R v Smith - [2004] QCA 31

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smith [2004] QCA 31

PARTIES:

R
v
SMITH, Joshua Vincent
(applicant)

FILE NO/S:

CA No 19 of 2004
DC No 199 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

18 February 2004

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2004

JUDGES:

de Jersey CJ and McPherson and Williams JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for leave to appeal against sentence refused

2. Liberty to apply as to a declaration of pre-sentence custody

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS – PLEA OF GUILTY, CONTRITION AND CO-OPERATION – ASSISTANCE TO AUTHORITIES AND CO-OPERATION – where appellant took part in an offence of armed robbery – where appellant gave himself up and identified co-offenders – whether sentencing judge acknowledged all relevant considerations

COUNSEL:

S J Hamlyn-Harris for the appellant
R G Martin for the respondent

SOLICITORS:

Carew Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE: We have had the benefit of particularly comprehensive written material from Mr Hamlyn-Harris who appeared for the applicant and in light of that and the Crown's material and the oral submissions, we are able to deal with the matter now, and there is a particular reason why we should deal with the matter now having regard to the short term of custody to which the applicant is subject.

He is an 18 year old man who when aged 17 took part on the 16th of March 2003 in an offence of armed robbery in company with personal violence. He was the driver of three other male persons who robbed a convenience store in the late evening. The others had prior criminal experience. One of those others was the instigator and it was he who enlisted the services of the applicant.

It was a serious instance of armed robbery with five persons in the shop kicked and threatened and in the case of one of them, struck with a rifle butt and cut with a knife. Money and cigarettes were stolen.

The applicant who waited five to 10 minutes in the car while the robbery took place knew that weapons were to be used, although he had identified only a baseball bat. In any event, as a matter of criminal responsibility, he must now bear responsibility for what occurred, and what occurred was particularly violent.

It must be said that the driver of three armed men bent on a robbery in company must foresee the real prospect of significant personal violence not to say terror.

Ten days after the offence the applicant took the step of giving himself up to the police and in the public interest he identified his co-offenders. They were, in consequence, arrested and the applicant is to…

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 [2004] QCA 31
Case: [2004] QCA 31
Decision Date: 18 February 2004

CaseChat Overview and Summary

The case of R v Smith involved the appellant, who was convicted for his involvement in an armed robbery. The appeal was directed against the sentence imposed by the sentencing judge. The appellant, who had pleaded guilty, had co-operated with the authorities by turning himself in and identifying his co-offenders. The High Court of Australia was tasked with determining whether the sentencing judge had properly acknowledged all relevant considerations in arriving at the sentence.

The primary legal issue before the Court was whether the sentencing judge had failed to take into account all relevant considerations in the appellant's favour, including his plea of guilty, his contrition, and his co-operation with the authorities. The Court had to examine the sentencing remarks to ensure that they reflected all the mitigating factors presented by the appellant. Additionally, the Court needed to assess whether the sentence imposed was manifestly inadequate or excessive in light of the totality of the circumstances.

The Court found that the sentencing judge had indeed acknowledged and considered the relevant mitigating factors, including the appellant's plea of guilty, his expressions of contrition, and his co-operation with the authorities. The Court held that the sentence imposed was neither manifestly inadequate nor excessive, taking into account all the circumstances of the case. The Court was satisfied that the sentencing judge had exercised their discretion appropriately and had not overlooked any significant mitigating factors. Consequently, the application for leave to appeal against the sentence was refused.

The Court's final orders included a refusal of the application for leave to appeal against the sentence, and liberty was granted to the appellant to apply for a declaration of pre-sentence custody. This decision underscores the importance of ensuring that all relevant mitigating factors are considered in sentencing, and it highlights the need for careful scrutiny of sentencing remarks to ensure judicial fairness.

Orders

Orders of the court

1. Application for leave to appeal against sentence refused

2. Liberty to apply as to a declaration of pre-sentence custody

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 [2004] QCA 31
PARTIES:	R v SMITH, Joshua Vincent (applicant)
FILE NO/S:	CA No 19 of 2004 DC No 199 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	18 February 2004
DELIVERED AT:	Brisbane
HEARING DATE:	18 February 2004
JUDGES:	de Jersey CJ and McPherson and Williams JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence refused 2. Liberty to apply as to a declaration of pre-sentence custody
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS – PLEA OF GUILTY, CONTRITION AND CO-OPERATION – ASSISTANCE TO AUTHORITIES AND CO-OPERATION – where appellant took part in an offence of armed robbery – where appellant gave himself up and identified co-offenders – whether sentencing judge acknowledged all relevant considerations
COUNSEL:	S J Hamlyn-Harris for the appellant R G Martin for the respondent
SOLICITORS:	Carew Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent