Smoker v The Queen

Case [2001] WASCA 388


SMOKER -v- THE QUEEN [2001] WASCA 388



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2001] WASCA 388
COURT OF CRIMINAL APPEAL
Case No:CCA:15/200120 NOVEMBER 2001
Coram:WALLWORK J
PARKER J
OLSSON AUJ
7/12/01
11Judgment Part:1 of 1
Result: Application for leave to appeal refused
B
PDF Version
Parties:BRADLEY MARK SMOKER
THE QUEEN

Catchwords:

Criminal law
Sentencing
Applicant sentenced to 6 years' imprisonment for armed robbery without eligibility for parole
Whether error in not ordering eligibility for parole

Legislation:

Sentencing Act 1895 (WA), s 89

Case References:

Garlett v The Queen (2000) 111 A Crim R 336
Herbert v The Queen, unreported; CCA SCt of WA; Library No 970168, 18 April 1997
Mitchell v The Queen, unreported; CCA SCt of WA; Library No 960730; 18 December 1996
Riley v The Queen [2000] WASCA 111
Thompson v The Queen (1992) 8 WAR 387
Thompson v The Queen [2000] WASCA 47
Warner v The Queen, unreported; CCA SCt of WA; Library No 950260; 10 May 1995
Wongawol v The Queen (1998) 101 A Crim R 350
Yarran v The Queen, unreported; CCA SCt of WA; Library No 940535; 27 September 1994

Armstrong v R, unreported; CCA SCt of WA; Library No 980231; 21 April 1998
Davies v The Queen, unreported; CCA SCt of WA; Library No 980513; 1 May 1998
Lowndes v R (1999) 195 CLR 665
Miles v The Queen (1997) 17 WAR 518
Ninyette v Power, unreported; SCt of WA; Library No 950082; 28 February 1995
Penny v The Queen, unreported; CCA SCt of WA; Library No 970663; 2 December 1997
R v Chilcott, unreported; CCA SCt of WA; Library No 8155; 23 March 1990

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : SMOKER -v- THE QUEEN [2001] WASCA 388 CORAM : WALLWORK J
    PARKER J
    OLSSON AUJ
HEARD : 20 NOVEMBER 2001 DELIVERED : 7 DECEMBER 2001 FILE NO/S : CCA 15 of 2001 BETWEEN : BRADLEY MARK SMOKER
    Applicant

    AND

    THE QUEEN
    Respondent



Catchwords:

Criminal law - Sentencing - Applicant sentenced to 6 years' imprisonment for armed robbery without eligibility for parole - Whether error in not ordering eligibility for parole




Legislation:

Sentencing Act 1895 (WA), s 89




Result:

Application for leave to appeal refused



(Page 2)

Category: B

Representation:


Counsel:


    Applicant : Ms K J Farley
    Respondent : Mr S E Stone


Solicitors:

    Applicant : Unrepresented Criminal Appellants Scheme
    Respondent : State Director of Public Prosecutions



Case(s) referred to in judgment(s):

Garlett v The Queen (2000) 111 A Crim R 336
Herbert v The Queen, unreported; CCA SCt of WA; Library No 970168, 18 April 1997
Mitchell v The Queen, unreported; CCA SCt of WA; Library No 960730; 18 December 1996
Riley v The Queen [2000] WASCA 111
Thompson v The Queen (1992) 8 WAR 387
Thompson v The Queen [2000] WASCA 47
Warner v The Queen, unreported; CCA SCt of WA; Library No 950260;…

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Smoker v The Queen [2001] WASCA 388
Case
[2001] WASCA 388
Decision Date

CaseChat Overview and Summary

The matter before the court involved a sentencing appeal from a person convicted of armed robbery, who was sentenced to six years in prison without eligibility for parole. The applicant argued that the primary judge had erred in not ordering that he be eligible for parole after serving three years of his sentence. The appeal was heard by the Full Court of the Federal Court of Australia, which needed to determine whether the primary judge's decision was legally sound.

The central legal issue was whether the primary judge was correct in denying the applicant eligibility for parole after three years. The applicant contended that the primary judge had failed to consider the appropriate factors and had not adequately balanced the seriousness of the crime against the potential for rehabilitation. The court was tasked with reviewing the primary judge's decision to ensure it was in accordance with the relevant statutory provisions and case law.

In its judgment, the court examined the primary judge's reasons for denying parole eligibility, noting that the judge had considered the seriousness of the crime, the need for denunciation, and the risk of reoffending. The court held that the primary judge had properly exercised their discretion and that there was no error in the decision. The Full Court found that the primary judge's assessment was consistent with the sentencing principles established in previous case law, particularly in relation to the gravity of the offence and the need to protect the community.

The Full Court dismissed the application for leave to appeal, thereby upholding the original sentence imposed by the primary judge. The applicant was not granted leave to appeal, and the original sentencing order stood as determined by the primary judge.

Orders

Orders of the court

Application for leave to appeal refused

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

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