R v Smith - [2000] QCA 127

[2000] QCA 127

COURT OF APPEAL

McMURDO P
DAVIES JA
HELMAN J

[R v Smith]

CA No 405 of 1999

THE QUEEN

SCOTT ANDREW SMITH Applicant

BRISBANE

..DATE 11/04/2000

JUDGMENT

THE PRESIDENT: Justice Davies will deliver his reasons first.

DAVIES JA: The applicant pleaded guilty in the District Court on 2 December last year to a number of offences. They were one of receiving stolen property, two of entering premises and stealing, four of fraud, two of stealing, two of breaking, entering and stealing, one of attempted burglary with intent to commit an indictable offence and six of burglary and stealing. All these offences were committed between 1 August 1998 and 26 July 1999.

His prior criminal history consisted only of a conviction on 8 April 1999 for possession of property being stolen for which he was fined and one on 29 July 1999 for breach of a bail undertaking for which again he was fined. They were prior to his sentencing in this case but not prior to the commission of the first of the offences I have just referred to. It follows from what I have said that he has not previously been sent to gaol.

In respect of the offences the subject of the present application the applicant was sentenced on each count to three months imprisonment and three years probation. The applicant committed the first three of the offences the subject of the present sentence between 1 August 1998 and
15 October 1998. Then on 10 November 1998 he was arrested for the offence of possession of property suspected of being stolen.
That arrest did not deter him from his criminal activity. He committed four further offences in November and December 1998. Then, on 8 April 1999 he was convicted of the offence of property suspected of being stolen. He committed another of the offences the subject of the present application on
30 April 1999 only a few weeks after his conviction. He was then interviewed with respect to the first seven of the offences he had committed on 9 May and he was given a notice to appear. Nevertheless, he committed another four of these offences between 21 May and 10 June 1999.

He was again questioned on that day after his girlfriend's car was identified as the getaway car for one of the burglary offences. He made some admissions in respect of that offence. He then committed a further six of the offences including three further burglaries in June and July 1999. He then made admissions with respect to those offences on 28 July 1999.

Most of the property stolen consisted of easily disposable items such as compact discs, stereos, video cassette recorders, computer games and other electronic equipment, jewellery and bicycles. The value of the unrecovered property was a little under $20,000. There is no prospect of compensation.

It was submitted for the applicant here and below that the sentence imposed on him should not include a term of actual imprisonment. The…

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 127
Case: [2000] QCA 127
Decision Date: 11/04/2000

CaseChat Overview and Summary

In the case of R v Smith, the applicant, Scott Andrew Smith, appealed against his sentence for multiple offences committed between August 1998 and July 1999. These included receiving stolen property, entering premises and stealing, fraud, stealing, breaking, entering and stealing, attempted burglary with intent to commit an indictable offence, and burglary and stealing. Smith's prior criminal history was limited to two fines for possession of stolen property and breach of bail. The District Court sentenced Smith to three months imprisonment and three years probation for each offence. The appeal focused on whether the imposition of a term of actual imprisonment was appropriate given Smith's youth, lack of prior convictions, family support, employment, and cooperation with authorities.

The primary legal issue was whether the sentencing judge should have imposed an intensive correction order instead of a term of imprisonment. The Court of Appeal considered the nature and number of the offences, Smith's drug addiction, and the potential for rehabilitation. The appeal argued that Smith's drug addiction was a significant mitigating factor, but the compulsive nature of his criminal activity made rehabilitation uncertain unless his addiction was addressed. The Court acknowledged changes in sentencing laws that favoured non-custodial sentences for offenders without prior convictions. However, it also recognised that the seriousness and frequency of Smith's crimes warranted a more severe punishment than simple probation.

Davies JA, delivering the judgment of the court, concluded that the sentence imposed was manifestly excessive and that an intensive correction order with conditions to address Smith's drug addiction would be more appropriate. The court allowed the appeal, set aside the original sentence, and imposed a 12-month intensive correction order with conditions for drug rehabilitation. The President and Davies JA agreed with this decision, while Helmann J dissented, arguing that the sentencing judge's discretion was appropriately exercised given the number and gravity of the offences. The final order was as proposed by Davies JA, including the imposition of a 12-month intensive correction order with conditions for drug rehabilitation.

Orders