R v Browne - [2016] QCA 111

SUPREME COURT OF QUEENSLAND

CITATION:

R v Browne [2016] QCA 111

PARTIES:

R
v
BROWNE, Robert Wayne
(applicant)

FILE NO/S:

CA No 268 of 2015
DC No 104 of 2015
DC No 298 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore – Date of Sentence: 24 September 2015

DELIVERED ON:

29 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

5 April 2016

JUDGES:

Fraser and Gotterson JJA and Douglas J
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 – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to dangerous operation of a motor vehicle causing grievous bodily harm while adversely affected by an intoxicating substance, as well as to five related summary offences – where, for the indictable offence, the applicant was sentenced to four years’ imprisonment to be suspended after 16 months with an operational period of four years, and was disqualified from driving or obtaining a driver’s licence for four years – where the applicant was further punished for two summary offences: disqualified from driving or obtaining a driver’s licence for a period of six months for driving under the influence of liquor, and for a period of six months for failing to provide a specimen of blood for test on requirement – where the Court granted the applicant an extension of time to file an application for leave to appeal against sentence – where the applicant filed an application for leave to appeal against sentence, alleging the sentence was, in all the circumstances, manifestly excessive – where the applicant alleges that the court’s attention had not been drawn to the fact that the effect of a newly prescribed anti-depressant was unknown to him and may have caused the appearance of intoxication at the time of the offence – where the applicant alleges that the learned sentencing judge did not afford sufficient weight to the evidence of the paramedic who treated the applicant at the scene – where there was overwhelming evidence of the applicant’s significant state of intoxication – where the statements concerning the effects of the newly prescribed anti-depressant were not supported by any evidence – whether the sentence imposed is manifestly excessive

Criminal Code (Qld), s 328A(4)

R v Johnson[2011] QCA 78, considered
R v Pham (2015) 90 ALJR 13; [2015] HCA 39, applied
R v Robinson[2004] QCA 467, considered
R v Roser[2005] QCA 457, considered
R v Saltmarsh[2007] QCA 25, considered
R v Tabakovic (2005) 154 A Crim R 30; [2005] QCA 90, considered
R v Tresize[2011] QCA 139, considered

COUNSEL:

The applicant appeared on his own behalf
B J Merrin for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA:

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 Browne

Details

AGLC: R v Browne [2016] QCA 111
Case: [2016] QCA 111
Decision Date: 29 April 2016

CaseChat Overview and Summary

The case before the court was an appeal against the sentence imposed on the applicant, Browne, following his guilty plea to dangerous operation of a motor vehicle causing grievous bodily harm while adversely affected by an intoxicating substance, as well as five related summary offences. The applicant was sentenced to four years’ imprisonment for the indictable offence, which was to be suspended after 16 months, and disqualified from driving or obtaining a driver’s licence for four years. Additionally, the applicant was punished for two summary offences, each resulting in a six-month disqualification from driving or obtaining a driver’s licence. The applicant sought leave to appeal against the sentence, arguing it was manifestly excessive and that the sentencing judge failed to consider certain mitigating factors, such as the unknown effects of a newly prescribed anti-depressant that may have contributed to his intoxicated state.

The primary legal issues before the court were whether the sentence imposed was manifestly excessive and whether the sentencing judge had failed to adequately consider certain mitigating evidence. The applicant argued that the court's attention had not been drawn to the fact that the effect of the newly prescribed anti-depressant was unknown to him at the time of the offence, which may have contributed to his intoxicated state. Furthermore, the applicant contended that the sentencing judge did not sufficiently weigh the evidence of the paramedic who treated him at the scene. However, the court noted that there was overwhelming evidence of the applicant’s significant state of intoxication and that the statements concerning the effects of the anti-depressant were not supported by any evidence.

In evaluating the application, the court considered the overall circumstances of the case, the severity of the offence, and the applicant's criminal history. The court held that the sentence imposed was not manifestly excessive, taking into account the seriousness of the offence and the need for general deterrence. The court also found that the sentencing judge had appropriately considered the available evidence and that any errors in the assessment of mitigating factors did not result in a manifestly excessive sentence. Consequently, the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Browne [2016] QCA 111
PARTIES:	R v BROWNE, Robert Wayne (applicant)
FILE NO/S:	CA No 268 of 2015 DC No 104 of 2015 DC No 298 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maroochydore – Date of Sentence: 24 September 2015
DELIVERED ON:	29 April 2016
DELIVERED AT:	Brisbane
HEARING DATE:	5 April 2016
JUDGES:	Fraser and Gotterson JJA and Douglas J 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 – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to dangerous operation of a motor vehicle causing grievous bodily harm while adversely affected by an intoxicating substance, as well as to five related summary offences – where, for the indictable offence, the applicant was sentenced to four years’ imprisonment to be suspended after 16 months with an operational period of four years, and was disqualified from driving or obtaining a driver’s licence for four years – where the applicant was further punished for two summary offences: disqualified from driving or obtaining a driver’s licence for a period of six months for driving under the influence of liquor, and for a period of six months for failing to provide a specimen of blood for test on requirement – where the Court granted the applicant an extension of time to file an application for leave to appeal against sentence – where the applicant filed an application for leave to appeal against sentence, alleging the sentence was, in all the circumstances, manifestly excessive – where the applicant alleges that the court’s attention had not been drawn to the fact that the effect of a newly prescribed anti-depressant was unknown to him and may have caused the appearance of intoxication at the time of the offence – where the applicant alleges that the learned sentencing judge did not afford sufficient weight to the evidence of the paramedic who treated the applicant at the scene – where there was overwhelming evidence of the applicant’s significant state of intoxication – where the statements concerning the effects of the newly prescribed anti-depressant were not supported by any evidence – whether the sentence imposed is manifestly excessive Criminal Code (Qld), s 328A(4) R v Johnson[2011] QCA 78, considered R v Pham (2015) 90 ALJR 13; [2015] HCA 39, applied R v Robinson[2004] QCA 467, considered R v Roser[2005] QCA 457, considered R v Saltmarsh[2007] QCA 25, considered R v Tabakovic (2005) 154 A Crim R 30; [2005] QCA 90, considered R v Tresize[2011] QCA 139, considered
COUNSEL:	The applicant appeared on his own behalf B J Merrin for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent