Schmith v Nolan - [2003] QCA 93

SUPREME COURT OF QUEENSLAND

CITATION: Schmith v Nolan [2003] QCA 93
PARTIES: DAWN ARLENE SCHMITH
(applicant/applicant)
v
MARK ROBERT NOLAN
(respondent/respondent)
FILE NO/S: Appeal No 10153 of 2002
DC No 171 of 2002
DIVISION: Court of Appeal
PROCEEDING: Application for Leave s 118 DCA (Civil)
ORIGINATING
COURT: District Court at Maryborough
DELIVERED EX 10 March 2003
TEMPORE ON:
DELIVERED AT: Brisbane
HEARING DATE: 10 March 2003
JUDGES: Davies and Jerrard JJA and Atkinson J
Separate reasons for judgment of each member of the Court,
Davies and Jerrard JJA concurring as to the order made,
Atkinson J dissenting
ORDER: Application for leave to appeal refused
CATCHWORDS: CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY - COMPENSATION - QUEENSLAND - where respondent pleaded guilty to entering premises and stealing - where District Court dismissed application for compensation pursuant to the Criminal Offence Victims Act (Qld) 1995 - whether personal offence was taken into account by sentencing judge - whether question of construction of the Criminal Offence Victims Act (Qld) 1995 arose
Criminal Offence Victims Act (Qld) 1995, s 24 Penalties and Sentences Act (Qld) 1992, s 189
COUNSEL: S D Guttridge for the applicant
No appearance for the respondent
SOLICITORS: Lewis & McNamara (Hervey Bay) for the applicant
No appearance for the respondent

DAVIES JA: This is an application for leave to appeal from a judgment in the District Court on 9 October 2002. The judgment was one dismissing an application for compensation pursuant to the Criminal Offence Victims Act 1995.

The respondent to that and this application pleaded guilty in

the District Court on 14 March 2002, to, amongst other

offences, 19 counts of entering premises and stealing. One of

those counts was an offence committed at 4.50 p.m. on 3 April

2001, at a store called "Fisherman's Feast", at Chermside. In	20
a schedule tendered as an exhibit before the learned sentencing judge, in which all offences were briefly described, this offence was described as follows, and I quote:

"At about 4.50 p.m. the accused entered the store and 30
after paying for a small item, reached over the counter
and grabbed money from the till where a struggle ensued."

In another column of the schedule, presumably for the

description of the place where the offence occurred or the

complainant, there is noted - and I quote:

"Fisherman's Feast - Chermside - Dawn Schmith."

In describing the entering and stealing offences to the

learned sentencing judge, the prosecutor said:

"There were one or two instances where the ladies behind
the counter or the till attempted to stop the accused,
where they tried to grab the money, but no force was
perpetrated against them in person by the accused - the
prisoner was successful in getting it and running away."
2 60

The prosecutor then went on to distinguish the offences before the learned sentencing judge, from the offences upon…

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 Schmith v Nolan

Details

AGLC: Schmith v Nolan [2003] QCA 93
Case: [2003] QCA 93
Decision Date: 10/03/2003

CaseChat Overview and Summary

The case of Schmith v Nolan was heard in the Queensland District Court, where the respondent, Nolan, pleaded guilty to entering premises and stealing. The applicant, Schmith, subsequently applied for compensation under the Criminal Offence Victims Act (Qld) 1995. The District Court dismissed the application, prompting the applicant to seek leave to appeal the decision. The primary issue before the court was whether the sentencing judge had taken into account that the offence was personal, and whether this consideration affected the availability of compensation under the Act.

The court addressed the question of whether the sentencing judge had indeed considered the personal nature of the offence when imposing the sentence. The court examined the sentencing remarks to determine if this factor influenced the punishment handed down. Furthermore, the court explored the interpretation of the Criminal Offence Victims Act (Qld) 1995 to ascertain whether the personal nature of the offence could be a relevant factor in determining compensation. The court considered the statutory language and legislative intent to ensure the correct application of the Act.

After thorough analysis of the sentencing remarks and statutory provisions, the court concluded that the sentencing judge had not explicitly taken into account the personal nature of the offence. The court determined that the absence of such consideration did not preclude the applicant from seeking compensation under the Act. However, the court found that the applicant had not demonstrated that the judge's failure to consider this factor warranted a different outcome in terms of compensation. Consequently, the court upheld the District Court's decision to dismiss the application for compensation.

The court refused the application for leave to appeal, affirming the decision of the District Court. This outcome underscores the importance of clear and explicit judicial consideration of relevant factors during sentencing, as well as the need for a proper application of statutory provisions in determining compensation for victims of crime.

Orders

Orders of the court

Application for leave to appeal refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Schmith v Nolan [2003] QCA 93
PARTIES:	DAWN ARLENE SCHMITH (applicant/applicant) v MARK ROBERT NOLAN (respondent/respondent)
FILE NO/S:	Appeal No 10153 of 2002 DC No 171 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Maryborough
DELIVERED EX	10 March 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	10 March 2003
JUDGES:	Davies and Jerrard JJA and Atkinson J Separate reasons for judgment of each member of the Court, Davies and Jerrard JJA concurring as to the order made, Atkinson J dissenting
ORDER:	Application for leave to appeal refused
CATCHWORDS:	CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY - COMPENSATION - QUEENSLAND - where respondent pleaded guilty to entering premises and stealing - where District Court dismissed application for compensation pursuant to the Criminal Offence Victims Act (Qld) 1995 - whether personal offence was taken into account by sentencing judge - whether question of construction of the Criminal Offence Victims Act (Qld) 1995 arose
Criminal Offence Victims Act (Qld) 1995, s 24 Penalties and Sentences Act (Qld) 1992, s 189
COUNSEL:	S D Guttridge for the applicant No appearance for the respondent
SOLICITORS:	Lewis & McNamara (Hervey Bay) for the applicant No appearance for the respondent

"At about 4.50 p.m. the accused entered the store and	30
after paying for a small item, reached over the counter and grabbed money from the till where a struggle ensued."