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R v Smith

 

[2019] QCA 33

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smith [2019] QCA 33

PARTIES:

R
v
SMITH, Ry Liam
(appellant)

FILE NO/S:

CA No 20 of 2018

SC No 149 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Townsville – Date of Sentence: 19 January 2018 (North J)

DELIVERED ON:

1 March 2019

DELIVERED AT:

Brisbane

HEARING DATE:

7 November 2018

JUDGES:

Gotterson and McMurdo JJA and Boddice J

ORDERS:

  1. Grant leave to appeal.
  2. Allow the appeal.
  3. Vary the sentence imposed on 19 January 2018 for count one of the indictment by setting aside the declaration that this was a serious violent offence and by ordering that the parole eligibility date be 4 March 2020.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – SERIOUS OR VIOLENT OFFENDER – where the applicant was convicted of the manslaughter of an infant – where the applicant was sentenced to a term of nine years’ imprisonment with a declaration that it was a serious violent offence – where the sentencing judge imposed the term of imprisonment before considering the question of a serious violent offence declaration – whether the sentencing judge erred by fixing the term of imprisonment without regard to the serious violence offence declaration later made

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCESENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – MANSLAUGHTER – SENTENCE – PARTICULAR CASES – where the applicant was convicted of the manslaughter of an infant – where the applicant was sentenced to a term of nine years’ imprisonment with a declaration that it was a serious violent offence – where the infant died as a result of either the application of significant shaking or blunt force trauma – where the applicant pleaded guilty – where the applicant showed no remorse and denied that he caused the infant’s death prior to his plea of guilty – where the applicant had a history of cruelty and violence towards the infant – where the applicant refused to allow the infant’s mother to take the infant to a doctor after the fatal injuries were inflicted – where the applicant had no relevant criminal record – where the applicant was a heavy user of dangerous drugs and alcohol – where the applicant did not complete high school and was unemployed – where the sentencing judge erred by deciding the term of imprisonment independent of the serious violent offence declaration – whether the sentence was manifestly excessive

R v Chard; Ex parte Attorney-General (Qld) [2004] QCA 372, considered

R v JV [2014] QCA 351, considered

R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, applied

R v Riseley; Ex parte Attorney General (Qld) [2009] QCA 285, considered

COUNSEL:

J R Jones, with N D Boyd, for the applicant (pro bono)

N Crane for the respondent

SOLICITORS:

Fisher Dore Lawyers for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    GOTTERSON JA:  I agree with the orders proposed by McMurdo JA and with the reasons given by his Honour.
  2. [2]
    McMURDO JA:  The applicant pleaded guilty to an offence of the unlawful killing of his baby son, who was aged 17 weeks. The applicant was sentenced to a term of nine years’ imprisonment, with a declaration that this was a serious violent offence. The offence was committed in 2013, when the applicant was aged 21. He was 25 when sentenced. He also pleaded guilty to an offence of failing to provide the necessaries of life to the baby, in the last few days of his life, for which he was sentenced to a concurrent term of 18 months.
  3. [3]
    He applies for leave to appeal against his sentence for the manslaughter offence, upon the ground that the judge erred in deciding to impose the term of nine years before separately considering whether to declare that this was a serious violent offence. This Court is asked to set aside the sentence for that error and to re-sentence the applicant to that same term of nine years, but without the declaration and in its place a parole eligibility date at the five year mark. For the reasons that follow I am persuaded that those orders should be made.

The facts

  1. [4]
    The applicant lived with the baby and the baby’s mother. The applicant was a frequent user of dangerous drugs, including morphine and cannabis. His mood was constantly irritable and aggressive, and was worsening in the lead up to the baby’s death. During that time the applicant was physically abusive towards the baby; slapping him to the cheek, head-butting him, pinching the baby’s nose which caused visible bruising, punching him to the stomach, and rubbing his beard on the baby’s face. On one occasion, he picked the baby up from his cot and dropped him about 20 centimetres onto the mattress. At the time, the applicant said to the mother that he was trying to “toughen him up” and that he liked to hear the baby cry.
  2. [5]
    The injuries which caused death were inflicted on 30 August 2013. Earlier that day, the applicant and the baby’s mother had argued and the applicant had left and become intoxicated by cannabis, alcohol and morphine. Later that day he returned home and about an hour later, he told the mother that he was taking the baby for a walk. He placed the baby in the stroller and told the mother to leave the baby alone as he and the baby left.
  3. [6]
    About an hour later, the mother became concerned and went looking for them. She found them on a nearby street and saw that the baby appeared to be asleep and slumped over, with fresh bruises to his forehead. The applicant told her that he had run the stroller into the gutter and that the baby had hit his head on the side of the stroller. The mother took the baby home and put him to bed.
  4. [7]
    On the following day it was apparent that the baby’s health was deteriorating. He had reduced levels of consciousness, he was crying with greater frequency and intensity, and he was vomiting and shaking. The applicant continued to tell the mother that the baby had struck his head on the stroller. The mother wanted to take the baby to a doctor, but the applicant resisted and suggested that the baby was “teething”.
  5. [8]
    The baby continued to deteriorate further over the course of the following day, but no medical attention was sought. At about 9 pm on that night, the applicant and the mother observed that the baby had stopped breathing. The applicant attempted to resuscitate the baby as the mother called for an ambulance. The baby was taken to hospital but died about an hour and a half later.
  6. [9]
    The cause of death was identified as head and spinal injuries, through either the application of significant shaking or blunt force trauma. Those alternative possibilities were set out in a schedule of facts tendered by the prosecutor at the sentencing hearing.

The applicant’s personal circumstances

  1. [10]
    The applicant had a criminal history which the sentencing judge correctly described as having limited relevance. In 2010 he had been convicted of common assault and wilful damage to property, for which he was sentenced to probation and community service with no conviction recorded. He subsequently breached those orders, resulting in his being re-sentenced to a wholly suspended term of imprisonment. In June 2015, he was convicted of contravening a domestic violence order for which he was fined $150.
  2. [11]
    The applicant did not complete high school. He obtained employment for a while after leaving school, but for a long period he was unemployed and he remained so at the time of this offending. He was a heavy user of dangerous drugs, including ice, morphine and heroin. He was using morphine or heroin daily by the time of these offences.

The reasons of the sentencing judge

  1. [12]
    The judge found that the injuries to the brain and the spinal injuries were most likely the result of severe and prolonged shaking, although it was not disputed that the evidence showed that there had also been blows to the baby’s head.
  2. [13]
    His Honour remarked that the applicant showed no remorse. Although the applicant had been heard to be remorseful at the hospital when the baby died, the applicant had later lied to police about the bruising on the boy’s head and, more generally, he had denied that there was any action on his part which might have caused the baby’s death.
  3. [14]
    The judge found that this was not a case where the applicant “acted out of frustration induced by tiredness, as is sometimes the case in deaths to infants when parents temporarily lose control and commit acts of violence on infants.”  Nor was it a case, his Honour said, where the applicant’s “actions might be explained by some deficit of intellect or mental infirmity, which is sometimes the case.”  Rather, the applicant had “demonstrated, over a period of time leading up to the events of the evening, a propensity towards cruelty and violence towards [his] son”. Referring to the second offence, his Honour observed that the applicant had deprived the baby of the necessaries of life by refusing to allow his mother to take the baby to a doctor.
  4. [15]
    The judge noted that he had been referred to a number of comparable sentences, which he said indicated “that while particular circumstances may indicate that a sentence lower or higher is called for, the discretionary range will often fall within eight to 10 years.”  He noted the prosecutor’s submission that there should be a sentence of at least eight years, that one of more than 10 years was open, and that a SVO declaration should be made. The submission by the applicant’s counsel, that the range was one of eight to nine years but with no declaration, was noted.
  5. [16]
    The judge continued:

“I have pointed to some of the circumstances that inform, in my view, the proper exercise of my discretion. They include the pattern of violence in the past before the events when you took your son for that fateful stroll or walk on the evening; that you were not acting in circumstances where you were exhausted or frustrated causing a momentary loss of control. Rather, you were irritable and angry and prepared to carry on your conduct of the past, perhaps fuelled by alcohol and drugs, causing harm and pain to your son.

There is evidence from your conduct of some animosity towards him. Some considerable force would have been required to shake your son to cause the head and spinal injuries that the schedule of facts speak of and you denied him medical treatment by your conduct a day or so later.

It is necessary in the circumstances such as this, involving a crime such as this, to denounce the conduct and to punish an offender for such serious conduct. Aspects of the protection of the public are also to be considered as are aspects of general deterrence. I have not overlooked that you were a relatively young man at the time. Since these events you attended at least one course and obtained a certificate in a parenting program.

You have been in custody for a long time now. In all the circumstances, I am of the view that for count 1 a sentence of 9 years imprisonment should be imposed …”

  1. [17]
    At that point in his reasons, his Honour declared that the applicant had spent a total of 1,052 days in pre-sentence custody. He also then referred to the applicant’s plea of guilty. His Honour added that he had not overlooked the applicant’s lies about the baby’s injuries. The judge said that the factors of the plea of guilty and those lies were “active in my mind when I determined upon the sentences that I have announced.”
  2. [18]
    It was only after then that the judge discussed the question of whether a SVO declaration should be made, and the judge said this:

“I now turn to the issue of whether there should be a declaration that the conviction in respect of count 1 is a serious violent offence. I was referred to not only the authorities I have mentioned, a number of which canvass that issue, for example, Grizzly at some length, but I was also taken to the decision of the Court of Appeal in The Queen v McDougall and Collas [2006], which is a leading authority on this point.

There are a number of factors that reveal very serious conduct on your part towards your son. There is the prior gratuitous violence that was cruel, uncalled for, persistent or at least repetitive and totally unnecessary. There is the circumstance that on the occasion when your son suffered the injuries that lead to his death, there was a repetition of violence towards him that was significant. There was the shaking and also several blows to his head causing the bruising evident to his head. You denied him medical treatment when his mother suggested it a day later. You were angry and irritable under the affects of the drugs that you took. You were not acting out of frustration, or tiredness, or exhaustion with any loss of control. You were not suffering from a deficit of intellect or infirmity that may explain your conduct. It was cruel and it was violent and it was, as I have said, repetitive.

In the circumstances, I declare the offence for which you were convicted in count 1 as a serious violent offence.”

The ground of appeal

  1. [19]
    In R v McDougall and Collas,[1] this Court (Jerrard, Keane and Holmes JJA), referring to the judgment of the High Court in Markarian v The Queen,[2] said that:[3]

“[T]he sentencing process is an integrated process directed to the determination of a just sentence. The exercise of the discretion conferred by s. 161B(3) of the Penalties and Sentences Act thus falls to be exercised as part of, and not separately from, the conclusion of the process of arriving at a just sentence.”

  1. [20]
    The Court continued by making, amongst others, the following observations:[4]

“[A] critical matter is whether the offence has features warranting a sentence requiring the offender to serve 80 per cent of the head sentence before being able to apply for parole …

[T]he discreet discretion granted by s. 161B(3)(4) requires the existence of factors which warrant its exercise, but the overall amount of imprisonment to be imposed should be arrived at having regard to the making of any declaration, or not doing so;

[T]he considerations which may be taken into account in the exercise of the discretion are the same as those which may be taken into account in relation to other aspects of sentencing …

[F]or the reasons to show that the declaration is fully warranted in the circumstances it will usually be necessary that declarations be reserved for the more serious offences that, by their nature, warrant them …

[W]here a discretionary declaration is made, the critical question will be whether the sentence with that declaration is manifestly excessive in the circumstances; accordingly the just sentence which is the result of a balancing exercise may well require that the sentence imposed for that declared serious violent offence be toward the lower end of the otherwise available range of sentences …”

(Footnotes omitted.)

  1. [21]
    The submission for the applicant is that the sentencing judge did not exercise the discretion as part of the process of arriving at a just sentence; rather, it can be seen from the reasons that the judge determined to impose a sentence of nine years before considering the question of a SVO declaration.
  2. [22]
    For the respondent, it is submitted that the judge did have regard to the observations in McDougall and Collas, as can be seen from his Honour’s reference to it. It is submitted that his Honour did not sentence at the top of the applicable range so that it cannot be said that he made no allowance for the requirement that the applicant serve 80 per cent of the sentence.
  3. [23]
    It must be accepted, as the respondent submits, that regard must be had to the whole of the sentencing reasons without undue scrutiny of individual passages in isolation.[5]  However the reasons as a whole demonstrate, in my view, that the judge did fix the sentence for nine years without regard to the SVO declaration which he went on to make. The facts and circumstances of the offence were relevant both to the term of imprisonment and the question of the SVO declaration. The error by the judge was to decide those two matters independently of each other. Notably, after his Honour said that he would impose the sentence of nine years, he went on to add that there were two things, not already mentioned by him, which he had also considered in fixing that term: the plea of guilty and the applicant’s denial to police of his responsibility for the death. At the same time, his Honour did not add the fact that he would make a SVO declaration. It follows that the judge erred in the exercise of the sentencing discretion and, unless the view is taken that no different sentence should be ordered, it is for this Court to re-sentence him.

Re-sentencing the applicant

  1. [24]
    I will discuss some of the comparable cases to which the Court was referred. With one exception, I will only refer to decisions of this Court.
  2. [25]
    For the respondent, it was submitted that particular guidance comes from the statement in R v Chard; Ex parte Attorney-General (Qld),[6] that:

“The prolonged abuse of a baby … would call for a head sentence at least in the range of eight years to 10 years; the offence is far more serious than the isolated instance of shaking in Hall.”[7]

  1. [26]
    It is submitted that this statement supported that of the judge in the present case that “the discretionary range will often fall within eight to 10 years.”  However that sentence in Chard must be considered with what Williams JA said immediately after it, which was as follows:

“The main discounting factor in this case is the timely plea to manslaughter after the prosecution agreed not to pursue the charge of murder with which the respondent was initially indicted. When all the relevant factors are taken into consideration the appropriate sentence in this case for the manslaughter of the infant was seven years.”

  1. [27]
    Chard was in many ways a case very similar to the present one. Chief Justice de Jersey described it as “not a case of isolated cruelty borne of anger or frustration”[8] and Williams JA said that it was clear that the infant in that case had been “subjected to substantial physical abuse prior to death.”[9]  An aggravating circumstance in that case, not present in this one, was that the offender had “contrived occasions to be alone with the child” during which he inflicted injury.[10]  The outcome in Chard was that this Court re-sentenced the respondent to a term of seven years, to be served cumulatively upon 12 months of a suspended sentence, which had been reactivated by this offence.
  2. [28]
    In R v Riseley; Ex parte Attorney-General (Qld),[11] this Court allowed an appeal against a sentence of eight years with a SVO declaration, by setting aside the declaration and fixing a parole eligibility date at about the three and half year mark. The offender was the partner of the baby’s mother. He was sentenced on the basis that there had been severe shaking and blows to the head, one or two of which were severe.[12]  As in this case, there was a delay in seeking medical attention and the offender gave differing accounts about how the injuries had occurred, although he ultimately pleaded guilty.[13]  Like the present applicant, that offender was aged 21 at the time of the offence, with an irrelevant criminal history. He had had a disadvantaged background, which included sexual abuse, and he was of below average intelligence. In dismissing the appeal by the Attorney-General, Keane JA said:[14]

“Reference to this Court’s decisions in Chard and Hall suggests that a sentence of eight years imprisonment, even without a serious violent offence declaration is a distinctly heavy sentence for this category of offence once mitigating factors such as the plea of guilty and the respondent’s rehabilitation are taken into account.”

  1. [29]
    In R v JV,[15] the Court refused leave to appeal against a sentence of eight years with a parole eligibility date set at about the half way mark for two counts of manslaughter, involving the deaths of the applicant’s twin children who were then aged about 18 months. The children died of malnutrition and had been deceased for about a week when their bodies were found by an older sister. After discussing, amongst other cases, Hall and Chard, Gotterson JA said:[16]

“These sentences do reveal a pattern in which the extent of departure from reasonable community standards is reflected in the severity of the sentence. They also indicate that a notional sentence of eight to nine years’ imprisonment has tended to prevail in instances of protracted, cruel harm to an infant child which has resulted in fatality.”

  1. [30]
    Notably, in none of these cases was there a sentence in the order of nine years with a SVO declaration. Indeed the Court was not referred to any case in which a heavier sentence than the present one was imposed, but it was referred to a decision of a single judge in R v Williamson,[17] in which the same sentence was imposed. That offender pleaded guilty to the manslaughter of his three year old daughter who was in his care. She suffered terrible injuries. The evidence also revealed that she had been subjected to sexual abuse. The sentencing judge proceeded upon the basis that the offender at least knew that the child was being sexually abused by someone and did nothing to seek treatment for the injuries which he knew were being inflicted. This followed a two day sentencing hearing in which the offender accepted that he failed to obtain medical treatment but denied that he caused the injuries that resulted in her death. Assessed against the other cases which I have discussed, it is a relatively heavy sentence, but one which was no doubt affected by the circumstance of the sexual offending against the child.
  2. [31]
    I am unpersuaded to agree with the sentence imposed by the judge. The facts and circumstances of this offence are very distressing and the case calls for a heavy sentence. But in my view, it is not demonstrated that, for an offender who has pleaded guilty and who has no significant criminal history, a term of nine years and a SVO declaration is warranted. The term of nine years gives recognition to the seriousness of this crime and its consequences, but to require the applicant to serve at least 80 per cent of that term before being eligible for parole would be excessive.
  3. [32]
    Although I would not make a SVO declaration, I consider it is appropriate to set a parole eligibility date somewhat later than the half way mark which would otherwise apply. I am persuaded that the outcome should be that which is proposed by counsel for the applicant, namely that the applicant be eligible for parole after serving five years of his nine year sentence.

Orders

  1. [33]
    I would order as follows:
    1. Grant leave to appeal.
    2. Allow the appeal.
    3. Vary the sentence imposed on 19 January 2018 for count one of the indictment by setting aside the declaration that this was a serious violent offence and by ordering that the parole eligibility date be 4 March 2020.[18]
  2. [34]
    BODDICE J:  I agree with McMurdo JA.

Footnotes

[1]  [2006] QCA 365; [2007] 2 Qd R 87.

[2]  [2005] HCA 25; (2005) 228 CLR 357.

[3]  [2006] QCA 365; [2007] 2 Qd R 87 at 95 [17].

[4]  [2006] QCA 365; [2007] 2 Qd R 87 at 96 [19].

[5]  See R v Conway [2012] QCA 142; (2012) 223 A Crim R 244 at 253 [56] per Henry J.

[6]  [2004] QCA 372 at [23] per Williams JA.

[7]  Referring to R v Hall; Ex parte Attorney-General (Qld) [2002] QCA 125.

[8]  [2004] QCA 372 at [2].

[9]  [2004] QCA 372 at [14].

[10]  [2004] QCA 372 at [2].

[11]  [2009] QCA 285.

[12]  [2009] QCA 285 at [25].

[13]  [2009] QCA 285 at [14]-[17].

[14]  [2009] QCA 285 at [36].

[15]  [2014] QCA 351.

[16]  [2014] QCA 351 at [31].

[17]  Unreported, Atkinson J, SC Indictment No 600 of 2015, 6 April 2017.

[18]  Being the date which is five years from the commencement of the applicant’s pre-sentence custody.

Close

Editorial Notes

  • Published Case Name:

    R v Smith

  • Shortened Case Name:

    R v Smith

  • MNC:

    [2019] QCA 33

  • Court:

    QCA

  • Judge(s):

    Gotterson JA, McMurdo JA, Boddice JA

  • Date:

    01 Mar 2019

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment SC149/17 (No Citation) 19 Jan 2018 Date of Sentence (North J).
Appeal Determined (QCA) [2019] QCA 33 01 Mar 2019 Application for leave to appeal against sentence granted; appeal allowed; sentence varied by setting aside the declaration that this was a serious violent offence and by ordering that the parole eligibility date be 4 March 2020: Gotterson and McMurdo JJA and Boddice J.

Appeal Status

{solid} Appeal Determined (QCA)