R v Smith[2000] QCA 169

COURT OF APPEAL

McPHERSON JA

DAVIES JA

MACKENZIE J

[R v Smith]

CA No 409 of 1999

THE QUEEN

v.

CRAIG PETER SMITH Applicant

BRISBANE

DATE 09/05/2000

JUDGMENT

McPHERSON  JA:  This is an application for leave to appeal against a sentence imposed after a trial in the circuit Court at Bundaberg.  The applicant was charged with the murder of the deceased woman, but was convicted by the jury of the offence of manslaughter.

The circuit Judge proceeded then to sentence him to a term of imprisonment for nine years, and added a declaration that the offence was one which amounted to a serious violent offence.  There was, it may be said for completeness, also a declaration that the applicant had already spent 304 days in custody.

The circumstances of the offence can be summarised as follows.  It took place on about 23 January 1999 at the home of the applicant and the victim at Bargara near Bundaberg.  He and the deceased had been in a relationship for about three years.  They had one child, and at the time of the offence the victim was six months pregnant with a second child.

On the night in question, they went to the local bowls club, where they both consumed liquor.  The applicant left midway through the evening, taking his young daughter with him. She, I might mention, is, or at about that time was, about a year or 11 months old.

The deceased remained at the club after the applicant and her daughter had left, and was dropped off at their home at some time between 11.30 p.m. and midnight.  After that, some of the neighbours nearby heard raised voices coming from the applicant's house.  That was at about one in the morning.  They were able to distinguish some of what was being said, and it is apparent that each of those involved was making strong statements to the other.

Nothing more was then heard until, as it now turns out, at about 4.00 a.m., when the applicant drove the deceased's limp body to the Bundaberg Base Hospital.  Medical staff made efforts to try to resuscitate her from the state of unconsciousness she was in, but despite their efforts both she and her unborn child died.

At the time this was taking place at the hospital, the applicant was overheard saying that he had pushed the deceased, that she had fallen over and hit her head on the concrete and that he had brought her straight to the hospital.  It is quite plain that that account was not correct.

The pathologist who examined the deceased after her death found that she had sustained severe injuries to her skull and brain of the type which he described as being very commonly encountered in motor vehicle accidents.  There was a fracture to the base of the skull which extended from the inner left ear to the inner right ear.  The pathologist, Dr Williams, also found an extra dural haemorrhage, minor amounts of sub dural haemorrhage, and some degree of arachnoid haemorrhage.  He considered that the injuries were consistent with repeated ramming of the deceased's head against a hard surface, and also formed the opinion that the injuries could not have been caused by being pushed or falling down and striking her head in the manner described by the applicant.

The applicant gave evidence at the trial.  He said that the deceased had threatened his mother during the course of the argument, and also that she had insulted him.  He said that their child had woken up and that the deceased had run at him, so he punched her and knocked her to the ground.  He said she continued to shout at him, and he then pushed her head into the floor three or four times.  She then went quiet and, as he said, started to snore, and he left her there and went to bed.  His claim or assertion was that he thought she was simply asleep.

He woke later to find blood coming from her head and ears, and it was only then that he drove her to hospital.  She died, as I have already related, soon afterwards.

The applicant's personal circumstances are that, at the time of these events, he was 31 years old having been born on 26 October 1968.  He had previous convictions of some kind for drug offences, for stealing and for wilful damage.  He had worked as a labourer, a roof tiler and a shop fitter.  At the time the offence was committed, he was unemployed, but he had been out of work for only about four months.

The application before us for leave to appeal against sentence proceeds on the basis that no complaint is made about the head term of imprisonment for nine years.  The only point at issue is whether the learned sentencing Judge erred in declaring the applicant to have been convicted of a serious violent offence.

It was submitted by Mr Chowdhury on behalf of the applicant that there was nothing in the applicant's criminal history or the circumstances of the offence to warrant that declaration.  To an extent, it may be acknowledged that his criminal history and previous behaviour are not such as would ordinarily attract a declaration of that kind; but that by no means concludes the question in his favour.  The complaint is also made that there was barely any discussion at sentencing regarding the making of the declaration.  The learned sentencing Judge should, it is said, have expressly invited submissions from counsel for the accused before making a declaration of this kind.  In addition, the complaint is made that the learned Judge should have given reasons for making the declaration.

So far as the first point is concerned, there is no doubt that counsel for the applicant at the trial had adequate notice of the fact that a declaration was being sought or suggested to her Honour by the prosecution.  In the course of the submissions counsel for the Crown reminded the learned Judge that, if the sentence was 10 years or more, it was automatic that the accused would be convicted of a serious violent offence; and he went on to say that, even if the learned Judge imposed a sentence below that level, then, taking into account the very severe nature of the attack on the victim, the learned Judge might very well make the declaration in any event as a matter of discretion. 

There was therefore no doubt that the defence was forewarned of the possibility that such a declaration might be made and that it was being asked for by the prosecution.  It nevertheless does seem to me that, as a matter of practice, it would be wise for a Judge who is seriously thinking of making such a declaration to invite submissions from the defence in relation to it.  That was not done here; but that does not go so far as to vitiate or invalidate the sentencing discretion, or even justify this Court in re-examining the exercise of that discretion. 

Mr Rafter, on behalf of the Crown, referred us to a passage in the case of Pantorno v. R (1989) 166 CLR 466, 472, in which it is pointed out that it is not correct to suppose that the parties are entitled to be told by the Court what the law is.  That is plainly so, and with even more force in a case where, as here, the accused is legally represented by a qualified member of the Bar. 

The other complaint that is made, and which I have mentioned, is that the learned sentencing Judge did not give specific reasons for making the declaration.  What her Honour said in that regard is that - and this appears at the end of her reasons - is that she took into account all of the factors which had been submitted to her by both counsel, and she then went on to say that was so:

 "both in mitigation of penalty and also in terms of the seriousness offence."

Shs then said that she sentenced the applicant to a period of nine years' imprisonment, adding:

 "And I make a declaration that you should be considered a serious violent offender."

Now, it is certainly true that she might have been more specific about the precise reasons which led her to make that declaration;  but, as I read the passage to which I have referred, it is plain enough that what her Honour was saying was that the matters that she has already recited in her reasons are or include the grounds for making the declaration.  Plainly enough, in my opinion, there was a proper basis on which the declaration could be made.  In particular, a degree of serious violence was used to kill this unfortunate woman who was pregnant and in a condition when, according to the ordinary standards of civilised behaviour, a woman is entitled to be treated with some degree of sensitivity rather than extreme violence.

In the result I think there is nothing in either of those points that would justify reviewing the decision so as to interfere with the discretion which the Judge had and exercised to make the declaration in question. 

There is only one other matter that gives me some cause for concern, and it is this, that the learned Judge appears to have taken a rather adverse view of the applicant's criminal history, and in particular of one offence recorded in it.  I have given a brief account of the applicant's criminal history.  No criminal history of that kind can be passed over without some degree of concern.  It is, however, not as serious as many histories of the kind that we see in cases that end in this tragic fashion.  It must, however, be said in favour of the applicant that he seems to have committed no further offences of any kind since about 1994.

The particular offence on which her Honour placed some reliance was a conviction as far back as July 1991 for possessing an unlicensed firearm.  The circumstances of the offence are not disclosed in the brief record of it in the applicant's criminal history; and it is not possible to say with any degree of confidence whether it was a lethal kind of firearm, or whether it was a possession which might have been technical rather than serious in the catalogue of criminal offences.

Her Honour nevertheless thought, as she said in her reasons, that the conviction for possession of an unlicensed firearm was a very serious offence, given "the capacity for violence" which she said the applicant had now shown.  That aspect of her sentencing remarks is plainly referable to the violence that was demonstrated in the attack and killing of the victim in this case.  But it does seem to me to be difficult to link it in any realistic way with the prior firearms offence, so as to give that early offence an appearance of seriousness which it would not otherwise have had.

In the end, however, I do not regard that remark as capable of vitiating the sentencing discretion exercised in this case to make a declaration that the applicant was convicted of a serious violence offence.  Such a declaration was plainly open when regard is had to the severe nature of the killing in this case and the violence that was involved in it.  The offence was not merely one that was fairly within the terms of the scheduled offences in the Act as regards this element of sentencing, but it was also an offence which, in itself, was plainly both violent and serious, as can be gathered from the injuries inflicted and the consequences of their infliction on the victim.

In all the circumstances, I have come to the conclusion that although the application is confined to the single limited point of whether or not the declaration was appropriate, I cannot see any error in the exercise of the discretion leading to the making of the declaration that would induce me to think that it was wrongly made.  It follows, in my opinion, that the application for leave to appeal against sentence should be refused.

DAVIES JA:  I agree.

MACKENZIE J:  I agree.  I would only add that in my view the sufficiency of sentencing remarks concerning a declaration that the offender is a serious violent offender will vary according to the circumstances of individual cases.  The intellectual exercise of having to express reasons for making a declaration in a case where facts are such that there is a substantial question whether a serious violent offender declaration should be made or not will ensure that it is apparent why the declaration has been made and also protect the rights of the offender to challenge those reasons if he or she feels that they are insufficient. 

In some cases, especially where the description of the offender as a serious violent offender is not really in dispute, the threshold of sufficiency of the reasons will necessarily be lower.  I consider that this case falls more in the second category than the first and I agree with the reasons and the orders proposed by the presiding Judge.

McPHERSON JA:  The application for leave to appeal against sentence is dismissed.

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