R v Browning

[2018] QCA 337

SUPREME COURT OF QUEENSLAND

CITATION:

R v Browning [2018] QCA 337

PARTIES:

R

v

BROWNING, Scott Cameron
(applicant)

FILE NO/S:

CA No 304 of 2018

DC No 581 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns – Date of Sentence: 19 November 2018 (Clare SC DCJ)

DELIVERED EX TEMPORE ON:

5 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

5 December 2018

JUDGES:

Sofronoff P and Philippides JA and Boddice J

ORDER:

The application for leave to appeal against sentence is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –

APPEAL AGAINST SENTENCE – where the applicant was sentenced to 18 months imprisonment for one count of dangerous operation of a vehicle causing death – where the applicant was a professional truck driver – where the applicant had a not insubstantial traffic history – where the applicant drove a heavy vehicle that had only one of six brakes working and worn suspension – where the applicant’s mother was the person killed – whether the sentence was manifestly excessive

R v Illin (2014) 246 A Crim R 176; [2014] QCA 285, cited

R v Todd [1982] 2 NSWLR 517, cited

COUNSEL:

A J Kimmins appeared for the applicant C N Marco for the respondent

SOLICITORS:

McGinness & Associates as town agent for Mellick Smith & Associates for the applicant

Director of Public Prosecutions (Queensland) for the respondent

BODDICE J: On 18 May 2018, the applicant entered a plea of guilty to one count of dangerous operation of a vehicle causing death. On 19 November 2018, the applicant was sentenced to imprisonment for 18 months for that offence. That sentence was ordered to be suspended, after the applicant had served a period of three months imprisonment, for an operational period of two and a-half years. The applicant was also disqualified from holding or obtaining a driver’s licence for six months.

The applicant seeks leave to appeal that sentence. In his initial application, the applicant relied upon one ground of appeal, should leave be given, namely, that the sentence imposed was manifestly excessive in all of the circumstances.

At the hearing of the application, the applicant was granted leave to amend his proposed ground of appeal to allege that the sentencing judge erred in her sentencing discretion, in that she failed to:

(a)state in open Court that she had taken account of the guilty plea in determining the sentence imposed, as required under s 13(3) of the Penalties and Sentences Act;

(b)take into account the delay between the date of the offence and the date of the applicant’s sentence;

(c)give sufficient and adequate weight to the victim impact statement and extracurial punishment by the applicant as a result of the death of his mother;

(d)invite submissions of the parties in relation to a sentence involving actual custody.

The applicant was born on 4 October 1967. He was 51 years of age at sentence and 47 years of age at the time of the…