R v Smyth - [2019] QCA 239

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smyth [2019] QCA 239

PARTIES:

R
v
SMYTH, Cheyenne Elizabeth Karen
(applicant)

FILE NO/S:

CA No 177 of 2019
DC No 141 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 27 June 2019 (Ryrie DCJ)

DELIVERED ON:

5 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

8 October 2019

JUDGE:

Philippides and McMurdo JJA and Boddice J

ORDERS:

1.   Leave to appeal be granted.

2.   Leave to adduce further evidence be granted.

3.   The appeal against sentence be allowed.

4.   The sentences below be set aside.

5.   The applicant be resentenced:

(a)   On count 1, to 12 months imprisonment.

(b)   On count 2, to 2 years 6 months imprisonment.

(c)    On count 3, to 6 months imprisonment.

The sentences of imprisonment are to be served concurrently. Convictions are recorded in respect of each count.

6.   The five days served in custody between 27 June 2019 and 2 July 2019 are declared as time served in respect of those sentences of imprisonment.

7.   The applicant’s parole release date is set at the date of these orders.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS OF INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of attempted entering premises with intent to commit an indictable offence, one count of armed robbery, in company, and one count of unlawfully using a motor vehicle to facilitate the commission of an indictable offence – where the applicant was sentenced to two years imprisonment on the count of armed robbery in company and lesser, but concurrent, terms of imprisonment for the remaining counts – where the applicant’s parole release date was set at the three months mark – whether the sentencing judge erred by proceeding on the basis that any application to Queensland Corrective Services by the applicant to have her infant child accommodated with her in custody would be processed quickly, would be approved and the infant child would be accommodated with the applicant whilst in custody – whether the imposition of a sentence requiring actual imprisonment rendered the sentence manifestly excessive, having regard to the applicant’s circumstances

R v Cutrona[2013] QCA 373, considered
R vDullroy and Yates; Ex parte Attorney-General (Qld)[2005] QCA 219, considered
R v Mitchell[2005] QCA 178, considered
R v Sherman[2007] QCA 322, considered

COUNSEL:

J B Horne for the applicant
S J Hedge for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

PHILIPPIDES JA: For the reasons given by Boddice J, I agree with the orders proposed by his Honour.
McMURDO JA: I agree with Boddice J.
BODDICE J: On 30 April 2019, the applicant pleaded guilty to one count of attempted entering premises with intent to commit an indictable offence, one count of armed robbery, in company, and one count of unlawfully…

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 Smyth

Details

AGLC: R v Smyth [2019] QCA 239
Case: [2019] QCA 239
Decision Date: 5 November 2019

CaseChat Overview and Summary

In the matter of R v Smyth, the applicant appealed against her sentence, arguing that it was manifestly excessive and inadequate. The applicant pleaded guilty to one count of attempted entering premises with intent to commit an indictable offence, one count of armed robbery in company, and one count of unlawfully using a motor vehicle to facilitate the commission of an indictable offence. She was sentenced to two years imprisonment on the count of armed robbery in company and lesser, but concurrent, terms of imprisonment for the remaining counts. The applicant’s parole release date was set at the three months mark.

The legal issues before the court were whether the sentencing judge erred by proceeding on the basis that any application to Queensland Corrective Services by the applicant to have her infant child accommodated with her in custody would be processed quickly, would be approved, and the infant child would be accommodated with the applicant whilst in custody. The court was also required to determine whether the imposition of a sentence requiring actual imprisonment rendered the sentence manifestly excessive, having regard to the applicant’s circumstances.

The court found that the sentencing judge erred in proceeding on the assumption that the applicant would be reunited with her baby whilst in custody. The court found that this error infected the sentencing discretion and that the sentence was manifestly excessive. The court also found that the imposition of a sentence requiring actual imprisonment rendered the sentence manifestly excessive, having regard to the applicant’s circumstances. The court set aside the sentences below and resentenced the applicant to 12 months imprisonment on count 1, 2 years 6 months imprisonment on count 2, and 6 months imprisonment on count 3. The sentences of imprisonment are to be served concurrently. The applicant’s parole release date is set at the date of these orders. The five days served in custody between 27 June 2019 and 2 July 2019 are declared as time served in respect of those sentences of imprisonment.

Orders

Orders of the court

1. Leave to appeal be granted.

2. Leave to adduce further evidence be granted.

3. The appeal against sentence be allowed.

4. The sentences below be set aside.

5. The applicant be resentenced:

(a) On count 1, to 12 months imprisonment.

(b) On count 2, to 2 years 6 months imprisonment.

The sentences of imprisonment are to be served concurrently. Convictions are recorded in respect of each count.

6. The five days served in custody between 27 June 2019 and 2 July 2019 are declared as time served in respect of those sentences of imprisonment.

7. The applicant’s parole release date is set at the date of these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The respondent further submits that, in circumstances where there is no challenge to the overall head sentence, a sentence requiring the applicant to serve three months actual custody is not manifestly excessive. The applicant’s offending involved serious offences, including an armed robbery committed in company, whilst the applicant was using methylamphetamine. There was no evidence, other than self-reporting, that the applicant was now drug free. Against that background, a sentencing requiring the applicant to serve but one eighth of the head sentence in actual custody afforded substantial leniency evidencing an appropriate recognition of the applicant’s relative youth, lack of criminal history and family circumstances.Consideration The applicant’s contention that the sentencing discretion was infected by specific error is relied upon in support of both grounds. The applicant concedes that absent the establishment of that specific error, it will be difficult for the applicant to succeed in establishing that the sentence was manifestly excessive. That concession is rightly made in the circumstances of the present case. The applicant engaged in offending involving two separate convenience stores, knowing that on each occasion at least one of the male offenders was armed with a baseball bat. In the case of the armed robbery in company, the applicant entered the premises and actively participated by removing the money from the cash register. Whilst the applicant was not armed and was the mother of a very young child, absent identification of a specific error in the sentencing principles, an exercise of the sentencing discretion requiring that the applicant serve a period of actual imprisonment, evidenced neither a misapplication of principle nor resulted in a sentence which was plainly unjust. An effective head sentence of two years imprisonment, with a parole release date after serving three months in actual custody, for such offending was lenient, particularly when regard is had to the aggravating feature of the applicant’s active participation in the armed robbery in company, and the lack of independent evidence of rehabilitation from the use of illicit substances. A conclusion that such a sentence was lenient is supported by a consideration of the comparable authorities referred to at sentence.[2][2]R v Mitchell [2005] QCA 178; R vDullroy and Yates; Ex parte Attorney-General (Qld) [2005] QCA 219; R v Sherman [2007] QCA 322; R v Cutrona [2013] QCA 373. There is, however, substance in the applicant’s contention that the sentencing discretion was infected by specific error, namely, that it was exercised on the assumption the applicant would be reunited with her baby whilst in custody. In the sentencing remarks, the sentencing Judge said, in relation to a submission by defence counsel that the sentence imposed not include a requirement that the applicant serve actual imprisonment:“There is provision, as I am aware, and I am conscious that where babies are entitled to go with their mothers for periods of time in custody with their mothers and those applications can be made forthwith, particularly where there has been an incarceration where a baby may well be of tender age, such as your little baby.”[3][3]AB29/20.

CITATION:	R v Smyth [2019] QCA 239
PARTIES:	R v SMYTH, Cheyenne Elizabeth Karen (applicant)
FILE NO/S:	CA No 177 of 2019 DC No 141 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 27 June 2019 (Ryrie DCJ)
DELIVERED ON:	5 November 2019
DELIVERED AT:	Brisbane
HEARING DATE:	8 October 2019
JUDGE:	Philippides and McMurdo JJA and Boddice J
ORDERS:	1. Leave to appeal be granted. 2. Leave to adduce further evidence be granted. 3. The appeal against sentence be allowed. 4. The sentences below be set aside. 5. The applicant be resentenced: (a) On count 1, to 12 months imprisonment. (b) On count 2, to 2 years 6 months imprisonment. (c) On count 3, to 6 months imprisonment. The sentences of imprisonment are to be served concurrently. Convictions are recorded in respect of each count. 6. The five days served in custody between 27 June 2019 and 2 July 2019 are declared as time served in respect of those sentences of imprisonment. 7. The applicant’s parole release date is set at the date of these orders.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS OF INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of attempted entering premises with intent to commit an indictable offence, one count of armed robbery, in company, and one count of unlawfully using a motor vehicle to facilitate the commission of an indictable offence – where the applicant was sentenced to two years imprisonment on the count of armed robbery in company and lesser, but concurrent, terms of imprisonment for the remaining counts – where the applicant’s parole release date was set at the three months mark – whether the sentencing judge erred by proceeding on the basis that any application to Queensland Corrective Services by the applicant to have her infant child accommodated with her in custody would be processed quickly, would be approved and the infant child would be accommodated with the applicant whilst in custody – whether the imposition of a sentence requiring actual imprisonment rendered the sentence manifestly excessive, having regard to the applicant’s circumstances R v Cutrona[2013] QCA 373, considered R vDullroy and Yates; Ex parte Attorney-General (Qld)[2005] QCA 219, considered R v Mitchell[2005] QCA 178, considered R v Sherman[2007] QCA 322, considered
COUNSEL:	J B Horne for the applicant S J Hedge for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent