Smiler v The Queen

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.