R v Smith

[2016] QCA 9

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smith [2016] QCA 9

PARTIES:

R
v
SMITH, Gavin Lee
(applicant)

FILE NO/S:

CA No 99 of 2015
DC No 28 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court of Queensland at Mt Isa – Date of Sentence: 29 April 2015

DELIVERED ON:

5 February 2016

DELIVERED AT:

Brisbane

HEARING DATE:

27 September 2015

JUDGES:

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

ORDER:

Leave to appeal against sentence 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 grievous bodily harm on 27 April 2015 at the District Court at Mt Isa – where the applicant was sentenced to seven years’ imprisonment with parole eligibility fixed at 26 October 2017 – where the applicant brought an application for leave to appeal sentence – where the sole ground of appeal was that the sentence was manifestly excessive – where it was submitted that the learned sentencing judge sentenced the applicant on an incorrect factual basis as a result of an inconsistency between the admitted victim impact statement and medical information contained in the statement of facts, thereby falling into error – where it was put that the learned sentencing judge attributed too much weight to the applicant’s history of offending – whether the sentence was manifestly excessive

Criminal Code (Qld), s 320
Evidence Act 1977 (Qld), s 132C
Penalties and Sentences Act 1992 (Qld), s 15(1)

R v Aplin[2014] QCA 332, applied
R v Castle; Ex parte Attorney-General (Qld) [2014] QCA 276, considered
R v Neal[2012] QCA 12, considered
R v Smith[2008] QCA 133, considered
R v Tahir; Ex parte Attorney-General (Qld)[2013] QCA 294, applied

COUNSEL:

H Walters for the applicant
S J Farnden for the respondent

SOLICITORS:

Arthur Brown & Associates for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. GOTTERSON JA: On 27 April 2015 at the District Court at Mt Isa, the applicant, Gavin Lee Smith, pleaded guilty to one count of grievous bodily harm charged on indictment. The indictment alleged that on 2 August, 2014 at Mt Isa, the applicant unlawfully did grievous bodily harm to the complainant in contravention of section 320 of the Criminal Code (Qld) (Code).[1]

   [1]ARB1-2.

2. On 29 April 2015 the applicant was sentenced to seven years’ imprisonment with parole eligibility after two and a half years.[2]  The learned sentencing judge declared four days spent in pre-sentence custody from 2 August 2014 to 4 August 2014 as imprisonment served under the sentence.[3]  Eligibility for parole was fixed at 26 October 2017.[4]

   [2]ARB23.

   [3]ARB23.

   [4]ARB23.

3. A Schedule of Facts was tendered without objection at the sentence hearing.[5]  The facts set out in paragraphs 4 to 23 of these reasons are…