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Smith v Kirkham

Smith v Kirkham

Case [2017] TASSC 3 30 January 2017

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AMENDED ON 31 JANUARY 2017

[2017] TASSC 3

COURT: SUPREME COURT OF TASMANIA

CITATION: Smith v Kirkham [2017] TASSC 3

PARTIES:  SMITH, Kia Emily Faye
  v
  KIRKHAM (Constable), Gerard

FILE NO:  1221/2016
DELIVERED ON:  30 January 2017
DELIVERED AT:  Hobart
HEARING DATE:  21 September 2016
JUDGMENT OF:  Tennent J

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Impact of intellectual deficits of offender on sentence – Application of totality principle.

Director of Public Prosecutions (Acting) v CBF [2016] TASCCA 1; Mill v The Queen (1988) 166 CLR 59, referred to.
Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Applicant:  L Pennington
             Respondent:  S Thompson
Solicitors:
             Applicant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number: [2017] TASSC 3
Number of paragraphs: 25

Serial No 3/2017
File No 1221/2016

KIA EMILY FAY SMITH v SERGEANT GERARD KIRKHAM

REASONS FOR JUDGMENT TENNENT J

30 January 2017

On 29 April 2016, the applicant was sentenced on her pleas of guilty in respect of numerous offences on several complaints. Overall, the applicant was sentenced to serve a term of imprisonment partially suspended, was made the subject of a probation order and was also made the subject of a licence disqualification. This notice to review does not seek to challenge all of the sentences imposed that day. In effect, it relates only to the sentence of imprisonment imposed. The sole ground of review is that the sentence was manifestly excessive.
The complaints referred to in the notice to review and the sentences imposed in respect of the offences detailed in them appear in the table below.

91459/15

Robbery x 2

26/10/15

Remitted to lower court. Global sentence of 2 years with 12 months suspended for a period of two years on condition applicant complies with period of supervised probation imposed on complaint number 724/16. (Period of probation imposed

Sentence a global sentence which included counts 1,2 and 3 on 7246/15, 7244/15, counts 2,3 and 4 on 7132/15, 7131/15, 7130/15, 7127/15, counts 1 and 2 on 9224/15, counts 2 and 3 on 7588/15 and counts 2 and 4 on 9200/15

9224/15

Stealing, common assault and breach of bail

27/10/15

Counts 1 and 2 covered by global order of imprisonment on 91459/15

Count 3 covered by global order of probation on 724/16

7127/15

Common assault, destroy property and stealing

31/7/15

Covered by global order on 91459/15

7130/15

Stealing

28/7/15

Covered by global order on 91459/15

7131/15

Common assault and stealing

31/7/15

Covered by global order on 91459/15

7132/15

Contravene condition of notice, stealing x 3 and drive without a licence

11/8/15

Count 1 covered by probation order on 724/16

Counts 2, 3 and 4 covered by global order on 91459/15

Count 5 covered by global order on 10407/15

7244/15

Stealing and common assault

27/8/15

Covered by global order on 91459/15

7246/15

Common assault x 2, stealing, contravene condition of notice…

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 Smith v Kirkham

Details

AGLC: Smith v Kirkham [2017] TASSC 3
Case: [2017] TASSC 3
Decision Date: 30 January 2017

CaseChat Overview and Summary

The case of Smith v Kirkham was heard in the High Court of Australia. The appellant, Smith, appealed against the sentence imposed following his conviction for a serious criminal offence. Smith, who has significant intellectual deficits, argued that the sentence was excessive. The respondent, Kirkham, was the state prosecuting authority, defending the trial judge's decision.

The court was required to determine whether the sentence was manifestly excessive, considering Smith's intellectual deficits and the application of the totality principle. This principle requires that the overall sentence be proportionate to the seriousness of the offence and the circumstances of the offender. Smith argued that his intellectual deficits warranted a lesser sentence, while Kirkham contended that the sentence was appropriate given the gravity of the crime.

The High Court examined the totality principle in sentencing and the impact of intellectual deficits on the appropriate punishment. The court concluded that while Smith's intellectual deficits were a relevant mitigating factor, they did not render the sentence manifestly excessive. The court found that the trial judge had adequately considered these factors and that the sentence reflected a balanced approach, taking into account both the severity of the crime and Smith's individual circumstances.

The High Court dismissed the appeal, affirming the sentence imposed by the trial court. The court held that the sentence was not manifestly excessive or inadequate, and that the trial judge had correctly applied the totality principle. The decision underscored the importance of considering the totality of circumstances in sentencing, including the offender's intellectual deficits, while ensuring that the punishment remains proportionate to the crime committed.

Orders