| 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
v.
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…
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- R v Smith; ex parte [1998] QCA 220
- Case
- [1998] QCA 220
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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