R v Smithers

[2013] QCA 90

[2013] QCA 90

COURT OF APPEAL

HOLMES JA
WHITE JA
GOTTERSON JA

CA No 21 of 2013
SC No 559 of 2006
SC No 978 of 2006

THE QUEEN

v

SMITHERS, Andrew Frederick  Applicant

BRISBANE

DATE 22/04/2013

JUDGMENT

HOLMES JA:  I'll ask Justice Gotterson to give his reasons first.

GOTTERSON JA:  On the 15th of December 2006, the applicant was convicted, on pleas of guilty, of two counts of murder and one count of grievous bodily harm.  The murders were committed in March 2005 and the grievous bodily harm in May 2004.

He was sentenced to life imprisonment on each murder count. In making the order required by s 305(2)(a) of the Criminal Code, as it was enacted then, the learned sentencing Judge exercised the power conferred by the section to extend beyond 20 years the period to be served by the applicant before he becomes eligible for release.  The period was extended to 25 years.

The sentence on the grievous bodily harm count, which involved a senseless attack causing serious brain injury to a young woman, is five years concurrent with the murder sentences.

The applicant wishes to appeal against the release eligibility period.  His objective is to have that period reduced to 20 years.  His application for leave to appeal was filed out of time, by almost seven years.  He requires a grant of extension of time within which to file his application for leave.

In determining whether an extension should be granted, the Court will consider the length of the delay, the explanation for it, and whether it is in the interests of justice to grant the extension, the last of which “may involve some assessment of whether the appeal seems to be a viable one”: R v Tait [1999] 2 Qd R 667.

The application document here was filed on 1 February 2013.  It contains a statement by the applicant in which he attributes the failure to apply for leave within the 30 day period allowed and the long interval thereafter, to two factors. 

One is a chronic psychologically unstable state in which he had been heavily medicated and had attempted suicide on several occasions.  The other is that he was unaware of being able to apply for an extension of time until recently.  Neither factor is sworn to by him.  There is no medical evidence adduced which might support a conclusion that he was incapacitated from filing an application for leave to appeal until this year.

Whilst these factors are not convincing explanations for omission and delay, in my view, it is the viability of the appeal that is the determinative factor here for the decision whether to grant or refuse an extension of time, and I now turn to consider that issue.

The murders were committed on a rural property at Eudlo, where the applicant and his wife lived in a tent.  The victims were the owner, a male, and his partner, a female, who resided there in a cabin.  The sequence of events was that the female victim was murdered first.  The injuries inflicted on her were extensive.  She was beaten about the face and chest and sustained a broken nose.  Multiple stab wounds were inflicted, six to the neck, where major arteries were punctured.  Twelve wounds were inflicted to her chest.  They measured 16 to 19 centimetres in depth, eight of them punctured her heart and lungs.

When the male victim returned to the property, he was murdered in an arguably more cruel way.  His hands were tied behind his back and a rope placed around his neck, he was stabbed 50 to 60 times.  The wounds inflicted to the victim's neck were too many to be separately identifiable.  Defensive wounds were evident on his hands.  Twenty-six chest wounds were identified, as were seven stab wounds to the back.  His ordeal also involved appalling assaults around the head and face with a fire poker.  Evidently, the victim was alive for the beatings and stabbings and remained alive in altered states of consciousness for an extended period of time before he was strangled by the applicant.

At the sentence hearing, the prosecution argued for an extension of the release eligibility period to 30 years.  The applicant's counsel submitted that there should be no extension, with eligibility to arise at the expiration of the then statutory period of 20 years.

The learned sentencing Judge made the following observations in his sentencing remarks on that issue.

"The question is whether these offences are so intrinsically serious that a longer parole recommendation period than 20 years is required.  I have come to the conclusion that the sequential nature of the killings is a factor that must be taken into account.  This was not a case where there was an incident in which two people who were involved in the incident, were killed in the course of one definable incident.  The female victim was killed whilst the other was away.  When he came back, he was killed, and one of the features of the case that is particularly disturbing is that you said things to the police that seemed to blame them for the plight that they found themselves in."

His Honour was satisfied that he should increase the parole eligibility dated to 25 years from the date of sentence.

The applicant's proposed ground of appeal is that the sentence is manifestly excessive in that the release eligibility date was fixed beyond 20 years.  He claims that insufficient regard was paid to his plea of guilty.  He refers to two cases in which, he says, worse offenders were sentenced to less time.  These cases are the R v Hayes [2008] QCA 371 and the R v Long; ex parte Attorney-General (Qld) [2003] QCA 77.

In Hayes, the offender deliberately set fire to a house in which three people well known to him were sleeping.  He harboured intense resentment towards the male occupant.  The three perished in the fire.

In Long, the offender was convicted of two counts of murder arising out of his setting fire to a hostel housing a number of guests.

These two cases differ significantly from this one.  In both of them, the multiple deaths resulted from a single act whereas, here, the deaths resulted from gross brutality visited upon two victims at successive but distinctly different times.  Factually, they are not compelling analogues of the present case.

In R v Maygar; ex parte Attorney-General (Qld) [2007] QCA 310, Keane JA cited, without criticism, the sentence imposed on the applicant by the learned sentencing Judge as an illustration of the exercise of the power for the s 305(2)(a).

His Honour regarded the case before the Court as worse, and set the release eligibility period at 30 years.  The other members of the Court agreed.  In that case, the offender entered late pleas of guilty to one count of manslaughter, two counts of murder and four counts of rape.  The offences arose out of a night of extraordinary terror in which the offender and two co-offenders used excessive and protracted violence to kill three people.

As the decision in Maygar confirms, the circumstances here of multiple acts of sustained and brutal violence on separate occasions, each resulting in the death of the victim warranted the imposition of a release eligibility period in excess of the statutory 20 years.  The early guilty plea made in the face of an overwhelming case didn't counter-balance against that.  But for the plea of guilty, a higher sentence could properly have been imposed.  The release eligibility period imposed by his Honour was not manifestly excessive.

For these reasons, I consider that this ground of appeal would have negligible prospects of success.  Accordingly, I would refuse the application for an extension of time.

HOLMES JA:  I agree.

WHITE JA:  I agree with Justice Gotterson's reasons and his proposed order refusing the applicant an extension of time.

HOLMES JA:  The application for an extension of time within which to apply for leave to appeal against sentence is refused.