R v Smith - [2018] QCA 136

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smith [2018] QCA 136

PARTIES:

R
v
SMITH, Kane Alan
(applicant)

FILE NO/S:

CA No 298 of 2017
DC No 585 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 1 December 2017 (Smith DCJ)

DELIVERED ON:

26 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

17 April 2018

JUDGES:

Sofronoff P and Mullins and Bowskill JJ

ORDER:

Application refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of burglary and grievous bodily harm – where the applicant broke into the dwelling of the complainant, a 71 year old woman, and began attacking her – where, during the course of the attack, the applicant repeatedly stated that he had been kidnapped – where the applicant called the police during the course of the attack, stating that he needed help – where the applicant stabbed the complainant in her right eye with a butter knife, causing her to permanently lose sight in that eye – where the complainant suffered serious injuries, both physical and psychological, that have rendered her unable to live independently, as she previously did – where analysis of the applicant’s blood after the offending revealed the presence of THC and methylamphetamine – where a psychiatric report prepared before sentencing stated that the applicant was suffering a developing methamphetamine induced psychotic disorder at the time of the offence – where the psychiatric report expressed the opinion that the applicant was intoxicated at the time of offending – where the applicant’s substance abuse was against a backdrop of a difficult upbringing – where the learned sentencing judge imposed a sentence of seven years imprisonment with a serious violent offence declaration – where the applicant submits that the offence can be explained by his mental health problems – where the applicant’s mental state was one that was induced by heavy drug use at the time of offending – where the applicant accepts that the seven year head sentence was appropriate – whether the learned sentencing judge had insufficient regard to the applicant’s mental state in imposing a serious violent offence declaration, such that the making of the declaration rendered the sentence manifestly excessive

Criminal Code (Qld), s 419(4)

R v Bowley (2016) 262 A Crim R 93; [2016] QCA 254, cited
R v McDougall & Collas [2007] 2 Qd R 87; [2006] QCA 365, cited

COUNSEL:

N V Weston for the applicant
J A Wooldridge for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: Late in the evening of Saturday, 2 May 2015 the complainant, a 71 year old woman, was at home in Torquay in Hervey Bay. She was a healthy, intelligent and socially active woman. She lived with her dog, Gaby, in her own home that had…

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 136
Case: [2018] QCA 136
Decision Date: 26 June 2018

CaseChat Overview and Summary

The appellant, Smith, appealed against the sentence imposed by the sentencing judge in the County Court. Smith pleaded guilty to one count of burglary and grievous bodily harm. The appeal centred on the severity of the sentence, particularly the imposition of a serious violent offence declaration. Smith argued that the learned sentencing judge did not sufficiently consider his mental state at the time of the offence, which was influenced by heavy drug use, rendering the sentence manifestly excessive.

The legal issue at the heart of the appeal was whether the sentencing judge had failed to adequately take into account Smith’s mental state, which was significantly affected by drug intoxication. Smith contended that his mental health problems, induced by his substance abuse, should have mitigated the severity of the sentence, especially in relation to the serious violent offence declaration. The appeal raised questions about the appropriate weight to be given to mental health issues in sentencing, and whether the sentence, including the serious violent offence declaration, was manifestly excessive given the mitigating factors.

The court carefully reviewed the sentencing judge’s consideration of Smith’s mental state and the circumstances of the offence. It was noted that the sentencing judge had considered the psychiatric report which detailed Smith’s developing methamphetamine induced psychotic disorder and his intoxication at the time of the offence. The court concluded that the sentencing judge had appropriately balanced the severity of the offence with the mitigating factors, including Smith’s mental health issues. The court found that the sentence, including the serious violent offence declaration, was not manifestly excessive and thus dismissed the appeal.

The court’s decision upheld the original sentence imposed by the County Court. The application for appeal was refused, and the sentence of seven years imprisonment with a serious violent offence declaration was maintained.

Orders

Orders of the court

Application refused.

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 [2018] QCA 136
PARTIES:	R v SMITH, Kane Alan (applicant)
FILE NO/S:	CA No 298 of 2017 DC No 585 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 1 December 2017 (Smith DCJ)
DELIVERED ON:	26 June 2018
DELIVERED AT:	Brisbane
HEARING DATE:	17 April 2018
JUDGES:	Sofronoff P and Mullins and Bowskill JJ
ORDER:	Application refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of burglary and grievous bodily harm – where the applicant broke into the dwelling of the complainant, a 71 year old woman, and began attacking her – where, during the course of the attack, the applicant repeatedly stated that he had been kidnapped – where the applicant called the police during the course of the attack, stating that he needed help – where the applicant stabbed the complainant in her right eye with a butter knife, causing her to permanently lose sight in that eye – where the complainant suffered serious injuries, both physical and psychological, that have rendered her unable to live independently, as she previously did – where analysis of the applicant’s blood after the offending revealed the presence of THC and methylamphetamine – where a psychiatric report prepared before sentencing stated that the applicant was suffering a developing methamphetamine induced psychotic disorder at the time of the offence – where the psychiatric report expressed the opinion that the applicant was intoxicated at the time of offending – where the applicant’s substance abuse was against a backdrop of a difficult upbringing – where the learned sentencing judge imposed a sentence of seven years imprisonment with a serious violent offence declaration – where the applicant submits that the offence can be explained by his mental health problems – where the applicant’s mental state was one that was induced by heavy drug use at the time of offending – where the applicant accepts that the seven year head sentence was appropriate – whether the learned sentencing judge had insufficient regard to the applicant’s mental state in imposing a serious violent offence declaration, such that the making of the declaration rendered the sentence manifestly excessive Criminal Code (Qld), s 419(4) R v Bowley (2016) 262 A Crim R 93; [2016] QCA 254, cited R v McDougall & Collas [2007] 2 Qd R 87; [2006] QCA 365, cited
COUNSEL:	N V Weston for the applicant J A Wooldridge for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent