R v Smith - [2000] QCA 169

[2000] QCA 169

COURT OF APPEAL

McPHERSON JA
DAVIES JA
MACKENZIE J

[R v Smith]

CA No 409 of 1999

THE QUEEN

CRAIG PETER SMITH Applicant

BRISBANE

..DATE 09/05/2000

JUDGMENT

McPHERSON JA: This is an application for leave to appeal against a sentence imposed after a trial in the circuit Court at Bundaberg. The applicant was charged with the murder of the deceased woman, but was convicted by the jury of the offence of manslaughter.

The circuit Judge proceeded then to sentence him to a term of imprisonment for nine years, and added a declaration that the offence was one which amounted to a serious violent offence. There was, it may be said for completeness, also a declaration that the applicant had already spent 304 days in custody.

The circumstances of the offence can be summarised as follows. It took place on about 23 January 1999 at the home of the applicant and the victim at Bargara near Bundaberg. He and the deceased had been in a relationship for about three years. They had one child, and at the time of the offence the victim was six months pregnant with a second child.

On the night in question, they went to the local bowls club, where they both consumed liquor. The applicant left midway through the evening, taking his young daughter with him. She, I might mention, is, or at about that time was, about a year or 11 months old.

The deceased remained at the club after the applicant and her daughter had left, and was dropped off at their home at some time between 11.30 p.m. and midnight. After that, some of the neighbours nearby heard raised voices coming from the applicant's house. That was at about one in the morning. They were able to distinguish some of what was being said, and it is apparent that each of those involved was making strong statements to the other.

Nothing more was then heard until, as it now turns out, at about 4.00 a.m., when the applicant drove the deceased's limp body to the Bundaberg Base Hospital. Medical staff made efforts to try to resuscitate her from the state of unconsciousness she was in, but despite their efforts both she and her unborn child died.

At the time this was taking place at the hospital, the applicant was overheard saying that he had pushed the deceased, that she had fallen over and hit her head on the concrete and that he had brought her straight to the hospital. It is quite plain that that account was not correct.

The pathologist who examined the deceased after her death found that she had sustained severe injuries to her skull and brain of the type which he described as being very commonly encountered in motor vehicle accidents. There was a fracture to the base of the skull which extended from the inner left ear to the inner right ear. The pathologist, Dr Williams, also found an extra dural haemorrhage, minor amounts…

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 [2000] QCA 169
Case: [2000] QCA 169
Decision Date: 09/05/2000

CaseChat Overview and Summary

In this case, the applicant, Craig Peter Smith, appealed against his sentence imposed following his conviction for manslaughter. The applicant was sentenced to nine years in prison and was declared to be a serious violent offender. The applicant's only contention was whether the sentencing judge erred in declaring him a serious violent offender. The applicant's criminal history was not such as would ordinarily attract such a declaration, but the court found that the severity of the killing and the violence involved in it warranted such a declaration. The court held that although the sentencing judge did not invite submissions from the defence or give specific reasons for making the declaration, the declaration was made based on proper grounds. The court also found that the sentencing judge's reliance on the applicant's prior conviction for possessing an unlicensed firearm did not vitiate the declaration as it was not linked to the current offence in any realistic way.

The court found that the applicant's criminal history was not as serious as many histories that end in tragic outcomes. The court also noted that the applicant had not committed any further offences since 1994. The court held that the declaration was plainly open and appropriate given the severe nature of the killing and the violence that was involved in it. The court found that the declaration was not wrongly made and dismissed the application for leave to appeal against sentence. The court held that the sufficiency of sentencing remarks concerning a declaration that the offender is a serious violent offender will vary according to the circumstances of individual cases. The court found that this case fell into the category where the description of the offender as a serious violent offender was not really in dispute, and the threshold of sufficiency of the reasons was lower.

Orders