SMOKER -v- THE QUEEN [2001] WASCA 388

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 388
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:15/2001	Heard:	20 NOVEMBER 2001
Coram:	WALLWORK J PARKER J OLSSON AUJ	Delivered:	7/12/01
No of pages:	11	Judgment Part:	1 of 1
Result:	Application for leave to appeal refused
Category:	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;…

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 Smoker v The Queen

Details

AGLC: Smoker v The Queen [2001] WASCA 388
Case: [2001] WASCA 388
Decision Date: 7 DECEMBER 2001

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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