R v Brown; ex parte Attorney-General - [1993] QCA 271

IN THE COURT OF APPEAL [1993] QCA 271

SUPREME COURT OF QUEENSLAND

C.A. No. 167 of 1993

Brisbane
[R v. Brown]

BETWEEN

T H E Q U E E N
v.
ANDREW JUSTIN BROWN

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

________________________________________________________________

Macrossan C.J.
Pincus J.A.
Lee J.

________________________________________________________________

Judgment delivered 4 August 1993
Separate reasons of Macrossan C.J., Pincus J.A. and Lee J.
Macrossan C.J. and Lee J. concurring as to the order made,
Pincus J.A. dissenting.
________________________________________________________________

APPEAL DISMISSED.
________________________________________________________________

CATCHWORDS: CRIMINAL LAW - dangerous driving causing death - whether conviction should have been recorded.

Counsel:	Mr D Bullock for the appellant. Mr A Rafter for the respondent.
Solicitors:	Director of Prosecutions for the appellant. Legal Aid Office for the respondent.
Hearing Date:	14 July 1993.

IN THE COURT OF APPEAL

Q	UEENSLAND
B	risbane

Before The Chief Justice

Mr Justice Pinc us
Mr Justice Lee

[	R. v. Brown]

C.A. No. 167 of 1993

T H E Q U E E N

ANDREW JUSTIN BROWN

(Respondent)

ATTORNEY-GENERAL OF QUEENSLAND

(Appellant)

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 04.08.1993

In my view this appeal which was brought by the Attorney- General against sentence should be dismissed.

The respondent was, following a trial, convicted of dangerous driving causing death. He was ordered to perform two hundred hours of community service and was disqualified from holding or obtaining a driver's licence for three years. It was ordered that no conviction should be recorded and this is the aspect which the appeal seeks to challenge.

The learned trial judge's remarks when sentencing indicated that he gave anxious consideration to all aspects of his task and I am unable to detect any error in his approach. He reviewed the relevant features of the case before deciding that a custodial term was not called for. He would undoubtedly have been confirmed in his conclusion by the attitude of the prosecutor who conceded that it was not a case where it was necessary to impose a term of imprisonment, saying that a substantial fine or order for community service would meet the case. The prosecutor offered his opinion to the sentencing judge that there was not much purpose to be served in sending the youthful respondent to prison.

On the hearing of the appeal, counsel for the appellant, in deference to what had occurred below, quite properly refrained from questioning the non-custodial term which had been imposed and restricted his submission to formally pressing for the recording of a conviction. However, he based his submission upon the nature of the offence involved, the claimed serious aspects of the case and the culpability of the respondent. This might be thought to involve, at least indirectly, a measure of departure from the Crown attitude expressed below. In submitting that it was erroneous not to have imposed a conviction, counsel for the appellant did not say that he accepted that it was a case where a term of imprisonment was not called for.…

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.

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Details

Case: [1993] QCA 271
Decision Date: 4/08/1993

CaseChat Overview and Summary

The appeal was brought by the Attorney-General against the sentence imposed on the respondent, Andrew Justin Brown, who had been convicted of dangerous driving causing death. The trial judge ordered the respondent to perform 220 hours of community service and disqualified him from holding or obtaining a driver's licence for three years. However, the judge decided not to record a conviction. The appeal sought to challenge this decision. The Court of Appeal was required to determine whether the trial judge's decision not to record a conviction was correct.

The Court of Appeal considered the facts of the case, including the respondent's speed, the visibility conditions at the scene of the accident, and the actions of the other driver involved in the collision. The Court also examined the sentencing discretion conferred by the Penalties and Sentences Act 1992, particularly the factors to be considered when deciding whether or not to record a conviction.

The majority of the Court, Macrossan C.J. and Lee J., concluded that the trial judge's decision not to record a conviction was within the scope of his discretion. They noted that the respondent was a young man with no previous convictions and a good employment record. The majority found that the trial judge had given anxious consideration to all aspects of the case and had not erred in his approach. They also emphasised the importance of achieving consistency in sentencing while allowing for the exercise of discretion in individual cases.

Pincus J.A., however, dissented from the majority decision. He considered that the offence committed was too serious to warrant lenient treatment and that the trial judge should have recorded a conviction. Pincus J.A. emphasised the need for courts to reflect society's concern and condemnation of criminally bad driving.

Ultimately, the appeal was dismissed, with Macrossan C.J. and Lee J. concurring as to the order made. The Court did not find that the trial judge's decision not to record a conviction was erroneous, and thus the sentence imposed was upheld.

Orders