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R v Bowditch

R v Bowditch

Case [2014] QCA 157 15 July 2014

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Bowditch [2014] QCA 157

PARTIES:

R
v
BOWDITCH, Daniel Aaron
(applicant)

FILE NO/S:

CA No 11 of 2014
DC No 316 of 2013
DC No 396 of 2013
DC No 400 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

15 July 2014

DELIVERED AT:

Brisbane

HEARING DATE:

3 June 2014

JUDGES:

Margaret McMurdo P and Muir JA and Dalton J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Allow the application for leave to appeal and the appeal by:

(a) setting aside the sentences on counts 2, 4 and 7 on indictment CCJ 51 of 2013 and substituting a sentence of two years detention on each of those counts.

(b) setting aside the sentence on count 17 of CCJ 51 of 2013 and substituting a sentence of six months on that count.

(c) setting aside the sentence on count 1 of CCJ 52 of 2013 and substituting a sentence of 18 months detention on that count.

2. Otherwise dismiss the appeal.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was sentenced for offences which required him to be dealt with as a child and for offences that required him to be dealt with as an adult – where the most serious juvenile offence for which the applicant was sentenced was dangerous operation of a motor vehicle causing two deaths and grievous bodily harm – where other offences included unlawful use of a motor vehicle to facilitate the commission of an indictable offence, serious assault against Corrective Services officers and stealing from a locked receptacle – where the applicant was sentenced to four years detention for the dangerous driving offence, with all juvenile sentences to be served concurrently, and sentenced for the most serious adult offence to a fixed two years imprisonment as the highest sentence, with all adult sentences to be served concurrently, but cumulatively upon the juvenile sentences – where the applicant contended that individual sentences for some of the juvenile sentences were too high – where the appropriate penalty for dangerous driving will depend upon factors including the course of driving and the consequences of it – where the applicant was travelling at double the speed limit, driving a stolen car and it was illegal for him to be driving without supervision – where other individual sentences on the Childrens Court indictment were challenged for being manifestly excessive – whether individual sentences were manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant sought leave to appeal against the overall effect of the sentence imposed for numerous offences – where mitigating factors including that the applicant had entered an early plea and had, by and large, co-operated with police –…

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 Bowditch

Details

AGLC: R v Bowditch [2014] QCA 157
Case: [2014] QCA 157
Decision Date: 15 July 2014

CaseChat Overview and Summary

The applicant in this case appealed against the severity of his sentence following convictions for various serious offences, including dangerous operation of a motor vehicle causing two deaths and grievous bodily harm, unlawful use of a motor vehicle, assault against Corrective Services officers, and stealing from a locked receptacle. The Court of Appeal was tasked with determining whether certain individual sentences imposed by the trial judge were manifestly excessive and whether the overall sentence was excessive given the circumstances. The applicant argued that the individual sentences for some of the juvenile offences were too high, while the prosecution maintained that the sentences were appropriate given the gravity of the offences.

In examining the appeal, the court considered the principles of sentencing for both juvenile and adult offences, emphasising the importance of proportionality and the need to consider all relevant factors, including the nature of the offences, the applicant's age, his plea, and his background. The court noted that the applicant had driven at double the speed limit in a stolen car, which was illegal for him to be driving without supervision, and had persisted in criminal conduct despite being apprehended by police and having significant injuries from the incident. The court also highlighted the significant punishment that needed to be imposed, notwithstanding the applicant's plea, youth, and poor childhood circumstances.

The Court of Appeal concluded that while the sentences for some of the juvenile offences were excessive, the overall sentence was not manifestly excessive. The court allowed the appeal in part, setting aside and substituting certain sentences for specific counts to better reflect the seriousness of the offences and the need for deterrence and rehabilitation. The court dismissed the appeal in all other respects.

The orders of the court included allowing the application for leave to appeal and the appeal by setting aside and substituting sentences for specific counts, while dismissing the appeal in all other respects. The substituted sentences were intended to address the issues of proportionality and to ensure that the overall sentence was appropriate in the circumstances of the case.

Orders

Orders of the court

1. Allow the application for leave to appeal and the appeal by:

(a) setting aside the sentences on counts 2, 4 and 7 on indictment CCJ 51 of 2013 and substituting a sentence of two years detention on each of those counts.

(b) setting aside the sentence on count 17 of CCJ 51 of 2013 and substituting a sentence of six months on that count.

(c) setting aside the sentence on count 1 of CCJ 52 of 2013 and substituting a sentence of 18 months detention on that count.

2. Otherwise dismiss the appeal.

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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Citations

R v Bowditch [2014] QCA 157

Most Recent Citation

R v McRea [2015] QCA 110

Cases Citing This Decision

R v BEB [2023] QCA 105
Citation 1 (Para 4)

…s its effect tends to be more easily comprehended and it is less prone to unintentionally offend the totality principle.” (Footnotes omitted.) [4][2014] QCA 157 at [2]. [5][2014] QCA 157 at [2].…
R v Badaa [2022] QCA 12
Citation 2 (Para 37)

….[19]In Kruezi it was recognised as part of the common law that is commonly applied to sentencing for state offences in Queensland. [19] R v Bowditch [2014] QCA 157.…
R v Kruezi [2020] QCA 222
Citation 3 (Para 6)

…The application of the Nagy approach was considered in R v Bowditch [2014] QCA 157. In relation to the choice facing a sentencing judge who is sentencing for more than one offence, McMurdo P observed at [2]: “Generally, judges adopt one of two approaches. They may impose an increased head sentence, usually on the…
R v TAQ [2020] QCA 200
Citation 4 (Para 23)

…some sentences are ordered to be cumulative on others, so that the effective sentence reflects the overall criminality of the offending: R v Bowditch [2014] QCA 157 at [2]. The question of whether the sentencing discretion miscarried by ordering the sentences for some offences to be cumulative cannot be separated…
R v Tom [2018] QCA 218
Citation 5 (Para 14)

…ther sentences of imprisonment concurrently with the sentence in respect of the offending against Ms Hesketh. (b)Two options are open: R v Bowditch [2014] QCA 157. Either an increased head sentence for the most serious offence could be imposed to reflect the totality of all the offending, or cumulative or partly…
Willich v Queensland Police Service [2017] QDC 300
Citation 6

…) 55 CLR 499 Kentwell v R (2014) 252 CLR 60 Pearce v. The Queen (1998) 194 CLR 610 R v Boggs [2014] QCA 31 R v Bowditch [2014] QCA 157 R v Elhusseini [1988] 2 Qd R 442 R v Gordon; Ex parte A-G [1975] Qd R 301 R v Jackson [2011] QCA 103 R v James (Unreported 7/12/2012, QDC, Farr SC DCJ) R v Lidbetter [2009] QCA 6…
R v Armstrong [2016] QCA 243
Citation 7 (Para 9)

…effect tends to be more easily comprehended and it is less prone to unintentionally offend the totality principle.” (Footnotes omitted) [11][2014] QCA 157 at [2].…
SPJ v Queensland Police Service [2015] QDC 217
Citation 8 (Para 1)

…court as to which sentence, or sentences, have been inflated, and to what extent, to account for overall criminality.”[29] [28] R v Bowditch [2014] QCA 157, applying R v Nagy [2003] QCA 175 and Griffiths v R (1989) 167 CLR 372. [29] R v Bowditch [2014] QCA 157, para 23.…
R v McRea [2015] QCA 110
Citation 9 (Para 25)

…do not properly reveal the thinking behind the imposition of the sentences imposed.” [10]Appeal Transcript (“AT”), page 1-2, lines 44-46. [11][2014] QCA 157 at [23].…

See all citing cases →

Cases Cited

R v Grabovica [2012] QCA 180
Citation 1 (Para 1)

…t must be recognised that the maximum penalty for the offending in Grabovica was 14 years imprisonment, but here was only seven years detention. [7][2012] QCA 180.…
R v Johnson [2011] QCA 78
Citation 2 (Para 1)

…on bail at the time of the dangerous driving offence. The Court of Appeal imposed a sentence of four years imprisonment suspended after 12 months. [8][2011] QCA 78.…
R v Uittenbosch [2004] QSC 439
Citation 3 (Para 1)

…egard to the real effect of the sentences imposed by the primary judge. [12] Uittenbosch v Department of Corrective Services [2006] 1 Qd R 565, and [2004] QSC 439 per Holmes J.…
R v Nagy [2003] QCA 175
Citation 4 (Para 1)

…ty which gives legitimacy to the practice. The approach was endorsed as a legitimate one by the Court of Appeal in Nagy – see [39] of that case. [9][2003] QCA 175. [10]See for example the judgment of Dowsett J in Kellerman v Pecko [1998] 1 Qd R 419, 424, and the High Court in Pearce v The Queen (1998) 194 CLR 610…
Pearce v The Queen [1998] HCA 57
Citation 5 (Para 1)

…] of that case. [9][2003] QCA 175. [10]See for example the judgment of Dowsett J in Kellerman v Pecko [1998] 1 Qd R 419, 424, and the High Court in Pearce v The Queen (1998) 194 CLR 610, 623-4 per McHugh, Hayne and Callinan JJ, and also Gummow J at 629. [11](1989) 167 CLR 372.…
R v Riddell [1997] QCA 5
Citation 6 (Para 1)

…e turn on the road, the applicant’s speed, inexperience and probably failure to keep a good look out, caused dreadful consequences. [5] R v Riddell [1997] QCA 5.…
Griffiths v The Queen [1989] HCA 39
Citation 7

…tances Youth Justice Act 1992 (Qld), s 227(1), s 227(2) Griffiths v The Queen (1989) 167 CLR 372; [1989] HCA 39, followed R v Grabovica [2012] QCA 180, cited R v Johnson [2011] QCA 78, cited R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited R v Riddell [1997] QCA 5, cited COUNSEL: M E Johnson for the applicant V…
Mill v The Queen [1988] HCA 70
Citation 8 (Para 1)

…om this course. [1](1998) 194 CLR 610, McHugh, Hayne and Callinan JJ, 623-4, Gummow J 629. [2](1989) 167 CLR 372, 378. [3] Griffiths , above, 377. [4](1998) 166 CLR 59.…

Legislation Cited

Youth Justice Act 1992 (Qld) 227(1)
2 mentions (from Para 1)

CITATION:	R v Bowditch [2014] QCA 157
PARTIES:	R v BOWDITCH, Daniel Aaron (applicant)
FILE NO/S:	CA No 11 of 2014 DC No 316 of 2013 DC No 396 of 2013 DC No 400 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	15 July 2014
DELIVERED AT:	Brisbane
HEARING DATE:	3 June 2014
JUDGES:	Margaret McMurdo P and Muir JA and Dalton J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Allow the application for leave to appeal and the appeal by: (a) setting aside the sentences on counts 2, 4 and 7 on indictment CCJ 51 of 2013 and substituting a sentence of two years detention on each of those counts. (b) setting aside the sentence on count 17 of CCJ 51 of 2013 and substituting a sentence of six months on that count. (c) setting aside the sentence on count 1 of CCJ 52 of 2013 and substituting a sentence of 18 months detention on that count. 2. Otherwise dismiss the appeal.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was sentenced for offences which required him to be dealt with as a child and for offences that required him to be dealt with as an adult – where the most serious juvenile offence for which the applicant was sentenced was dangerous operation of a motor vehicle causing two deaths and grievous bodily harm – where other offences included unlawful use of a motor vehicle to facilitate the commission of an indictable offence, serious assault against Corrective Services officers and stealing from a locked receptacle – where the applicant was sentenced to four years detention for the dangerous driving offence, with all juvenile sentences to be served concurrently, and sentenced for the most serious adult offence to a fixed two years imprisonment as the highest sentence, with all adult sentences to be served concurrently, but cumulatively upon the juvenile sentences – where the applicant contended that individual sentences for some of the juvenile sentences were too high – where the appropriate penalty for dangerous driving will depend upon factors including the course of driving and the consequences of it – where the applicant was travelling at double the speed limit, driving a stolen car and it was illegal for him to be driving without supervision – where other individual sentences on the Childrens Court indictment were challenged for being manifestly excessive – whether individual sentences were manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant sought leave to appeal against the overall effect of the sentence imposed for numerous offences – where mitigating factors including that the applicant had entered an early plea and had, by and large, co-operated with police –…