R v Balic

Case [2005] QCA 212

SUPREME COURT OF QUEENSLAND

CITATION:

R v Balic [2005] QCA 212

PARTIES:

R
v
BALIC, Fikret Frank
(applicant/appellant)

FILE NO/S:

CA No 57 of 2005
DC No 2137 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

17 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

3 June 2005

JUDGES:

McMurdo P, McPherson JA and Williams JA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.  Application for leave to appeal against sentence
     granted
2.  Appeal allowed to the extent of setting aside the
     sentence of seven years imprisonment and substituting
     in lieu thereof imprisonment for a period of five and a
     half years

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant convicted after trial of dangerous operation of a motor vehicle causing grievous bodily harm whilst adversely affected by an intoxicating substance – applicant sentenced to seven years imprisonment – passenger suffered severe and permanent brain damage – whether the sentence is manifestly excessive

R v Frost; ex parte A-G (Qld) [2004] QCA 309; CA No 142 of 2004, 27 August 2004, cited
R v Hine [2002] QCA 212; CA No 31 of 2002, 21 June 2002, cited
R v Hoad [2005] QCA 92,;CA No 434 of 2004, 8 April 2005, cited
R v McCormick [2000] QCA 522; CA No 89 of 2000, 22 December 2000, considered
R v Merrill; ex parte A-G (Qld) [2002] QCA 263; CA No 86 of 2002, 25 July 2002, cited
R v Rahn [1998] QCA 338; CA No 180 of 1998, 6 August 1998, distinguished
R v Simpson [2003] QCA 100, CA No 344 of 2002, 14 March 2003, cited
R v Thumm; ex parte A-G (Qld) [1999] QCA 355; CA No 186 of 1999, 27 August 1999, cited
R v Wilde; ex parte A-G (Qld) [2002] QCA 501; CA No 283 of 2002, 19 November 2002, cited

COUNSEL:

S A Lynch for the applicant/appellant
D L Meredith for the respondent

SOLICITORS:

A W Bale & Son for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. :McMURDO P  The relevant facts, comparable cases and issues in this application for leave to appeal against sentence are fully set out in the reasons for judgment of Williams JA.

  1. The prosecutor at sentence contended that the appropriate sentencing range was a term of imprisonment of seven to eight years and that a sentence of eight years imprisonment should be imposed.  The applicant's lawyer at sentence agreed with that range, conceded that the injuries to the victim were serious and stated that the use of drugs pushed the appropriate sentence towards the higher end of that range.

  1. The comparable sentences to which this Court was referred during the hearing of…

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Details
AGLC
R v Balic [2005] QCA 212
Case
[2005] QCA 212
Decision Date

CaseChat Overview and Summary

The case of R v Balic involves the appellant, who was convicted following a trial for dangerous operation of a motor vehicle causing grievous bodily harm while under the influence of an intoxicating substance. The victim suffered severe and permanent brain damage as a consequence of the incident. The appellant was sentenced to seven years imprisonment. The High Court of Australia was tasked with determining whether this sentence was manifestly excessive. The court considered the severity of the harm caused, the culpability of the appellant, and the appropriateness of the sentence relative to the offence.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether the sentence was so disproportionate to the offence that it could be considered a miscarriage of justice. The court examined the principles of sentencing in relation to dangerous driving offences and the need to balance punishment and deterrence with the circumstances of the individual case. The appellant's legal team argued that the sentence was disproportionate, given the severity of the harm caused and the appellant's otherwise good character and lack of prior criminal history.

In its decision, the court found that the sentence of seven years imprisonment was indeed manifestly excessive. The court recognised the severe and permanent nature of the injuries sustained by the victim but also considered the appellant's background and the mitigating factors. The court substituted a sentence of five and a half years imprisonment, finding this to be more proportionate to the offence and the appellant's culpability. The court allowed the appeal and set aside the original sentence, substituting it with the reduced term of imprisonment.

The final orders of the court were to grant the application for leave to appeal against the sentence and to allow the appeal to the extent of setting aside the original sentence of seven years imprisonment and substituting it with a sentence of imprisonment for a period of five and a half years.

Orders

Orders of the court

1. Application for leave to appeal against sentence

granted

2. Appeal allowed to the extent of setting aside the

sentence of seven years imprisonment and substituting

in lieu thereof imprisonment for a period of five and a

half years

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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