R v Smith - [2018] QCA 228

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smith [2018] QCA 228

PARTIES:

R
v
SMITH, Matthew John
(applicant)

FILE NO/S:

CA No 66 of 2018
SC No 71 of 2017
SC No 356 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 14 March 2018 (Lyons SJA)

DELIVERED ON:

Orders delivered ex tempore 18 September 2018
Reasons delivered 21 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

18 September 2018

JUDGES:

Sofronoff P and Morrison JA and Henry J

ORDERS:

Orders delivered ex tempore on 18 September 2018:

1. Application for leave to appeal granted.

2. The sentence imposed below is varied only to the extent of varying the parole eligibility date from 13 May 2020 to 18 July 2019.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was sentenced to a head sentence of seven years imprisonment – where there were significant mitigating circumstances – where there was a delay in the disposition of the sentence – where the applicant seized the opportunity of the delay between arrest and sentence to progress rehabilitation – where the applicant arranged for bail revocation to start to serve his sentence – where there was a likely mathematical error in how the parole eligibility date was arrived at – where there was undeclarable presentence custody to be taken into account

Penalties and Sentences Act 1992 (Qld), s 159A

R v Boyd[2013] QCA 335, cited
R v Briggs[2012] QCA 291, cited
R v Ta[2016] QCA 305, cited

COUNSEL:

A J Kimmins for the applicant
N W Needham for the respondent

SOLICITORS:

Rostron Carlyle Rojas for the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with the reasons of Henry J.

ORRISON JA:M I agree with the reasons of Henry J as they reflect the basis for my joining in the orders made on 18 September 2018.

HENRY J: On the hearing of this application for leave to appeal sentence on 17 September 2018 the court ordered:
1.Application for leave to appeal granted.
2.The sentence imposed below is varied only to the extent of varying the parole eligibility date from 13 May 2020 to 18 July 2019.
These are my reasons for joining in those orders.
The applicant sought leave to appeal his sentence for carrying on the business of trafficking in methylamphetamine on the ground that it was manifestly excessive. While there was no substance to that ground to the extent it related to the head sentence, there appeared to have been a mathematical error in the setting of the applicant’s parole eligibility date, resulting in a sentence which was manifestly excessive.
On 14 March 2018 the applicant pleaded guilty to the following offences, receiving the following sentences:
Indictment One:
Count 1 Trafficking between 4 August 2013 and 31 December 2014, seven years’ imprisonment.
Count 2 Possession of…

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 [2018] QCA 228
Case: [2018] QCA 228
Decision Date: 18 September 2018

CaseChat Overview and Summary

The case of R v Smith involves an appeal against the sentence imposed by the lower court. The applicant, Smith, was sentenced to a head sentence of seven years imprisonment. The primary issue before the court was whether the sentence was manifestly excessive and should be altered. A secondary issue was whether there was a mathematical error in calculating the parole eligibility date. The applicant argued that the delay in sentencing provided an opportunity for rehabilitation, and he voluntarily arranged for bail revocation to begin serving his sentence.

The court considered the significant mitigating circumstances surrounding the case, including the delay in sentencing, which allowed the applicant to progress his rehabilitation. The court also noted the likely mathematical error in calculating the parole eligibility date and the presence of undeclarable presentence custody that should be considered. The court found that while the sentence was not manifestly excessive, the parole eligibility date needed correction. The court granted leave to appeal and varied the parole eligibility date from 13 May 2020 to 18 July 2019.

The court's reasoning focused on the need to correct the mathematical error in the parole eligibility date while acknowledging the applicant's efforts to rehabilitate himself during the delay in sentencing. The court did not find the original sentence to be manifestly excessive but recognised the need for adjustment to ensure the correct application of the law. The decision to grant leave to appeal and vary the parole eligibility date reflects a balanced approach, recognising both the applicant's efforts to rehabilitate and the necessity of legal accuracy in sentencing.

The final orders included granting leave to appeal and varying the parole eligibility date. This decision ensures that the applicant's sentence is correctly aligned with the legal requirements while acknowledging his efforts to improve himself during the delay in sentencing. The outcome provides a fair resolution that respects both the legal framework and the individual circumstances of the case.

Orders

Orders of the court

Orders delivered ex tempore on 18 September 2018:

1. Application for leave to appeal granted.

2. The sentence imposed below is varied only to the extent of varying the parole eligibility date from 13 May 2020 to 18 July 2019.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Smith [2018] QCA 228
PARTIES:	R v SMITH, Matthew John (applicant)
FILE NO/S:	CA No 66 of 2018 SC No 71 of 2017 SC No 356 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 14 March 2018 (Lyons SJA)
DELIVERED ON:	Orders delivered ex tempore 18 September 2018 Reasons delivered 21 September 2018
DELIVERED AT:	Brisbane
HEARING DATE:	18 September 2018
JUDGES:	Sofronoff P and Morrison JA and Henry J
ORDERS:	Orders delivered ex tempore on 18 September 2018: 1. Application for leave to appeal granted. 2. The sentence imposed below is varied only to the extent of varying the parole eligibility date from 13 May 2020 to 18 July 2019.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was sentenced to a head sentence of seven years imprisonment – where there were significant mitigating circumstances – where there was a delay in the disposition of the sentence – where the applicant seized the opportunity of the delay between arrest and sentence to progress rehabilitation – where the applicant arranged for bail revocation to start to serve his sentence – where there was a likely mathematical error in how the parole eligibility date was arrived at – where there was undeclarable presentence custody to be taken into account Penalties and Sentences Act 1992 (Qld), s 159A R v Boyd[2013] QCA 335, cited R v Briggs[2012] QCA 291, cited R v Ta[2016] QCA 305, cited
COUNSEL:	A J Kimmins for the applicant N W Needham for the respondent
SOLICITORS:	Rostron Carlyle Rojas for the applicant Director of Public Prosecutions (Queensland) for the respondent