R v Smith - [2017] QCA 45

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smith [2017] QCA 45

PARTIES:

R
v
SMITH, Wayne Russell
(applicant)

FILE NO/S:

CA No 343 of 2016
DC No 1267 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 15 November 2016

DELIVERED EX TEMPORE ON:

22 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

22 March 2017

JUDGES:

Gotterson and Philip McMurdo JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the offender offered to provide a statement under s 13A Penalties and Sentences Act 1992 (Qld) but statements were instead obtained from four other co-offenders – where no statement or other assistance was actually provided – where the offer was made solely in relation to the offences before the court and was made relatively late – where the sentencing judge did not refer to the offer of assistance in sentencing remarks – whether the sentencing judge was required to take the offer of assistance into account as a relevant consideration

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where the applicant procured a group of men to assault the complainant following a business dispute – where the applicant did not take part in the attack but nonetheless instigated the offence and provided a means of transport for the co-offenders – where one of the group of co-offenders was sentenced to 18 months’ imprisonment with immediate release on parole – where the applicant was sentenced to three years’ imprisonment – where the applicant contended that his offending was less serious than his co-offender because he did not participate in the violence – where the applicant was a mature man with a criminal history – where the co-offender participated in the violence but was a young man with no criminal history – whether the sentencing judge failed to properly apply the parity principle between co-offenders

COUNSEL:

A J Edwards for the applicant
C W Heaton QC for the respondent

SOLICITORS:

Guest Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

PHILIP McMURDO JA: On 15 November 2016, the applicant was convicted, on his plea of guilty, of an offence of assault occasioning bodily harm whilst armed and in company. He was sentenced to three years’ imprisonment with an order that he be released on parole on 14 May 2017. There had been no pre-sentence custody. He was ordered to pay $15,000 compensation to the complainant.
He applies for leave to appeal against his sentence now upon two grounds. The first is that the judge erred in failing to take into account attempts made by the applicant to assist…

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 [2017] QCA 45
Case: [2017] QCA 45
Decision Date: 22 March 2017

CaseChat Overview and Summary

The case of R v Smith involved the appellant, who had been convicted and sentenced for his role in a group assault. The appellant argued that the sentencing judge erred by not considering his offer to provide a statement under section 13A of the Penalties and Sentences Act 1992 (Qld) as well as by not properly applying the parity principle between co-offenders. The Supreme Court of Queensland was asked to determine whether the sentencing judge was required to consider the appellant's offer of assistance, and whether the judge had appropriately applied the parity principle in sentencing the appellant to three years' imprisonment, while one of his co-offenders received a lesser sentence of 18 months with immediate parole release.

The legal issues before the court were whether the sentencing judge was obliged to take into account the appellant's offer of assistance, which was made late and without any actual benefit provided, and whether the judge had properly applied the parity principle in sentencing the appellant in relation to his co-offender. The court had to examine if the judge's failure to consider the offer of assistance and the parity principle constituted a ground for interfering with the sentence.

The court found that the sentencing judge was not required to take the appellant's offer of assistance into account as it was made late and without any benefit. The court also held that the sentencing judge had not failed to properly apply the parity principle. The judge had taken into account the appellant's role as an instigator and his provision of transport for the co-offenders, along with his criminal history, which justified the disparity in sentencing between the appellant and the co-offender. Consequently, the court concluded that there were no grounds to interfere with the sentence.

The court refused the application for leave to appeal against the sentence, affirming the original sentence imposed on the appellant.

Orders

Orders of the court

Application for leave to appeal against sentence is refused.

Background

Background to the litigation

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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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CITATION:	R v Smith [2017] QCA 45
PARTIES:	R v SMITH, Wayne Russell (applicant)
FILE NO/S:	CA No 343 of 2016 DC No 1267 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 15 November 2016
DELIVERED EX TEMPORE ON:	22 March 2017
DELIVERED AT:	Brisbane
HEARING DATE:	22 March 2017
JUDGES:	Gotterson and Philip McMurdo JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the offender offered to provide a statement under s 13A Penalties and Sentences Act 1992 (Qld) but statements were instead obtained from four other co-offenders – where no statement or other assistance was actually provided – where the offer was made solely in relation to the offences before the court and was made relatively late – where the sentencing judge did not refer to the offer of assistance in sentencing remarks – whether the sentencing judge was required to take the offer of assistance into account as a relevant consideration CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where the applicant procured a group of men to assault the complainant following a business dispute – where the applicant did not take part in the attack but nonetheless instigated the offence and provided a means of transport for the co-offenders – where one of the group of co-offenders was sentenced to 18 months’ imprisonment with immediate release on parole – where the applicant was sentenced to three years’ imprisonment – where the applicant contended that his offending was less serious than his co-offender because he did not participate in the violence – where the applicant was a mature man with a criminal history – where the co-offender participated in the violence but was a young man with no criminal history – whether the sentencing judge failed to properly apply the parity principle between co-offenders
COUNSEL:	A J Edwards for the applicant C W Heaton QC for the respondent
SOLICITORS:	Guest Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent