R v Smith; ex parte - [1998] QCA 220

IN THE COURT OF APPEAL	[1998] QCA 220
SUPREME COURT OF QUEENSLAND

C.A. No. 103 of 1998

Brisbane

[R. v. Smith; ex parte A-G]

THE QUEEN

GEORGE SMITH

Respondent

EX PARTE: ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Demack J. Helman J.

Chesterman J.

Judgment delivered 4 August 1998

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

APPEAL AGAINST SENTENCES DISMISSED

CATCHWORDS:	CRIMINAL LAW - Four sentences of imprisonment for four years for incest to be served concurrently with each other and cumulatively upon a sentence of imprisonment for twelve years for manslaughter - Whether sentences for incest were manifestly inadequate - totality principle applied
Counsel:	Mr D Meredith for the appellant Mr J Hunter for the respondent
Solicitors:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent
Hearing date:	19 June 1998
REASONS FOR JUDGMENT - DEMACK J.

Judgment delivered 4 August 1998

I have had the advantage of reading the reasons for judgment of both Helman J and Chesterman J. I agree that the appeal should be dismissed, and I agree with what their Honours have written.

It seems to me that one of the difficulties in this appeal arises from the sequence in which Smith’s crimes were brought before courts.

If Smith had been first charged with incest, a sentence of eight years would have been appropriate. If he were then convicted of manslaughter, the incest would have been seen as part of the background to the homicide, and a sentence of sixteen years for the homicide, served concurrently with the previous sentence would not have been inadequate. Here there is a natural tendency to look only at the offences of incest and to share the applicant’s concern that four years imprisonment is inadequate. However, when it is accepted that he was convicted of manslaughter, not murder, the effective sentence of sixteen years is in proportion to the combined seriousness of the offences.

REASONS FOR JUDGMENT - HELMAN J.

Judgment delivered 4 August 1998

On 16 January this year in the Brisbane District Court the respondent pleaded guilty to four counts of incest on his daughter Kim. On 6 March the learned sentencing judge ordered that he be imprisoned for four years on each count to be served concurrently with each other and cumulatively upon a sentence of imprisonment for twelve years imposed in the Supreme Court on 20 December 1996 after he had been tried and found not guilty of Kim’s murder but guilty of manslaughter. Her Honour recommended that the respondent be eligible for release on parole on 9 April 2004, the day he could have expected remission of his sentence for manslaughter. Prior to his being sentenced by her Honour the day he would have been eligible for parole was 18 April 2002. (The respondent had been held in custody from 18 April 1996 until he was sentenced on 20 December 1996.) The Attorney-General has appealed against the sentences for incest on…

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; ex parte

Details

AGLC: R v Smith; ex parte [1998] QCA 220
Case: [1998] QCA 220
Decision Date: 4/08/1998

CaseChat Overview and Summary

The case involved a defendant who had been sentenced to four years' imprisonment for incest and twelve years' imprisonment for manslaughter. The defendant applied for a writ of habeas corpus to challenge the adequacy of the sentences for incest, arguing they were manifestly inadequate. The court was required to determine whether the sentences imposed for the incest offences were appropriate and whether the totality principle was applied correctly.

The court examined the totality principle, which requires that the cumulative effect of multiple sentences should be proportionate to the overall gravity of the offences. The court acknowledged that the incest offences were serious but also recognised that they were concurrent with each other and cumulative with the sentence for manslaughter. The court held that the sentences for incest were not manifestly inadequate when considered in the context of the overall sentence. The court found that the trial judge had appropriately exercised their discretion in imposing the sentences and that the totality principle had been applied correctly.

The application for a writ of habeas corpus was dismissed. The court held that the sentences for incest were not manifestly inadequate and that the trial judge had correctly applied the totality principle in imposing the sentences. The defendant's application for a writ of habeas corpus was dismissed, and the sentences stood as imposed by the trial judge.

Orders