R v Smith - [2001] QCA 417

SUPREME COURT OF QUEENSLAND

CITATION: R v Smith [2001] QCA 417

PARTIES: R
v
SMITH, Stuart McKay
(applicant)

FILE NO/S: CA No 161 of 2001
DC No 209 of 2000
DC No 199 of 2000

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT:
District Court at Beenleigh

DELIVERED ON: 5 October 2001

DELIVERED AT: Brisbane

HEARING DATE: 25 September 2001

JUDGES:
Williams JA, Chesterman and Mullins JJ

Separate reasons for the judgment of each member of the Court, each concurring as to the order made

ORDER: Application to appeal against sentence refused

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – where applicant pleaded guilty to 18 counts of sexual offences against children – where indefinite sentence imposed for a charge of sodomy – where applicant had significant criminal history – where applicant suffered from a severe disorder of personality – whether sentencing judge applied wrong test for indefinite sentence – whether applicant a serious danger to the community – whether insufficient weight given to pleas of guilty

Penalties and Sentences Act 1992 (Qld) s 162, s 163, s 169,

s 170

Chester v The Queen (1988) 165 CLR 611, cited

COUNSEL: Mr B G Devereaux for the applicant
Mrs L J Clare for the respondent

SOLICITORS: Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: I agree that the application should be refused for the reasons stated by Chesterman J.

CHESTERMAN J: On 25 May 2000 the applicant pleaded guilty to 17 counts of sexual offences against children. On 9 June 2000 count 17 was amended to add an allegation that at the time of the offence the applicant was armed with an offensive weapon. He was re-arraigned on the amended charge and again pleaded guilty. Some immaterial amendments were made to other charges. A further indictment was presented alleging that on 25 June 1999 the applicant unlawfully procured a child under the age of 16 to perform an indecent act. He pleaded guilty to this charge as well. The applicant was sentenced on 7 June 2001. The delay was to accommodate the making of an application by the Crown for a sentence of indefinite detention which was imposed upon the applicant in respect of count 16, a charge of sodomy.

The offences to which the applicant pleaded guilty and the penalties imposed on him are:

Indictment 199/00

1 Take a Child under 12 years for immoral purposes 14 June 1999 5 years imprisonment

2 Indecent Treatment of a child under 12 years 14 June 1999 3 years imprisonment

3 Taking a Child under 12 years for immoral purposes
14 June 1999

8 years imprisonment

4 Indecent Treatment of a child under 12 years 14 June 1999 3 years imprisonment

5 Serious Assault 14 June 1999 3 years imprisonment

6 Indecent Treatment of a child under 12 years 14 June 1999 3…

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 [2001] QCA 417
Case: [2001] QCA 417
Decision Date: 5 October 2001

CaseChat Overview and Summary

The appeal in R v Smith involved the applicant who pleaded guilty to 18 counts of sexual offences against children. The sentencing judge imposed an indefinite sentence for a charge of sodomy, taking into account the applicant's significant criminal history and severe disorder of personality. The applicant sought to appeal against the sentence, arguing that the sentencing judge had applied the wrong test for an indefinite sentence, and that insufficient weight was given to his pleas of guilty. The applicant also contended that he did not pose a serious danger to the community.

The court was required to determine whether the sentencing judge had applied the correct legal test for imposing an indefinite sentence. Additionally, the court needed to consider whether the applicant was indeed a serious danger to the community, and whether the judge had appropriately taken into account the applicant's pleas of guilty when determining the sentence. The central issue was whether the sentencing judge had erred in his application of the law and assessment of the facts, leading to an unjust or inappropriate sentence.

The court found that the sentencing judge had correctly applied the relevant legal principles in imposing the indefinite sentence. The judge had considered all relevant factors, including the applicant's criminal history, the nature of the offences, and the risk posed to the community. The court held that the applicant did indeed pose a serious danger to the community, and that the sentence imposed was proportionate to the gravity of the offences. Furthermore, the court found that the judge had given appropriate weight to the applicant's pleas of guilty, and that this did not result in a manifestly inadequate sentence. The appeal against the sentence was therefore refused.

No further orders were made by the court beyond the refusal of the application to appeal against the sentence.

Orders

Orders of the court

Application to appeal against sentence 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 [2001] QCA 417
PARTIES:	R v SMITH, Stuart McKay (applicant)
FILE NO/S:	CA No 161 of 2001 DC No 209 of 2000 DC No 199 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	5 October 2001
DELIVERED AT:	Brisbane
HEARING DATE:	25 September 2001
JUDGES:	Williams JA, Chesterman and Mullins JJ Separate reasons for the judgment of each member of the Court, each concurring as to the order made
ORDER:	Application to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – where applicant pleaded guilty to 18 counts of sexual offences against children – where indefinite sentence imposed for a charge of sodomy – where applicant had significant criminal history – where applicant suffered from a severe disorder of personality – whether sentencing judge applied wrong test for indefinite sentence – whether applicant a serious danger to the community – whether insufficient weight given to pleas of guilty Penalties and Sentences Act 1992 (Qld) s 162, s 163, s 169, s 170 Chester v The Queen (1988) 165 CLR 611, cited
COUNSEL:	Mr B G Devereaux for the applicant Mrs L J Clare for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

Indictment 199/00
1	Take a Child under 12 years for immoral purposes	14 June 1999	5 years imprisonment
2	Indecent Treatment of a child under 12 years	14 June 1999	3 years imprisonment
3	Taking a Child under 12 years for immoral purposes	14 June 1999	8 years imprisonment
4	Indecent Treatment of a child under 12 years	14 June 1999	3 years imprisonment
5	Serious Assault	14 June 1999	3 years imprisonment
6	Indecent Treatment of a child under 12 years	14 June 1999	3…