was identified as head and spinal injuries, through either the application of significant shaking or blunt force trauma. Those alternative possibilities were set out in a schedule of facts tendered by the prosecutor at the sentencing hearing.The applicant’s personal circumstances

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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