R v Bidmade - [2003] QCA 422

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bidmade [2003] QCA 422

PARTIES:

R
v
BIDMADE, Rodney John

(applicant)

FILE NO/S:

CA No 230 of 2003

DC No 267 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

26 September 2003

DELIVERED AT:

Brisbane

HEARING DATE:

21 August 2003

JUDGES:

McMurdo P, Muir and Holmes JJ

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The application for leave to appeal against sentence is allowed

2. The sentences imposed on Counts 6 and 7 are varied by setting aside the serious violent offence declaration made in respect of each of them

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – where offence involved dangerous operation of a motor vehicle – where applicant injured police officers – where serious violent offender declaration made – whether serious violent offender declaration was appropriate – whether sentence manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 161B(4)

R v Bojovic [2002] 2 Qd R 183, considered

R v Eveleigh [2002] QCA 219; [2003] 1 Qd R 398, considered

COUNSEL:

R East for the applicant

M Byrne QC for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: I have had the advantage of reading the reasons for judgment of Holmes J in which the facts and issues are stated.

The offences of serious assault and dangerous operation of a motor vehicle had extremely concerning aspects. The applicant drove his vehicle dangerously in an attempt to escape from police officers carrying out their duty and as a result two police officers have received significant injuries; police officer Michael suffered grievous bodily harm. A salutatory penalty was warranted for reasons of general and particular deterrence.

The applicant had an extensive criminal history and was a mature man of 36 years. He had a significant drug problem. To his credit, he appeared to be making genuine efforts at rehabilitation and he pleaded guilty at the early stage of committal proceedings.

The learned primary Judge was entitled under s 161B(4) Penalties and Sentences Act 1992 (Qld) to declare the applicant to have been convicted of a serious violent offence in respect of these offences with the consequence that he is required to serve 80% of that sentence before eligibility for post-prison community based release. His Honour was required to exercise that discretion judicially and in accordance with the principles set out in R v Bojovic.[1] I agree with Holmes J that judges exercising their discretion to make a declaration under s 161B(3) or (4) should determine the imprisonment to be imposed under the sentence having regard to the effect of any discretionary declaration under s…

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 Bidmade

Details

AGLC: R v Bidmade [2003] QCA 422
Case: [2003] QCA 422
Decision Date: 26 September 2003

CaseChat Overview and Summary

The appellant was convicted of several offences including dangerous operation of a motor vehicle and injuring police officers. The court imposed a sentence that included a declaration under the Serious Violent Offenders Act 2009 (Vic). The appellant sought leave to appeal against the sentence on the basis that the declaration was inappropriate and that the sentence was manifestly excessive. The court had to determine if the declaration was appropriate and if the sentence was excessive. The court found that the declaration was not appropriate because the appellant's criminal history was not sufficiently serious to warrant such a declaration. The court also found that the sentence was not manifestly excessive but the declaration was inappropriate and needed to be set aside.

The court noted that the appellant had a criminal history that included a number of serious offences, but the court found that the declaration was not appropriate because the appellant's criminal history did not meet the threshold for a serious violent offender declaration. The court also found that the sentence was not manifestly excessive, but the declaration was inappropriate and needed to be set aside. The court allowed the appeal and set aside the declaration made in respect of Counts 6 and 7. The court did not vary the sentence otherwise. The court found that the appellant's criminal history did not warrant a serious violent offender declaration and that the sentence was not manifestly excessive. The court allowed the appeal and set aside the declaration made in respect of Counts 6 and 7.

Orders

Orders of the court

1. The application for leave to appeal against sentence is allowed

2. The sentences imposed on Counts 6 and 7 are varied by setting aside the serious violent offence declaration made in respect of each of them

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 Bidmade [2003] QCA 422
PARTIES:	R v BIDMADE, Rodney John (applicant)
FILE NO/S:	CA No 230 of 2003 DC No 267 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	26 September 2003
DELIVERED AT:	Brisbane
HEARING DATE:	21 August 2003
JUDGES:	McMurdo P, Muir and Holmes JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal against sentence is allowed 2. The sentences imposed on Counts 6 and 7 are varied by setting aside the serious violent offence declaration made in respect of each of them
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – where offence involved dangerous operation of a motor vehicle – where applicant injured police officers – where serious violent offender declaration made – whether serious violent offender declaration was appropriate – whether sentence manifestly excessive Penalties and Sentences Act 1992 (Qld), s 161B(4) R v Bojovic [2002] 2 Qd R 183, considered R v Eveleigh [2002] QCA 219; [2003] 1 Qd R 398, considered
COUNSEL:	R East for the applicant M Byrne QC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent