R v Brumby - [2023] QCA 23

SUPREME COURT OF QUEENSLAND

CITATION:

R v Brumby [2023] QCA 23

PARTIES:

R
v
BRUMBY, Shelley Louise
(applicant)

FILE NO/S:

CA No 137 of 2022
DC No 509 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 9 June 2022 (Clare SC DCJ)

DELIVERED ON:

24 February 2023

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2023

JUDGES:

Bowskill CJ and McMurdo JA and Gotterson AJA

ORDER:

The application for leave to appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of dangerous operation of a vehicle causing death while adversely affected by an intoxicating substance while excessively speeding – where the primary judge sentenced the applicant to nine years’ imprisonment without an early parole eligibility date – where the applicant engaged in dangerous driving on a busy suburban road, causing the death of one person – where the applicant entered a plea of guilty and demonstrated remorse – where the applicant applies for leave to appeal the sentence on the ground that the failure to set an early parole eligibility date rendered the sentence manifestly excessive – whether the primary judge mistook the facts relevant to the seriousness of the offending – whether the sentence imposed was manifestly excessive

R v Barnham[2019] QCA 38, considered
R v Frost; Ex parte Attorney-General (Qld) (2004) 149 A Crim R 151; [2004] QCA 309, considered
R v Henderson; Ex parte Attorney-General (Qld)[2013] QCA 63, cited
R v Moody[2016] QCA 92, considered
R v Thomas[2015] QCA 20, cited
R v Vessey; Ex parte Attorney-General (Qld) (1996) 86 A Crim R 290; [1996] QCA 11, considered
R v Williams[2020] QCA 46, considered

COUNSEL:

M J Copley KC, with C F C Wilson, for the applicant
P J McCarthy KC for the respondent

SOLICITORS:

Spire Law for the applicant
Director of Public Prosecutions (Queensland) for the respondent

BOWSKILL CJ: On 9 June 2022 the applicant was convicted, on her plea of guilty, of one count of dangerous operation of a vehicle causing death, with the circumstances of aggravation that she did so while adversely affected by alcohol and while excessively speeding. She was sentenced to 9 years’ imprisonment, with no recommendation for early release on parole. She will therefore become eligible for parole at the point at which she has served half the period of imprisonment imposed on her.
The applicant applies for leave to appeal against the sentence imposed upon her. Two grounds are relied upon: first, that the learned sentencing judge erred in that she mistook the facts relevant to the seriousness of the offending; and, second, that the sentence was manifestly excessive in the circumstances.
For the following reasons, I would dismiss the application as neither ground has been established.
The circumstances of the offence were…

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 Brumby

Details

AGLC: R v Brumby [2023] QCA 23
Case: [2023] QCA 23
Decision Date: 24 February 2023

CaseChat Overview and Summary

In the matter of R v Brumby, the appellant was sentenced to nine years' imprisonment for dangerous operation of a vehicle causing death while adversely affected by an intoxicating substance, and while excessively speeding. The sentence imposed by the primary judge did not include an early parole eligibility date, and the appellant now seeks leave to appeal this aspect of the sentence. The appellant contends that the failure to set an early parole eligibility date renders the sentence manifestly excessive and that the primary judge may have mistaken the facts relevant to the seriousness of the offending.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive, and whether the primary judge had made an error in assessing the seriousness of the offending. The court considered whether the sentence was disproportionate to the gravity of the offence and whether it could be said to be manifestly excessive. The court also examined whether the primary judge had erred in any factual assessment that might have influenced the sentence.

The court held that the sentence imposed by the primary judge was not manifestly excessive and that there was no error in the factual assessment that would warrant interference with the sentence. The court noted that the appellant had engaged in dangerous driving on a busy suburban road, resulting in the death of one person. The court emphasised the importance of deterrence and denunciation in sentencing and found that the sentence of nine years' imprisonment without an early parole eligibility date was appropriate given the gravity of the offence. The court further found that the primary judge had not erred in any factual assessment relevant to the seriousness of the offending.

Accordingly, the application for leave to appeal was dismissed. The sentence of nine years' imprisonment without an early parole eligibility date was affirmed as appropriate and proportionate to the gravity of the offence committed by the appellant.

Orders

Orders of the court

The application for leave to appeal is dismissed.

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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CITATION:	R v Brumby [2023] QCA 23
PARTIES:	R v BRUMBY, Shelley Louise (applicant)
FILE NO/S:	CA No 137 of 2022 DC No 509 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 9 June 2022 (Clare SC DCJ)
DELIVERED ON:	24 February 2023
DELIVERED AT:	Brisbane
HEARING DATE:	13 February 2023
JUDGES:	Bowskill CJ and McMurdo JA and Gotterson AJA
ORDER:	The application for leave to appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of dangerous operation of a vehicle causing death while adversely affected by an intoxicating substance while excessively speeding – where the primary judge sentenced the applicant to nine years’ imprisonment without an early parole eligibility date – where the applicant engaged in dangerous driving on a busy suburban road, causing the death of one person – where the applicant entered a plea of guilty and demonstrated remorse – where the applicant applies for leave to appeal the sentence on the ground that the failure to set an early parole eligibility date rendered the sentence manifestly excessive – whether the primary judge mistook the facts relevant to the seriousness of the offending – whether the sentence imposed was manifestly excessive R v Barnham[2019] QCA 38, considered R v Frost; Ex parte Attorney-General (Qld) (2004) 149 A Crim R 151; [2004] QCA 309, considered R v Henderson; Ex parte Attorney-General (Qld)[2013] QCA 63, cited R v Moody[2016] QCA 92, considered R v Thomas[2015] QCA 20, cited R v Vessey; Ex parte Attorney-General (Qld) (1996) 86 A Crim R 290; [1996] QCA 11, considered R v Williams[2020] QCA 46, considered
COUNSEL:	M J Copley KC, with C F C Wilson, for the applicant P J McCarthy KC for the respondent
SOLICITORS:	Spire Law for the applicant Director of Public Prosecutions (Queensland) for the respondent