R v Blackaby - [2010] QCA 84

SUPREME COURT OF QUEENSLAND

CITATION:

R v Blackaby [2010] QCA 84

PARTIES:

R
v
BLACKABY, Crystalea Patricia
(applicant)

FILE NO/S:

CA No 284 of 2009
DC No 75 of 2009
DC No 595 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

16 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

1 March 2010

JUDGES:

Muir JA, Daubney and Peter Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made.

ORDER:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to a charge of dangerously operating a motor vehicle – where the applicant caused the death of another person – where the applicant was driving while affected by alcohol – where the applicant was sentenced to a term of imprisonment of seven years – where a parole eligibility date was set at 18 months – where the applicant had a disturbed background – where the applicant was exposed to violence, alcohol abuse and traumatic events during childhood – where the applicant was sexually abused in childhood – where the applicant had a history of drug use from a young age - where the applicant was the victim of domestic violence from age 14 – where the applicant had had two children removed from her care – where the applicant had a history of heavy drinking – where the applicant had a history of traffic offences – whether the head sentence was manifestly excessive

R v CAN [2009] QCA 59, distinguished
R v Evans [2005] QCA 455, distinguished
R v Hallett [2009] QCA 96, distinguished
R v Hey;ex parteA-G (Qld) [2006] QCA 23, distinguished
R v Hoad [2005] QCA 92, distinguished
R v Ross [2009] QCA 7, distinguished
R v Sheedy; ex parte A-G (Qld) [2007] QCA 183, considered

COUNSEL:

C A Cuthbert for the applicant
B J Power for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: I agree with the reasons of Peter Lyons J and with the order he proposes.

DAUBNEY J: For the reasons given by Peter Lyons J, with which I respectfully agree, I would also dismiss the application.

PETER LYONS J: The applicant pleaded guilty in the District Court to a charge of dangerously operating a motor vehicle, and causing the death of another person, while affected by alcohol (the current offence). She was sentenced to a term of imprisonment of seven years, with an order that she be eligible for release on parole after serving 18 months of that term. The question raised by this application is whether the head sentence of seven years is manifestly excessive, having regard to mitigating factors, and in particular the applicant’s difficult background.

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 Blackaby

Details

AGLC: R v Blackaby [2010] QCA 84
Case: [2010] QCA 84
Decision Date: 16 April 2010

CaseChat Overview and Summary

The defendant in this case, Blackaby, pleaded guilty to a charge of dangerously operating a motor vehicle, resulting in the death of another person. The court was presented with the issue of whether the sentence imposed was manifestly excessive. The applicant had a troubled background, including exposure to violence, alcohol abuse, and traumatic events during childhood, as well as a history of drug use, heavy drinking, and traffic offences. The applicant had also been a victim of domestic violence and had two children removed from her care. She was sentenced to a term of imprisonment of seven years, with parole eligibility set at 18 months.

The court had to decide if the sentence was manifestly excessive or inadequate. The applicant argued that her background and circumstances warranted a lesser sentence. The court considered the circumstances of the case and the principles of sentencing, including the need for punishment, deterrence, and rehabilitation. The court found that the sentence was not manifestly excessive, taking into account the severity of the offence and the need to protect the community.

The court concluded that the sentence imposed was appropriate, considering the applicant's background and the circumstances of the offence. The court found that the sentence was not manifestly excessive and dismissed the application for leave to appeal against the sentence. The court recognised the applicant's troubled background and the impact it had on her life, but also emphasised the need to hold her accountable for her actions and the importance of protecting the community. The court found that the sentence imposed achieved the appropriate balance between punishment, deterrence, and rehabilitation.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

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 Blackaby [2010] QCA 84
PARTIES:	R v BLACKABY, Crystalea Patricia (applicant)
FILE NO/S:	CA No 284 of 2009 DC No 75 of 2009 DC No 595 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Mackay
DELIVERED ON:	16 April 2010
DELIVERED AT:	Brisbane
HEARING DATE:	1 March 2010
JUDGES:	Muir JA, Daubney and Peter Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made.
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to a charge of dangerously operating a motor vehicle – where the applicant caused the death of another person – where the applicant was driving while affected by alcohol – where the applicant was sentenced to a term of imprisonment of seven years – where a parole eligibility date was set at 18 months – where the applicant had a disturbed background – where the applicant was exposed to violence, alcohol abuse and traumatic events during childhood – where the applicant was sexually abused in childhood – where the applicant had a history of drug use from a young age - where the applicant was the victim of domestic violence from age 14 – where the applicant had had two children removed from her care – where the applicant had a history of heavy drinking – where the applicant had a history of traffic offences – whether the head sentence was manifestly excessive R v CAN [2009] QCA 59, distinguished R v Evans [2005] QCA 455, distinguished R v Hallett [2009] QCA 96, distinguished R v Hey;ex parteA-G (Qld) [2006] QCA 23, distinguished R v Hoad [2005] QCA 92, distinguished R v Ross [2009] QCA 7, distinguished R v Sheedy; ex parte A-G (Qld) [2007] QCA 183, considered
COUNSEL:	C A Cuthbert for the applicant B J Power for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent