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R v Smith

R v Smith

Case [2010] QCA 220 24 August 2010

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Smith [2010] QCA 220

PARTIES:

R
v
SMITH, Damien Joshua
(applicant)

FILE NO/S:

CA No 154 of 2010
DC No 93 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

24 August 2010

DELIVERED AT:

Brisbane

HEARING DATE:

18 August 2010

JUDGES:

Fraser and White JJA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The application for leave to appeal against sentence is refused.

2. A warrant issue for the arrest of Damien Joshua Smith to lie in the registry for seven days.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant sentenced to 18 months imprisonment with release after serving three months upon entering into a recognizance of $500 for three years and subject to supervision for 18 months for one count of using a carriage service to access child pornography material contrary to s 474.19(1)(a)(i) of the Criminal Code 1995 (Cth) – whether sentence manifestly excessive – whether sentencing judge gave sufficient regard to applicant’s psychological issues – whether requiring the applicant to serve a period of actual imprisonment gave sufficient regard to the principle in s 17A of the Crimes Act 1914 (Cth) that imprisonment is a sentence of last resort

Crimes Act 1914 (Cth), s 17A
Criminal Code 1995 (Cth), s 474.19(1)(a)(i)

R v Gordon; ex parte Cth DPP[2009] QCA 209, considered
R v Grehan[2010] QCA 42, distinguished
R v Jones (1999) 108 A Crim R 50; [1999] WASCA 24, cited
R v Neumann; ex parte A-G (Qld) [2007] 1 Qd R 53; [2005] QCA 362, cited
R v Oliver [2003] 1 Cr App R 463; [2002] EWCA Crim 2766, cited
R v Saint-Smith, unreported, Dodds DCJ, District Court of Queensland, No 548 of 2009, 12 April 2010, distinguished
R v Sykes[2009] QCA 267, followed

COUNSEL:

S L Kissick for the applicant
A K Gett for the respondent

SOLICITORS:

No appearance for the applicant
Director of Public Prosecutions (Commonwealth) for the respondent

FRASER JA: I have had the advantage of reading the reasons for judgment of White JA. I agree with those reasons and the orders proposed by her Honour. I too record my appreciation of the assistance provided by counsel who appeared pro bono for the applicant.

WHITE JA: The applicant seeks leave to appeal a sentence imposed in the District Court on 25 June 2010 for one count of using a carriage service to access child pornography material, contrary to s 474.19(1)(a)(i) of the Criminal Code 1995 (Cth).[1] He was sentenced to 18 months imprisonment with release after serving three months upon entering into a recognizance of $500 for three years and subject to supervision for 18 months.
[1]Neither party to the appeal raised or argued the issue currently reserved…

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 [2010] QCA 220
Case: [2010] QCA 220
Decision Date: 24 August 2010

CaseChat Overview and Summary

The appellant, Damien Joshua Smith, was convicted of one count of using a carriage service to access child pornography material, contrary to section 474.19(1)(a)(i) of the Criminal Code 1995 (Cth). Smith was sentenced to 18 months imprisonment with release after serving three months upon entering into a recognizance of $500 for three years and subject to supervision for 18 months. Smith applied for leave to appeal against the sentence, arguing that it was manifestly excessive and that the sentencing judge did not give sufficient regard to his psychological issues and the principle in section 17A of the Crimes Act 1914 (Cth) that imprisonment is a sentence of last resort.

The court was required to consider whether the sentence was manifestly excessive, whether the sentencing judge gave sufficient regard to Smith's psychological issues, and whether requiring Smith to serve a period of actual imprisonment gave sufficient regard to the principle in section 17A of the Crimes Act 1914 (Cth) that imprisonment is a sentence of last resort. The court considered the nature and circumstances of the offence, Smith's background and psychological issues, and the sentencing principles set out in the Crimes Act 1914 (Cth).

The court held that the sentence was not manifestly excessive, and that the sentencing judge had given sufficient regard to Smith's psychological issues and the principle in section 17A of the Crimes Act 1914 (Cth) that imprisonment is a sentence of last resort. The court found that the sentence was appropriate in the circumstances, taking into account the seriousness of the offence, the need to deter Smith and others from committing similar offences, and the need to protect the community. The court also found that the sentencing judge had properly considered the mitigating factors, including Smith's psychological issues, and that the sentence was not disproportionate to the offence.

