Smiler v The Queen - [2018] NTCCA 2

CITATION:Smiler v The Queen [2018] NTCCA 2

PARTIES: SMILER, Robert Kevin

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Northern Territory jurisdiction
FILE NO:CA 8 of 2017 (21628678)
DELIVERED:  2 March 2018
HEARING DATES:  2 March 2018
JUDGMENT OF:  Grant CJ, Southwood J and Mildren AJ
CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – SERIOUS HARM
Whether sentence manifestly excessive – serious harm – no intention to cause serious harm – assault with a weapon – sentence of nine years’ imprisonment – regard must be had to the objective seriousness of the offence and where it sits in the range of seriousness, whether there are any aggravating factors, and whether there were any mitigating features – offence committed by the appellant fell into upper mid-range of seriousness for unlawfully causing serious harm – sentence clearly and not just arguably excessive – appeal allowed.

AB v The Queen (1999) 198 CLR 111, Cranssen v The King (1936) 55 CLR 509, Forrest v The Queen [2017] NTCCA 5, House v The King (1936) 55 CLR 499, referred to.
D Mildren, The Appellate Jurisdiction of the Australian Courts (2015 Federation Press).
REPRESENTATION:
Counsel:
Appellant:M Aust and P Coleridge
Respondent:  S Robson
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Number of pages:  12

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Smiler v The Queen [2018] NTCCA 2

No. CA 8 of 2017 (21628678)
BETWEEN:

ROBERT KEVIN SMILER

Appellant

AND:

THE QUEEN

Respondent

CORAM: GRANT CJ, SOUTHWOOD J and MILDREN AJ
REASONS FOR JUDGMENT
(Delivered 2 March 2018)
THE COURT:

On 28 April 2017, following a trial by jury, the appellant was sentenced to nine years’ imprisonment for committing the crime of unlawfully causing serious harm, and three years’ imprisonment for committing the crime of assault with circumstances of aggravation. One year and six months of the sentence of imprisonment imposed for the crime of assault was ordered to be served cumulatively on the sentence of nine years’ imprisonment for the offence of unlawfully causing serious harm. That gave a total sentence of ten years and six months. A non-parole period of five years and six months was fixed.
The maximum penalty for the crime of unlawfully causing serious harm is imprisonment for 14 years. The maximum penalty for assault with these circumstances of aggravation is imprisonment for five years.
By orders made on 26 July 2017, an extension of time within which to lodge an application for leave and leave to appeal were granted.
The two grounds of appeal are:-
(a)The sentence of imprisonment for nine years for the crime of unlawfully causing serious harm is manifestly excessive.
(b)The total sentence of imprisonment for ten years and six months is manifestly excessive.
Manifestly excessive
The principles applying to an appeal for manifest excess have been well settled…

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 Smiler v The Queen

Details

AGLC: Smiler v The Queen [2018] NTCCA 2
Case: [2018] NTCCA 2
Decision Date: 2 March 2018

CaseChat Overview and Summary

This case concerned an appeal against sentence brought by the appellant, Smiler, against the Queen. The appellant had been convicted of unlawfully causing serious harm to Peter Doucas and Eddie Aden. The sentencing judge imposed a sentence of nine years' imprisonment for the offence of unlawfully causing serious harm to Mr Aden. The appeal concerned whether this sentence was manifestly excessive.

The legal issues before the court were whether the nine-year sentence for unlawfully causing serious harm was manifestly excessive, and if so, what the appropriate sentence should be. In determining this, the court was required to consider the objective seriousness of the offence, its position within the range of seriousness for such offences, any aggravating factors, and any mitigating features.

The court reasoned that while the appellant's conduct was serious, involving an unprovoked assault with a weapon on Mr Doucas and a subsequent violent assault on Mr Aden which resulted in broken ribs and a liver injury, the nine-year sentence was clearly excessive. The court noted that the appellant was not charged with intentionally causing serious harm, which carries a higher maximum penalty, and that the offence fell into the upper mid-range of seriousness for unlawfully causing serious harm. The court found that sentences of nine years should generally be reserved for offences in the upper range of seriousness, typically involving more egregious circumstances than those present here. While there were few mitigating factors, including the appellant's criminal history and lack of remorse, the court concluded the sentence was too high.

The appeal was allowed. The original sentence of nine years' imprisonment for unlawfully causing serious harm was set aside and replaced with a sentence of six years and six months. Eighteen months of the sentence for the first offence was ordered to be served cumulatively, resulting in a total effective period of imprisonment of eight years, with a non-parole period of four years.

Orders

Orders of the court

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Background

Background to the litigation

In order to determine whether a sentence is manifestly excessive, regard must be had to all of the relevant circumstances, including the objective seriousness of the offence and where it sits in the range of seriousness, whether there are any aggravating factors, and whether there were any mitigating features.[4]The facts The facts of the offending are as follows. On 11 April 2016 the appellant and his partner were drinking alcohol. At about 7:45 pm they caught a taxi to Malabar Lodge, which is a boarding house occupied by people of generally diminished circumstances. The appellant’s partner got out of the taxi and went up the stairs. Peter Doucas and Marie Griesebner were sitting at the top of the staircase. The appellant got out of the taxi a little after his partner had gone past those two people. He ran up the staircase because he was angry with Mr Doucas. The appellant believed that Mr Doucas had inappropriately touched his partner. Mr Doucas was a skinny man in his late fifties. He was not in good health. The appellant was a lot younger, fitter and stronger than Mr Doucas. They did not know each other. When the appellant reached the top of the staircase he picked a fight with Mr Doucas. He accused him of inappropriately touching his partner. Mr Doucas denied doing so, and the appellant threw him down the staircase. The appellant followed him and assaulted him again at the bottom of the staircase. Mr Doucas ended up on the ground and was unable to defend himself. The appellant kicked him and hit him with a plastic chair. While the appellant was assaulting Mr Doucas at the bottom of the stairs, the appellant’s partner was shouting at him, “He didn’t touch me!”, and people from inside the Malabar Lodge came outside to see what was happening. At least two people – Eunice Bonson and Eddie Aden – told the appellant to stop assaulting Mr Doucas, but he would not. As a result of the assault, Mr Doucas suffered a laceration to the top of his head. Because the appellant would not stop hitting Mr Doucas, Mr Aden went to his room in the Malabar Lodge and brought out a big stick. It was approximately one metre long and 50 millimetres in diameter. He swung the stick at the appellant about five times. It is unclear how many times he actually struck the appellant with the stick. At first, being struck with the stick did not deter the appellant and he kept assaulting Mr Doucas. He then turned on Mr Aden, who ended up on the ground. While Mr Aden was on the ground and defenceless, the appellant kicked him twice – once in the ribs and once in the face. The appellant was wearing work boots when he kicked Mr Aden and he kicked him with considerable force. The kick to the ribs broke three ribs and caused a cut to Mr Aden’s liver. The appellant then picked up a weapon. It was probably Mr Aden’s stick, but it could have been a chair. Nothing turns on that matter for these purposes. In any event, the appellant picked up a weapon and delivered two or three blows to Mr Aden’s face.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

There is very little by way of mitigation. The appellant did not plead guilty but went to trial. He is not entitled to the usual discount for a plea of guilty, and as a result of his criminal history he has lost the right to any significant leniency. He is not remorseful and his prospects of rehabilitation are very largely dependent on successfully undertaking an appropriate alcohol rehabilitation program and a violent offender treatment program. He has previously participated in an alcohol rehabilitation program, but the offending with which this appeal is concerned is a tragic demonstration of his lack of success in that program.Consideration The appellant has committed two very serious crimes and there is little by way of mitigation. The sentencing judge was no doubt correct to draw those conclusions. Those matters notwithstanding, in our opinion the sentence to imprisonment for nine years imposed for count 2 is clearly and not just arguably excessive. It is important to note that the appellant was not charged with intentionally causing serious harm, which carries a maximum sentence of life imprisonment. It may also be noted that a sentence of imprisonment for nine years is comparable with some sentences that are imposed for the crimes of manslaughter contrary to s 160 of the Criminal Code, or attempting unlawfully to kill another person contrary to s 165(a) of the Criminal Code. The maximum penalty for the crime of unlawfully causing serious harm is imprisonment for 14 years. The offence committed by the appellant falls in the upper mid-range of seriousness for such offences. The crime committed by the appellant did not fall within the most serious category of such offences, which typically involve heinously gratuitous violence, marked degradation, a prolonged course of conduct and/or a male assailant and a female victim. Sentences of imprisonment for nine years should ordinarily be reserved for offences in the upper range of seriousness of such offences.Disposition The following orders are made:-1.The appeal is allowed, and the original sentence imposed in respect of the offence of unlawfully causing serious harm charged in count 2 on the indictment dated 2 February 2017 is set aside.2.The appellant is resentenced to imprisonment for six years and six months for that offence.3.Eighteen months of the original sentence of imprisonment for three years imposed in respect of the offence charged in count 1 on the indictment dated 2 February 2017 is to be served cumulatively on the sentence imposed for count 2.4.The total effective period of imprisonment is eight years.5.A non-parole period of four years is fixed.6.Both the total effective period of imprisonment and the non-parole period are to commence on 20 June 2016.