R v Boubaris

Case [2014] QCA 199

SUPREME COURT OF QUEENSLAND

CITATION:

R v Boubaris [2014] QCA 199

PARTIES:

R
v
BOUBARIS, Dimitrious
(applicant)

FILE NO/S:

CA No 162 of 2014
DC No 84 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

22 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

17 July 2014

JUDGES:

Margaret McMurdo P and Fraser and Morrison JJA
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 refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty to one count of dangerous operation of a motor vehicle causing death – where the applicant was sentenced to 18 months imprisonment, suspended after serving three months for an operational period of 30 months – where the the applicant was disqualified from holding or obtaining a driver’s licence for 18 months – where the applicant contends the learned sentencing judge erred in taking concentration of methylamphetamine into account and sentencing on the basis the applicant was driving with knowledge he had ingested methylamphetamine and was prepared to expose others to risk that substance might affect his driving – whether the learned sentencing judge took into account a circumstance of aggravation when none was alleged

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant contends the learned sentencing judge erred in finding inattention involved was more than momentary – where there was nothing exceptional with the applicant’s driving until he veered off the marked lane – where the course of travel before colliding with the metal rail was gradual and for such a distance that one would expect a driver to observe it and adjust their course – whether the judge erred in the characterisation of the seriousness of the driving

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant contends three months actual custody was manifestly excessive and the sentence should be wholly suspended – whether sentence was manifestly excessive

R v D [1996] 1 Qd R 363; [1995] QCA 329, cited
R v De Simoni (1981) 147 CLR 383; [1981] HCA 31, cited
R v Gruenert; ex-parte A-G (Qld)[2005] QCA 154, considered
R v Hopper; Ex parte Attorney-General (Qld)[2014] QCA 108, considered
R v MacDonald[2014] QCA 9, considered
R v Proesser[2007] QCA 61, cited

COUNSEL:

D Locantro (sol) for the applicant
B J Power for the respondent

SOLICITORS:

Locantro Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. MARGARET McMURDO P:  This application for leave to appeal against sentence should be refused for the reasons given by Morrison JA.

  1. FRASER JA:  I agree with the reasons for judgment…

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Details
AGLC
R v Boubaris [2014] QCA 199
Case
[2014] QCA 199
Decision Date

CaseChat Overview and Summary

In this case, the applicant, Boubaris, appealed against the sentence imposed after pleading guilty to dangerous operation of a motor vehicle causing death. The Court of Appeal was tasked with determining whether the sentencing judge had erred in his application of the law and whether the sentence was manifestly excessive. The applicant argued that the judge had incorrectly taken into account the concentration of methylamphetamine in his system and had erred in characterising the seriousness of the driving. Furthermore, the applicant contended that the sentence of three months actual custody was manifestly excessive and should be wholly suspended.

The court examined the grounds for interference with the sentence, including whether the judge had acted on the wrong principle by considering the concentration of methylamphetamine and whether the judge had identified a circumstance of aggravation when none was alleged. The court also assessed whether the judge had correctly characterised the seriousness of the driving, particularly whether the inattention involved was more than momentary. The court reviewed whether the sentence was manifestly excessive or inadequate and whether the applicant should have been sentenced to wholly suspended imprisonment.

Upon review, the Court of Appeal found that the sentencing judge had not acted on the wrong principle in taking into account the concentration of methylamphetamine, as it was relevant to the applicant’s dangerous driving. The court also determined that the judge had not erred in characterising the seriousness of the driving. Regarding the sentence, the court concluded that three months actual custody was not manifestly excessive and did not warrant a wholly suspended sentence. Therefore, the application for leave to appeal against the sentence was refused.

The court made no further orders beyond the refusal of the application for leave to appeal against the sentence.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

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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