R v. Smith - [2008] QCA 133

[2008] QCA 133

COURT Of APPEAL

MUIR JA
MACKENZIE AJA
JONES J

CA No 4 of 2008

THE QUEEN

DARREN RAYMOND SMITH

TOWNSVILLE

DATE 29/05/2008

JUDGMENT

MUIR JA: The applicant was convicted on his own plea of guilty in the Supreme Court at Townsville on 10 December 2007 of the offence of grievous bodily harm and sentenced to five years' imprisonment. It was declared that he had been convicted of a serious violent offence and 549 days of presentence custody was declared as time already served under the sentence.

The complainant was the applicant's de facto wife who at the time was 20 weeks pregnant with the applicant's child. The applicant was aged 34 years and the complainant was 37.

On 10 February 2006 a police officer driving past the home of the applicant and the complainant, saw the complainant cowering on the corner of a seat in a bus stop in front of the house. She had blood on her face and the applicant was standing over her in a threatening manner.

When the police officer approached the bus stop the applicant ran into the house. The police officer was informed by the complainant that she had been kicked and punched to the head and body by the applicant. The applicant approached the police officer and was arrested.

The complainant was admitted to hospital writhing in pain. Bruises covered her entire body. She had an obviously displaced nose which was swollen and appeared to be broken. An ultrasound examination revealed a large haematoma to her right kidney and free fluid about the kidney. A laparotomy revealed extensive bruising in the cavity covering her abdomen, a bruised kidney, necrosis of part of the digestive tract and pancreatic malfunction.

The complainant was critically ill between 12 February and 17 February and gave birth on 24 February 2006 to a child who died shortly afterwards.

In an operation on 27 February part of the complainant's pancreas and all of her spleen were removed. The surgery disclosed complete disruption of the pancreatic neck, distal pancreatic necrosis, and a large amount of infected fibrinous material. The complainant required weeks of jejunal feeding to maintain her nutrition and antibiotics to treat numerous infections.

After making a slow recovery she was discharged on 26 April 2006. She will require medication for the remainder of her life and is more susceptible to infections. It is probable that she will require hospitalisation from time to time as a result of the abdominal problems. Shunts in her head to relieve a condition of fluid on the brain which had been inserted well prior to the assault make her more susceptible to infections.

The applicant had been convicted of breaching domestic violence orders in respect of the complainant on 19 October 2002 and 4 January 2003, and the subject offence was committed by the applicant in breach of a domestic violence order.

On the day of the offence the applicant pleaded guilty to breach of the order and was…

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 [2008] QCA 133
Case: [2008] QCA 133
Decision Date: 29 May 2008

CaseChat Overview and Summary

The applicant, Darren Raymond Smith, was convicted of the offence of grievous bodily harm and sentenced to five years' imprisonment in the Supreme Court at Townsville. The victim, Smith's de facto wife who was 20 weeks pregnant at the time, sustained severe injuries, including a broken nose, kidney damage, and internal bleeding. The attack also resulted in the death of the unborn child. Smith was also subject to a domestic violence order at the time of the offence. Smith sought leave to appeal against the sentence on the grounds that it was manifestly excessive.

The court considered whether the primary judge had erred in making the serious violent offender declaration and in setting the sentence. The court found that the primary judge had not adopted a two-step process in making the declaration, but had considered it as part of the overall sentence. The court also considered comparable cases and found that the sentence was within the appropriate range for the offence of grievous bodily harm. The court concluded that the sentence was not manifestly excessive.

The Court of Appeal dismissed the application for leave to appeal. The Court found that the sentence was within the appropriate range for the offence and that the primary judge had not erred in making the serious violent offender declaration. The Court also noted that the severity of the attack and the resulting injuries to the victim justified the sentence imposed.

Orders