R v Barker - [2013] QCA 340

SUPREME COURT OF QUEENSLAND

CITATION:

R v Barker [2013] QCA 340

PARTIES:

R
v
BARKER, Joel Wayne
(applicant)

FILE NO/S:

CA No 61 of 2013
DC No 239 of 2013
DC No 1526 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

12 November 2013

DELIVERED AT:

Brisbane

HEARING DATE:

1 November 2013

JUDGES:

Fraser and Gotterson JJA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Leave to appeal 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 on pleas of guilty of one count of dangerous operation of a vehicle causing grievous bodily harm before leaving the scene, one count of failing to stop a vehicle as directed by a police officer, and a breach of a suspended sentence order – where the applicant drove towards a police officer who required the applicant to stop for a random breath test – where the applicant continued to drive dangerously and erratically at speed despite the complainant asking him to stop, until he lost control of the vehicle – where the applicant fled the accident leaving the complainant injured in the vehicle – where the applicant had an extensive criminal and traffic history – where the applicant was on parole and subject to a suspended sentence at the time of the commission of these offences – where the primary judge ordered the head sentence be served cumulatively on the existing sentence – whether the sentence imposed was manifestly excessive in all the circumstances

R v Grabovica[2012] QCA 180, distinguished
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited
R v Nuttall; Ex parte Attorney-General (Qld) [2011] 2 Qd R 328; [2011] QCA 120, cited
R v Wilde; ex parte Attorney-General (Qld) (2002) 135 A Crim R 538; [2002] QCA 501, cited

COUNSEL:

P D Kelly for the applicant (pro bono)
S P Vasta for the respondent

SOLICITORS:

No appearance for the applicant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of Boddice J and the order proposed by his Honour.

GOTTERSON JA: I agree with the order proposed by Boddice J and with the reasons given by his Honour.

BODDICE J: On 21 February 2013, the applicant was convicted, on pleas of guilty, of one count of dangerous operation of a vehicle causing grievous bodily harm before leaving the scene, one count of failing to stop a vehicle as directed by a police officer, and a breach of a suspended sentence order. The applicant was sentenced to an effective period of four years imprisonment, to be served cumulatively upon a sentence currently being served by the applicant. A parole eligibility date for the cumulative sentence was set at 16 April 2015, being 18…

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 R v Barker

Details

AGLC: R v Barker [2013] QCA 340
Case: [2013] QCA 340
Decision Date: 12 November 2013

CaseChat Overview and Summary

In the matter of R v Barker, the respondent was convicted on pleas of guilty of one count of dangerous operation of a vehicle causing grievous bodily harm before leaving the scene, one count of failing to stop a vehicle as directed by a police officer, and a breach of a suspended sentence order. The respondent was required by a police officer to stop for a random breath test. However, he drove towards the officer, and despite the complainant asking him to stop, he continued to drive dangerously and erratically at speed until he lost control of the vehicle. The respondent then fled the accident, leaving the complainant injured in the vehicle. The respondent had an extensive criminal and traffic history and was on parole and subject to a suspended sentence at the time of the commission of these offences. The primary judge ordered that the head sentence be served cumulatively on the existing sentence.

The issue before the court was whether the sentence imposed by the primary judge was manifestly excessive in all the circumstances. The court was required to determine whether the sentence was so disproportionate to the offence that it shocked the conscience of the court. The court also considered whether the sentence was inadequate in all the circumstances, given the seriousness of the offences committed by the respondent.

The court found that the sentence imposed by the primary judge was not manifestly excessive or inadequate in all the circumstances. The court found that the primary judge had appropriately considered the relevant aggravating and mitigating factors in imposing the sentence. The court found that the primary judge had given appropriate weight to the respondent's extensive criminal and traffic history, his breach of parole, and the seriousness of the offences committed. The court found that the sentence imposed was appropriate and proportionate to the offences committed by the respondent. The court refused leave to appeal.

There were no final orders made by the court. The court only determined that leave to appeal should be refused.

Orders

Orders of the court

Leave to appeal is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Barker [2013] QCA 340
PARTIES:	R v BARKER, Joel Wayne (applicant)
FILE NO/S:	CA No 61 of 2013 DC No 239 of 2013 DC No 1526 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	12 November 2013
DELIVERED AT:	Brisbane
HEARING DATE:	1 November 2013
JUDGES:	Fraser and Gotterson JJA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Leave to appeal 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 on pleas of guilty of one count of dangerous operation of a vehicle causing grievous bodily harm before leaving the scene, one count of failing to stop a vehicle as directed by a police officer, and a breach of a suspended sentence order – where the applicant drove towards a police officer who required the applicant to stop for a random breath test – where the applicant continued to drive dangerously and erratically at speed despite the complainant asking him to stop, until he lost control of the vehicle – where the applicant fled the accident leaving the complainant injured in the vehicle – where the applicant had an extensive criminal and traffic history – where the applicant was on parole and subject to a suspended sentence at the time of the commission of these offences – where the primary judge ordered the head sentence be served cumulatively on the existing sentence – whether the sentence imposed was manifestly excessive in all the circumstances R v Grabovica[2012] QCA 180, distinguished R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited R v Nuttall; Ex parte Attorney-General (Qld) [2011] 2 Qd R 328; [2011] QCA 120, cited R v Wilde; ex parte Attorney-General (Qld) (2002) 135 A Crim R 538; [2002] QCA 501, cited
COUNSEL:	P D Kelly for the applicant (pro bono) S P Vasta for the respondent
SOLICITORS:	No appearance for the applicant Director of Public Prosecutions (Queensland) for the respondent