The application for leave to appeal against sentence was refused. A warrant was issued for the arrest of Damien Joshua Smith to lie in the registry for seven days.

Orders

Orders of the court

1. The application for leave to appeal against sentence is refused.

2. A warrant issue for the arrest of Damien Joshua Smith to lie in the registry for seven days.

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

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Actions

Citations

R v Smith [2010] QCA 220

Most Recent Citation

CDirector of Public Prosecutions v Radford [2023] VCC 1907

Cases Citing This Decision

R v AG [2024] NSWDC 536
Citation 1 (Para 1)

…Steps taken by the offender towards rehabilitation should be considered on sentence ( R v Smith [2010] QCA 220 at [18]), as one amongst several important sentencing considerations and should not be given focus at the expense of other important sentencing considerations, such as general deterrence and denunciation…
CDirector of Public Prosecutions v Radford [2023] VCC 1907
Citation 2

…harles v R [2011] VSCA 399; Brown v The Queen (2020) 62 VR 491; R v AWF [2000] VSCA 172; Beevers v R [2016] VSCA 271; R v Smith [2010] QCA 220; The Queen v Pham (2015) 256 CLR 550; R v Delzotto [2022] NSWCCA 117; Hurt v R [2022] ACTCA 49; R v Glasheen [2022] NSWCCA 191; R v Stiller [2023] QCA 51; Bahar v The Quee…
Health Ombudsman v ANP [2022] QCAT 6
Citation 3 (Para 2)

…fteen months, suspended forthwith, with an operational period of two years. [2] R v Oliver [2003] 1 Cr App Reps 28. The scale was quoted in R v Smith [2010] QCA 220 at [10]. [3]The other video may be in category 2.…
R v Brincat; Ex parte [2020] QCA 248
Citation 4 (Para 14)

…Next are two cases to which the prosecutor referred the judge in this matter, namely R v Sykes [2009] QCA 267 and R v Smith [2010] QCA 220. In Sykes , the effective sentence was one of 15 months’ imprisonment with six months to be served in actual custody. Sykes had no criminal history and there were fewer images…
R v Edwards [2019] QCA 15
Citation 5 (Para 18)

…o: R v Sykes ,[30] R v Jones ,[31] R v Gordon; Ex parte Cth DPP ,[32] R v Smith .[33] [30][2009] QCA 267. [31][2011] QCA 147. [32][2009] QCA 209. [33][2010] QCA 220.…
R v Engeln [2014] QCA 313
Citation 6 (Para 1)

…g that none of the sentences imposed should have required the applicant to serve any actual gaol time. [28][2009] QCA 33. [29][2009] QCA 267. [30][2010] QCA 220. [31][2011] QCA 385.…
R v Lovi [2012] QCA 24
Citation 7 (Para 1)

…3] [2]It seems from the agreed facts that eight videos and fewer than 200 still images were downloaded. [3] R v Sykes [2009] QCA 267; R v Smith [2010] QCA 220; R v Jones [2011] QCA 147; and R v Verburgt [2009] QCA 33.…
R v Jones [2011] QCA 147
Citation 8 (Para 1)

…period of offending in both of those cases was significantly more than the one day in this case. [6][2009] QCA 267. [7]Per Mullins J at [28]. [8][2010] QCA 220.…
R v MBM [2011] QCA 100
Citation 9

…R v Riley [2007] QCA 391, cited R v Rogers [2009] QCA 10, considered R v Salsone; ex parte A-G (Qld) [2008] QCA 220, considered R v Smith [2010] QCA 220, cited R v Sykes [2009] QCA 267, cited R v Vantoosten [2009] QCA 54, cited R v Wharley (2007) 175 A Crim R 253; [2007] QCA 295, considered COUNSEL: M P van der W…

See all citing cases →

Cases Cited

R v Grehan [2010] QCA 42
Citation 1 (Para 1)

…report from the prosecutor that the applicant was performing satisfactorily on that current probation order. [4][2009] QCA 209. [5][2009] QCA 267. [6][2010] QCA 42. [7]Unreported, Dodds DCJ, District Court of Queensland, No 548 of 2009, 12 April 2010.…
R v Sykes [2009] QCA 267
Citation 2 (Para 1)

