R v Barnham - [2019] QCA 38

[2019] QCA 38

COURT OF APPEAL

FRASER JA
GOTTERSON JA
PHILIPPIDES JA

CA No 247 of 2018
DC No 163 of 2018

THE QUEEN

BARNHAM, Wayne Applicant

BRISBANE

THURSDAY, 7 MARCH 2019

JUDGMENT

GOTTERSON JA: The applicant, Wayne Barnham, pleaded guilty to dangerous operation of a motor vehicle causing the death of Tina Maree Johnson. The offending took place on 24 September 2017 on the Burnett Highway. At the time, the applicant was adversely affected by alcohol and he was speeding. In further aggravation of the offending, he left the scene of the accident before a police officer arrived.

The applicant was sentenced in the District Court at Rockhampton on 29 August 2018 for this offence and for two summary offences committed on 24 September 2017 to which the applicant also pleaded guilty. They were driving a motor vehicle under the influence of liquor on the Burnett Highway and failing to remain at the scene of the accident to render assistance to Ms Johnson.

For the dangerous driving and causing death offence, the applicant was sentenced to nine years imprisonment. The learned sentencing judge declined to make a serious violent offence declaration sought by the prosecution. However, no order for parole was made. A period of 70 days pre-sentence custody was declared to be time served under the sentence. It was further ordered that the applicant be disqualified from holding or obtaining a driver’s license absolutely. For the summary offences, the applicant was convicted but not further punished.

On 24 September 2018, solicitors acting for the applicant filed an application for leave to appeal his sentence. The ground on which the application is based is that his sentence is manifestly excessive.

The applicant is no longer legally represented. He appears on his own behalf at the hearing of this application.

The circumstances of the subject offending are, of course, relevant to this application. They were summarised in the Schedule of Agreed Facts tendered at the sentence hearing. The schedule discloses the following facts.

The applicant had spent the day travelling around in his vehicle with three others including the deceased, Tina Johnson. He had organised one of the three, Anthony Rayner, to drive. During the day, the applicant consumed a quantity of beer. It was estimated that ultimately there were 20 empty beer bottles at his feet.

After they stopped at a service station, the applicant demanded that he drive. Mr Rayner resisted, but the applicant became aggressive and insistent in his demand. He was obviously affected by alcohol. Mr Rayner relented.

The applicant drove along the Bruce Highway and then onto the Burnett Highway, in all for about seven kilometres. He was speeding and swerving all over the road. The two surviving passengers estimated that his speed was between 150 and 170 kilometres per hour and both told him to slow down.

The applicant lost control of the vehicle near an intersection. It moved to the left out of the lane. He steered to the right. The rear…

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 Barnham

Details

AGLC: R v Barnham [2019] QCA 38
Case: [2019] QCA 38
Decision Date: 7 MARCH 2019

CaseChat Overview and Summary

In this case, the applicant, Wayne Barnham, was convicted of dangerous operation of a motor vehicle causing the death of Tina Maree Johnson. The incident occurred on 24 September 2017 on the Burnett Highway, where Barnham was adversely affected by alcohol and was speeding at the time of the accident. Barnham left the scene before the arrival of the police. He was sentenced to nine years imprisonment, with 70 days pre-sentence custody declared as time served under the sentence. Barnham applied for leave to appeal his sentence, arguing that it was manifestly excessive.

The primary legal issue in this case was whether the sentence imposed on the applicant was manifestly excessive. To establish this, the applicant needed to show that the sentence was unreasonable or plainly unjust such that it gives rise to an inference that there must have been some misapplication of principle in sentencing him. The applicant needed to identify a difference between his sentence and sentences for comparable offending and submit that the difference gives rise to an inference of the kind to which I have referred.

The Court of Appeal found that the applicant's sentence of nine years imprisonment was consistent with sentences imposed in cases involving broadly comparable offending. The Court found that the applicant's sentence was not manifestly excessive as it was similar to other cases with offenders who had committed similar offences and had prior convictions for motor vehicle and dishonesty offences. The Court also noted that the applicant's sentence was not excessive in comparison to other cases where no parole eligibility date was fixed.

The Court of Appeal refused the application for leave to appeal against the sentence, finding that the applicant had failed to establish that his sentence was in any respect manifestly excessive. The order of the Court was that the application is refused.

Orders