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

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…

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 Smithers

Details

AGLC: R v Smithers [2013] QCA 90
Case: [2013] QCA 90
Decision Date: 22/04/2013

CaseChat Overview and Summary

The case of R v Smithers involved the applicant, Andrew Frederick Smithers, appealing against the release eligibility period set by the sentencing judge, which extended the period beyond the statutory minimum of 20 years to 25 years. Smithers was convicted of two counts of murder and one count of grievous bodily harm, with the murders occurring in March 2005 and the grievous bodily harm in May 2004. He was sentenced to life imprisonment for each murder count, with the sentence on the grievous bodily harm count being five years concurrent with the murder sentences. The appeal was filed out of time, and Smithers sought an extension of time to file his application for leave to appeal. The Court of Appeal was required to determine whether to grant an extension of time, considering factors such as the length of the delay, the explanation for the delay, and whether it was in the interests of justice to grant the extension.

The Court considered the applicant's explanation for the delay, which included a chronic psychologically unstable state and lack of awareness of the possibility to apply for an extension of time. However, the Court found that these factors were not convincing explanations for the omission and delay. The Court then assessed the viability of the appeal, focusing on whether the release eligibility period was manifestly excessive. The Court noted that the murders were committed through brutal and sustained violence on separate occasions, warranting the imposition of a release eligibility period in excess of the statutory 20 years. The Court also observed that the early guilty plea did not counterbalance the severity of the crimes, but it could have resulted in a higher sentence if not for the plea. The Court concluded that the release eligibility period imposed by the sentencing judge was not manifestly excessive and that the appeal would have negligible prospects of success.

Based on the above, the Court of Appeal, consisting of Holmes JA, White JA, and Gotterson JA, unanimously refused the application for an extension of time to file the appeal against sentence. The Court determined that the explanation for the delay was insufficient, and the viability of the appeal was low due to the severity of the crimes and the appropriate nature of the sentence imposed by the sentencing judge. As a result, the Court upheld the release eligibility period of 25 years, and Smithers' appeal against sentence was dismissed.

Orders