…t received an oral report from the prosecutor that the applicant was performing satisfactorily on that current probation order. [4][2009] QCA 209. [5][2009] QCA 267. [6][2010] QCA 42. [7]Unreported, Dodds DCJ, District Court of Queensland, No 548 of 2009, 12 April 2010.…
R v Gordon; ex parte [2009] QCA 209
Citation 3 (Para 1)

…the Court. The court received an oral report from the prosecutor that the applicant was performing satisfactorily on that current probation order. [4][2009] QCA 209. [5][2009] QCA 267. [6][2010] QCA 42. [7]Unreported, Dodds DCJ, District Court of Queensland, No 548 of 2009, 12 April 2010.…
R v Vantoosten [2009] QCA 54
Citation 4 (Para 1)

…f the sentences imposed in this area of offending. It is proposed to discuss only those relied upon by counsel. See generally, R v Vantoosten [2009] QCA 54. [9]See R v Verburgt [2009] QCA 33 and the discussion about the ambit of the exception of sexual offending against children from s 9(2). [10] R v Grehan [201…
R v Verburgt [2009] QCA 33
Citation 5 (Para 1)

…a of offending. It is proposed to discuss only those relied upon by counsel. See generally, R v Vantoosten [2009] QCA 54. [9]See R v Verburgt [2009] QCA 33 and the discussion about the ambit of the exception of sexual offending against children from s 9(2). [10] R v Grehan [2010] QCA 42 per Chesterman JA at [42]…
R v Neumann; Ex parte Attorney-General (Qld) [2005] QCA 362
Citation 6 (Para 1)

…han . Furthermore, in Grehan the offender was required to serve actual imprisonment. [19] R v Neumann; ex parte A-G (Qld) [2007] 1 Qd R 53; [2005] QCA 362 at [27].…
Markarian v The Queen [2005] HCA 25
Citation 7

…[20] Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.…
R v Jones [1999] WASCA 24
Citation 8

…) R v Gordon; ex parte Cth DPP [2009] QCA 209, considered R v Grehan [2010] QCA 42, distinguished R v Jones (1999) 108 A Crim R 50; [1999] WASCA 24, cited R v Neumann; ex parte A-G (Qld) [2007] 1 Qd R 53; [2005] QCA 362, cited R v Oliver [2003] 1 Cr App R 463; [2002] EWCA Crim 2766, cited R v Saint-Smith , unrepor…

Legislation Cited

Crimes Act 1914 (Cth) 17A
2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 1)

CITATION:	R v Smith [2010] QCA 220
PARTIES:	R v SMITH, Damien Joshua (applicant)
FILE NO/S:	CA No 154 of 2010 DC No 93 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	24 August 2010
DELIVERED AT:	Brisbane
HEARING DATE:	18 August 2010
JUDGES:	Fraser and White JJA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal against sentence is refused. 2. A warrant issue for the arrest of Damien Joshua Smith to lie in the registry for seven days.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant sentenced to 18 months imprisonment with release after serving three months upon entering into a recognizance of $500 for three years and subject to supervision for 18 months for one count of using a carriage service to access child pornography material contrary to s 474.19(1)(a)(i) of the Criminal Code 1995 (Cth) – whether sentence manifestly excessive – whether sentencing judge gave sufficient regard to applicant’s psychological issues – whether requiring the applicant to serve a period of actual imprisonment gave sufficient regard to the principle in s 17A of the Crimes Act 1914 (Cth) that imprisonment is a sentence of last resort Crimes Act 1914 (Cth), s 17A Criminal Code 1995 (Cth), s 474.19(1)(a)(i) R v Gordon; ex parte Cth DPP[2009] QCA 209, considered R v Grehan[2010] QCA 42, distinguished R v Jones (1999) 108 A Crim R 50; [1999] WASCA 24, cited R v Neumann; ex parte A-G (Qld) [2007] 1 Qd R 53; [2005] QCA 362, cited R v Oliver [2003] 1 Cr App R 463; [2002] EWCA Crim 2766, cited R v Saint-Smith, unreported, Dodds DCJ, District Court of Queensland, No 548 of 2009, 12 April 2010, distinguished R v Sykes[2009] QCA 267, followed
COUNSEL:	S L Kissick for the applicant A K Gett for the respondent
SOLICITORS:	No appearance for the applicant Director of Public Prosecutions (Commonwealth) for the respondent