R v Callaghan - [2006] QCA 243

SUPREME COURT OF QUEENSLAND

CITATION:

R v Callaghan [2006] QCA 243

PARTIES:

R
v
CALLAGHAN, Christopher Andrew
(applicant)

FILE NO/S:

CA No 41 of 2006
DC No 157 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against sentence

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

23 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

12 May 2006

JUDGES:

Jerrard JA, White and Philippides JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

1. Application for leave to appeal against sentence granted
2. Appeal against sentence allowed
3. Original sentence set aside and in lieu thereof substitute a sentence of three years imprisonment, suspended after the applicant has served nine months, with operational period of three years

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – applicant convicted of dangerous operation of a motor vehicle causing death when adversely affected by alcohol – sentenced to four years imprisonment, suspended after serving 16 months, with four year operational period – whether sentence was manifestly excessive in all the circumstances

R v Anderson [2005] QCA 304; CA No 71 of 2005, 23 August 2005, considered
R v Balic [2005] QCA 212; CA No 57 of 2005, 17 June 2005, considered
R v Cusak; ex parte A-G (Qld) [2000] QCA 239, CA No 90 of 2000, 16 June 2000, considered
R v Merrill; ex parte A-G (Qld) [2002] QCA 263; CA No 86 of 2002, 25 July 2002, considered
R v Murphy [2003] QCA 128; CA No 21 of 2003, 20 March 2003, considered
R v Quinn [2003] QCA 417; CA No 241 of 2003, 22 September 2003, considered
R v Tabakovic (2005) 154 A Crim R 30; [2005] QCA 90; CA No 3 of 2005, 8 April 2005, considered
R v Thumm; ex parte A-G (Qld) [1999] QCA 355; CA No 186 of 1999, 27 August 1999, considered

COUNSEL:

The applicant appeared on his own behalf
D L Meredith for the respondent

SOLICITORS:

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

JERRARD JA: On 24 January 2006 Mr Callaghan pleaded guilty to the offence of dangerously operating a motor vehicle and causing the death of Mathew Raymond Callaghan, when adversely affected by an intoxicating substance, namely alcohol. He was sentenced the next day to four years imprisonment, to be suspended after he had served 16 months, with an operational period of four years; he was also disqualified from holding or obtaining a driver’s license for three years. He has applied for leave to appeal against his sentence, contending that it is manifestly excessive in all the circumstances.

The person killed was his 16 year old son. The facts described in the sentencing remarks by the learned judge were that the…

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 Callaghan

Details

AGLC: R v Callaghan [2006] QCA 243
Case: [2006] QCA 243
Decision Date: 23 June 2006

CaseChat Overview and Summary

The case before the court involved an appeal by the applicant, who had been convicted of dangerous operation of a motor vehicle causing death, with the aggravating factor that the offence occurred while the applicant was adversely affected by alcohol. The applicant was originally sentenced to four years imprisonment, suspended after serving 16 months, with a four-year operational period. The applicant sought to have the sentence reduced, contending that it was manifestly excessive in all the circumstances. The court was required to determine whether the original sentence was indeed manifestly excessive and, if so, what alternative sentence should be imposed.

The legal issue before the court was whether the original sentence was manifestly excessive, taking into account all relevant factors. In considering this, the court had to assess the severity of the offence, the culpability of the applicant, and the principles of sentencing for similar offences. The court also needed to weigh the mitigating factors presented by the applicant, such as his otherwise good character and the remorse shown, against the gravity of the offence. The court had to balance these considerations to determine if a manifestly excessive sentence had been imposed.

The court concluded that the original sentence was manifestly excessive. The court found that while the offence was serious, the applicant's culpability was not at the highest end of the spectrum for such offences. The court also took into account the mitigating factors and the principles of sentencing for similar offences. In light of these considerations, the court determined that a reduced sentence was warranted. The court set aside the original sentence and substituted a sentence of three years imprisonment, suspended after the applicant had served nine months, with an operational period of three years. This decision reflected a more proportionate sentence in light of all the circumstances of the case.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal against sentence allowed

3. Original sentence set aside and in lieu thereof substitute a sentence of three years imprisonment, suspended after the applicant has served nine months, with operational period of three years

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Callaghan [2006] QCA 243
PARTIES:	R v CALLAGHAN, Christopher Andrew (applicant)
FILE NO/S:	CA No 41 of 2006 DC No 157 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against sentence
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	23 June 2006
DELIVERED AT:	Brisbane
HEARING DATE:	12 May 2006
JUDGES:	Jerrard JA, White and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	1. Application for leave to appeal against sentence granted 2. Appeal against sentence allowed 3. Original sentence set aside and in lieu thereof substitute a sentence of three years imprisonment, suspended after the applicant has served nine months, with operational period of three years
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – applicant convicted of dangerous operation of a motor vehicle causing death when adversely affected by alcohol – sentenced to four years imprisonment, suspended after serving 16 months, with four year operational period – whether sentence was manifestly excessive in all the circumstances R v Anderson [2005] QCA 304; CA No 71 of 2005, 23 August 2005, considered R v Balic [2005] QCA 212; CA No 57 of 2005, 17 June 2005, considered R v Cusak; ex parte A-G (Qld) [2000] QCA 239, CA No 90 of 2000, 16 June 2000, considered R v Merrill; ex parte A-G (Qld) [2002] QCA 263; CA No 86 of 2002, 25 July 2002, considered R v Murphy [2003] QCA 128; CA No 21 of 2003, 20 March 2003, considered R v Quinn [2003] QCA 417; CA No 241 of 2003, 22 September 2003, considered R v Tabakovic (2005) 154 A Crim R 30; [2005] QCA 90; CA No 3 of 2005, 8 April 2005, considered R v Thumm; ex parte A-G (Qld) [1999] QCA 355; CA No 186 of 1999, 27 August 1999, considered
COUNSEL:	The applicant appeared on his own behalf D L Meredith for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent