R v Barrett - [2009] QDC 22

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Barrett [2009] QDC 22

PARTIES:

THE QUEEN

v

LEO DAVID BARRETT

FILE NO/S:

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

12/02/09

DELIVERED AT:

Toowoomba District Court

HEARING DATE:

06/02/2009

JUDGE:

M W Forde DCJ

ORDERS:

(1)        Conviction recorded

(2)        18 months imprisonment suspended after three months with an operational period of two years.

(3)        It is declared that the period from 6 February to 13 February 2009 viz 7 days be deemed to be part of the term of imprisonment.

(4)        The defendant is disqualified from holding or obtaining a drivers licence for a period of two years.

CATCHWORDS:

SENTENCE - CONTESTED - DANGEROUS OPERATION OF A MOTOR VEHICLE - head on collision - falling asleep whether momentary inattention - young offender - lack of sleep - principles applicable.

Penalties and Sentences Act 1992 (Qld) ss 9(2) & (3)

R v Gallagher [2004] QCA 240 - referred to

R v Gruenert ex parte A-G (Qld) [2005] QCA 154 - distinguished

R v Hart [2008] QCA 199 - applied

R v Hoad [2005] QCA 92 - referred to

R v Proesser [2007] QCA 61 - distinguished

COUNSEL:

S. Farnden for prosecution

R. Davies for defence

SOLICITORS:

Director of prosecutions

Burns Lawyers

Introduction

Leo David Barrett, you have pleaded guilty to dangerous operation of a motor vehicle causing the death of Aquina Marks. A collision occurred between your vehicle and her vehicle on the Warrego Highway, near Charlton, outside Toowoomba on Sunday 20 May 2007. Your vehicle veered onto the incorrect side of the road whilst travelling in a westerly direction. There was a clear view in each direction of several hundred metres. The deceased’s vehicle was travelling east towards Toowoomba. It would have been visible as it is likely that its lights would have been on. It is clear from the debris that your vehicle was substantially on the incorrect side of the road.[1] The gouge and oil marks as reported by Constable West support that finding.[2] The speed limit on that part of the highway was 100 kph. You cannot remember the accident although there is no medical evidence which would explain that any injury suffered would have caused you not to remember the accident. It is necessary to look at your movements prior to this event to try to piece together what occurred.

[1] Exhibits 5 and 6

[2] Exhibit 17

This is a contested sentence. The latter is related to evidence given by two persons, Mr Brian Edward Minchell and Timothy Lloyd Minchell. They drove past Zimm’s Corner which is the turnoff to Kingsthorpe at 5.33 am. That corner is about 6.9 kilometres from the accident site or four minutes if one keeps to the speed limits which is what the Minchell’s car was doing.[3] It was dark and the headlights of their vehicle were on[4]. Traffic was light both ways and the road surface was dry. They were heading in an easterly direction. There were two…

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 Barrett

Details

AGLC: R v Barrett [2009] QDC 22
Case: [2009] QDC 22
Decision Date: 12 February 2009

CaseChat Overview and Summary

The case of R v Barrett dealt with a contested sentence in the context of a dangerous operation of a motor vehicle that resulted in a head-on collision. The defendant fell asleep at the wheel, leading to the incident. The legal issue at hand was whether the defendant's momentary inattention, attributed to a lack of sleep, could be considered a significant factor in determining the severity of the sentence. The court was required to balance the principles of punishment and deterrence against the defendant's youth and the circumstances leading to the offence.

The court examined the relevant provisions of the Penalties and Sentences Act 1992 (Qld), specifically sections 9(2) and (3), which guide the court in sentencing for dangerous driving. The court also referred to and distinguished several precedents to inform its decision, including R v Gallagher, R v Gruenert ex parte A-G, R v Hart, R v Hoad, and R v Proesser. These cases provided insights into how similar offences had been treated and the rationale behind the sentences imposed.

In delivering the judgment, the court acknowledged the seriousness of the offence but also took into account the defendant's youth and the mitigating circumstances of sleep deprivation. The court ultimately decided on a suspended sentence of 18 months imprisonment, to be served after a three-month suspension, with an operational period of two years. The defendant was also disqualified from holding or obtaining a driver's licence for two years. The court deemed seven days of the sentence to be part of the term of imprisonment, reflecting the immediate need for a punitive measure while considering the defendant's age and the mitigating factors.

The court's final orders included recording the conviction, imposing the specified sentence and disqualification period, and deeming part of the sentence to be served immediately. This balanced approach aimed to ensure both punishment and rehabilitation, considering the unique circumstances of the case.

Orders

Orders of the court

(1) Conviction recorded

(2) 18 months imprisonment suspended after three months with an operational period of two years.

(3) It is declared that the period from 6 February to 13 February 2009 viz 7 days be deemed to be part of the term of imprisonment.

(4) The defendant is disqualified from holding or obtaining a drivers licence for a period of two 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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CITATION:	R v Barrett [2009] QDC 22
PARTIES:	THE QUEEN v LEO DAVID BARRETT
FILE NO/S:
DIVISION:	Criminal
PROCEEDING:	Trial
ORIGINATING COURT:	Brisbane District Court
DELIVERED ON:	12/02/09
DELIVERED AT:	Toowoomba District Court
HEARING DATE:	06/02/2009
JUDGE:	M W Forde DCJ
ORDERS:	(1) Conviction recorded (2) 18 months imprisonment suspended after three months with an operational period of two years. (3) It is declared that the period from 6 February to 13 February 2009 viz 7 days be deemed to be part of the term of imprisonment. (4) The defendant is disqualified from holding or obtaining a drivers licence for a period of two years.
CATCHWORDS:	SENTENCE - CONTESTED - DANGEROUS OPERATION OF A MOTOR VEHICLE - head on collision - falling asleep whether momentary inattention - young offender - lack of sleep - principles applicable. Penalties and Sentences Act 1992 (Qld) ss 9(2) & (3) R v Gallagher [2004] QCA 240 - referred to R v Gruenert ex parte A-G (Qld) [2005] QCA 154 - distinguished R v Hart [2008] QCA 199 - applied R v Hoad [2005] QCA 92 - referred to R v Proesser [2007] QCA 61 - distinguished
COUNSEL:	S. Farnden for prosecution R. Davies for defence
SOLICITORS:	Director of prosecutions Burns Lawyers