R v Burnett-Greenland - [2017] QCA 159

SUPREME COURT OF QUEENSLAND

CITATION:

R v Burnett-Greenland [2017] QCA 159

PARTIES:

R
v
BURNETT-GREENLAND, Kurtis John
(applicant)

FILE NO/S:

CA No 105 of 2017
DC No 333 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 24 April 2017

DELIVERED ON:

Orders delivered 13 July 2017
Reasons delivered 28 July 2017

DELIVERED AT:

Brisbane

HEARING DATE:

13 July 2017

JUDGES:

Sofronoff P and Gotterson JA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Orders delivered ex tempore 13 July 2017:

1.   Leave to appeal granted.

2.   Appeal allowed.

3.   Sentence imposed on 24 April 2017 set aside.

4.   The appellant is sentenced to a term of imprisonment of two years, such sentence to be suspended after the appellant has served five months’ imprisonment with an operative period of two years.

5.   Pre-sentence custody between 24 April 2017 and 12 July 2017 is declared as time served.

6.   The appellant is disqualified from holding or obtaining a Queensland driving license for a period of 12 months from 13 July 2017.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – where the applicant pleaded guilty to dangerous driving of a vehicle causing grievous bodily harm with a circumstance of aggravation – where the sentencing judge misstated the circumstances of the offence and classified the applicant’s conduct as ‘repeated recklessness’ – whether the sentencing judge erred in his understanding of the facts of the offence

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

R v Coutts[2016] QCA 206, cited
R v Etheridge[2016] QCA 241, cited
R v Hooper; ex parte Cth DPP[2008] QCA 308, cited
R v MacDonald (2014) 244 A Crim R 148; [2014] QCA 9, cited

COUNSEL:

B J Power for the applicant
G P Cash QC for the respondent

SOLICITORS:

Robertson O’Gorman Solicitors for the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with the reasons of Applegarth J.
GOTTERSON JA: I agree with the reasons given by Applegarth J.
APPLEGARTH J: On 24 April 2017 the applicant was convicted on his plea of guilty on a count of dangerous operation of a vehicle causing grievous bodily harm. A circumstance of aggravation was that he left the scene of the incident before a police officer arrived.[1] He was sentenced to two and a half years’ imprisonment, with release on parole after serving nine months.
[1]The Criminal Code (Qld) s 328A(4)(c).
At the hearing of his application for leave to appeal against sentence on 13 July 2017, the Court was persuaded that the sentencing judge erred in his understanding of the facts of the offence. The Court ordered:
(1)Leave to appeal granted;
(2)Appeal allowed;
(3)The sentence imposed on 24 April 2017 is set aside;
(4)The appellant is sentenced to a term of imprisonment of two years, such sentence to be…

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.

Keep reading for free

Create a free CaseChat account to read R v Burnett-Greenland and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] QCA 159
Decision Date: 28 July 2017

CaseChat Overview and Summary

The appellant, Burnett-Greenland, appealed against the sentence imposed by the sentencing judge, who misstated the circumstances of the offence and classified the conduct as ‘repeated recklessness.’ The appellant pleaded guilty to dangerous driving of a vehicle causing grievous bodily harm with an aggravating circumstance. The primary legal issue was whether the sentencing judge erred in his understanding of the facts of the offence. The appeal raised questions about the appropriate sentence for the offence and the impact of the misstatement on the final sentence.

The court found that the sentencing judge had indeed misstated the circumstances of the offence and incorrectly classified the appellant’s conduct. This misclassification led to a harsher sentence than would have been imposed had the correct facts been applied. The court held that the sentencing judge's error in understanding the facts constituted a significant procedural error warranting interference. The court concluded that the sentence imposed was manifestly inadequate, given the nature and seriousness of the offence, and that the misclassification by the sentencing judge had a substantial impact on the final sentence.

The appeal was allowed, and the sentence imposed on 24 April 2017 was set aside. The appellant was sentenced to a term of imprisonment of two years, which was to be suspended after serving five months. Pre-sentence custody between 24 April 2017 and 12 July 2017 was declared as time served. Additionally, the appellant was disqualified from holding or obtaining a Queensland driving license for a period of 12 months from 13 July 2017. The court’s decision underscores the importance of accurate fact-finding in sentencing and the need for sentences to appropriately reflect the true nature of the offence.

Orders

Orders of the court

Orders delivered ex tempore 13 July 2017:

1. Leave to appeal granted.

2. Appeal allowed.

3. Sentence imposed on 24 April 2017 set aside.

4. The appellant is sentenced to a term of imprisonment of two years, such sentence to be suspended after the appellant has served five months’ imprisonment with an operative period of two years.

5. Pre-sentence custody between 24 April 2017 and 12 July 2017 is declared as time served.

6. The appellant is disqualified from holding or obtaining a Queensland driving license for a period of 12 months from 13 July 2017.

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 Burnett-Greenland [2017] QCA 159
PARTIES:	R v BURNETT-GREENLAND, Kurtis John (applicant)
FILE NO/S:	CA No 105 of 2017 DC No 333 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 24 April 2017
DELIVERED ON:	Orders delivered 13 July 2017 Reasons delivered 28 July 2017
DELIVERED AT:	Brisbane
HEARING DATE:	13 July 2017
JUDGES:	Sofronoff P and Gotterson JA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Orders delivered ex tempore 13 July 2017: 1. Leave to appeal granted. 2. Appeal allowed. 3. Sentence imposed on 24 April 2017 set aside. 4. The appellant is sentenced to a term of imprisonment of two years, such sentence to be suspended after the appellant has served five months’ imprisonment with an operative period of two years. 5. Pre-sentence custody between 24 April 2017 and 12 July 2017 is declared as time served. 6. The appellant is disqualified from holding or obtaining a Queensland driving license for a period of 12 months from 13 July 2017.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – where the applicant pleaded guilty to dangerous driving of a vehicle causing grievous bodily harm with a circumstance of aggravation – where the sentencing judge misstated the circumstances of the offence and classified the applicant’s conduct as ‘repeated recklessness’ – whether the sentencing judge erred in his understanding of the facts of the offence Criminal Code (Qld), s 328A(4)(c) R v Coutts[2016] QCA 206, cited R v Etheridge[2016] QCA 241, cited R v Hooper; ex parte Cth DPP[2008] QCA 308, cited R v MacDonald (2014) 244 A Crim R 148; [2014] QCA 9, cited
COUNSEL:	B J Power for the applicant G P Cash QC for the respondent
SOLICITORS:	Robertson O’Gorman Solicitors for the applicant Director of Public Prosecutions (Queensland) for the respondent