R v Breckenridge - [2001] QCA 448

[2001] QCA 448
COURT OF APPEAL

McMURDO P
DAVIES JA
AMBROSE J

CA No 194 of 2001

THE QUEEN

COLIN ROBERT BRECKENRIDGE Applicant

BRISBANE

..DATE 16/10/2001

JUDGMENT

AMBROSE J: On 10 July 2001 the applicant pleaded guilty to a charge that on 24 October 1999 he dangerously operated a motor vehicle on a roadway causing grievous bodily harm and that at that time he committed that offence he had a blood alcohol concentration exceeding .15 per cent.

He also pleaded guilty to the summary offence of driving a motor vehicle whilst under the influence of liquor but having regard to the sentence imposed upon the indictable offence no further punishment was imposed.

He was sentenced on the indictable offence to imprisonment for five years to be suspended after serving two years and two months with an operational period of five years and he was disqualified absolutely from holding or obtaining a driving licence.

At the time of the offence the applicant was 40 years of age and when sentenced he was 42 years of age. In 1980 and 1985 he had convictions for minor drug offences. Between 1981 and 1997, a period ending about two years and 10 months prior to the commission of the offence for which he was sentenced, he had been convicted on six offences of driving a motor vehicle under the influence of alcohol and penalties were imposed with respect to each of those charges when convicted. He had also been convicted of a number of traffic offences. So he had a bad driving history.

When imposing sentence the learned sentencing Judge observed that at the time of the offence he had a concentration, in fact, of .235 per cent blood alcohol. Prior to the commission of the offence it had been suggested to him, at the hotel, that he not drive because he was affected by alcohol. However, he disregarded this advice.

The learned sentencing Judge pointed out that the maximum imprisonment for the offence to which he pleaded guilty, with the admitted circumstance of aggravation, was 14 years' imprisonment. His Honour commented on the fact that his intoxication at the time of the offence might be partly explained by the fact that the applicant had a bipolar disorder, that is, a manic depression. He observed that the applicant had not been taking his prescribed medication properly and that this perhaps was attributable to personal difficulties he was having at the time in Family Court proceedings with respect to access to his daughter.

His Honour commented on the fact that apart from the plea of guilty, which he took into account, the applicant seemed to express no remorse. He commented that it was conceded by the Crown that a submission by his counsel that a sentence of imprisonment for five years would be appropriate although a longer period might also be appropriate. He considered whether making an order for earlier eligibility for parole or the imposition of a suspended sentence was appropriate and was…

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 Breckenridge

Details

AGLC: R v Breckenridge [2001] QCA 448
Case: [2001] QCA 448
Decision Date: 16/10/2001

CaseChat Overview and Summary

In the case of R v Breckenridge, the applicant, Colin Robert Breckenridge, appealed against his sentence, which was imposed after he pleaded guilty to dangerously operating a motor vehicle on a roadway causing grievous bodily harm while having a blood alcohol concentration exceeding.15 per cent. The primary issue before the Court of Appeal was whether the sentence imposed by the sentencing judge was manifestly excessive. The Court of Appeal had to consider whether the applicant's bipolar disorder and alcohol addiction, as well as the psychiatric reports that were not presented at the time of sentencing, should have been taken into account, and whether the sentence imposed was within the appropriate range.

The Court of Appeal held that an application for leave to appeal against sentence is not a hearing de novo of matters relevant to sentence. Where experienced counsel has elected not to place certain evidence before the sentencing court, the Court of Appeal will only in rare cases, if any, receive such evidence upon an application of this kind. Additionally, the Court of Appeal found that even if the additional evidence upon which the applicant sought to rely were received upon sentence, it would not demonstrate that the sentence imposed was manifestly excessive. The Court of Appeal also noted that the applicant had a serious prior record for drink driving and that the sentence imposed was well within the range suggested by the applicant's counsel at sentence.

In conclusion, the Court of Appeal refused the application for leave to appeal against sentence. The Court found that the sentence imposed was not manifestly excessive, even taking into account the applicant's bipolar disorder and alcohol addiction. The Court also held that the medical evidence which the appellant sought to adduce before the Court of Appeal did not support the contention that he was in a manic phase or had a bipolar effective disorder when he committed the offence. The Court of Appeal thus upheld the sentence imposed by the sentencing judge.

Orders