R v Allen

[2012] QCA 259

SUPREME COURT OF QUEENSLAND

CITATION:

R v Allen [2012] QCA 259

PARTIES:

R
v
ALLEN, Matthew Liam
(applicant)

FILE NO/S:

CA No 84 of 2012
DC No 248 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

25 September 2012

DELIVERED AT:

Brisbane

HEARING DATE:

20 August 2012

JUDGES:

Margaret McMurdo P and Fryberg and North JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence is refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after a trial of dangerous operation of a vehicle causing death – where applicant was 24 years old at time of offence and had no criminal history – where applicant had three entries in his traffic history – where applicant was in one of two right turning lanes and turned across oncoming traffic colliding with a motorcycle driver – where he was sentenced to 18 months imprisonment with a parole release date after nine months – where he was disqualified from holding or obtaining a driver's license for two and a half years – whether sentence was manifestly excessive

R v Damrow [2009] QCA 245, considered
R v Gruenert; ex parte A-G (Qld) [2005] QCA 154, considered
R v Maher[2012] QCA 7, considered
R v Major; ex parte A-G (Qld) [2012] 1 Qd R 465; [2011] QCA 210, cited

COUNSEL:

S A Lynch for the applicant
A Moynihan SC for the respondent

SOLICITORS:

Bell Miller Solicitors for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. MARGARET McMURDO P:  The applicant, Matthew Allen, was convicted after a four day jury trial of dangerous operation of a vehicle causing the death of Matthew Caltabiano on the Sunshine Coast on 28 February 2009.  He was sentenced to 18 months imprisonment with a parole release date of 11 January 2013, that is, after nine months.  He was also disqualified from holding or obtaining a driver's licence for two and a half years.  He has applied for leave to appeal against his sentence contending that it is manifestly excessive given his good prior history and that the judge failed to give adequate weight to his cooperation with authorities and mitigating factors.

1. He was 24 at the time of the offence and 27 at sentence.  He had no prior criminal history.  He had three entries in his traffic history.  In 2004 he exceeded the speed limit by between 13 and 20 kph and was fined $150.  In 2005 he was charged with driving a motor vehicle whilst under the influence of liquor with a blood alcohol reading of .105 and fined $600 and disqualified from driving for three months.  In 2009, after the commission of the present offence, he was fined $133 for exceeding the speed limit by less…