R v CAN - [2009] QCA 59

SUPREME COURT OF QUEENSLAND

CITATION:

R v CAN [2009] QCA 59

PARTIES:

R
v
CAN
(applicant)

FILE NO/S:

CA No 268 of 2008
DC No 118 of 2008
DC No 123 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maryborough

DELIVERED ON:

20 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

20 February 2009

JUDGES:

Holmes and Muir JJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal against sentence is refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted on plea of guilty on one count of dangerous operation of a vehicle causing death with a circumstance of aggravation and sentenced to seven years imprisonment – where applicant also pleaded guilty to one count of dangerous operation of a motor vehicle whilst adversely affected by intoxicating substance, one count of assault occasioning bodily harm, one count of common assault and one count of wilful damage – where applicant received concurrent sentences for the latter offences – where applicant convicted of further summary offences for which he was not further punished – where applicant submitted mitigating factors should have reduced sentence – whether trial judge should have made a recommendation for eligibility for parole – whether sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 156(1), s 160C(5)

R v Conquest & Attorney-General of Queensland [1995] QCA 567, cited
R v Dingle [2003] QCA 7, cited
R v Fripp [2003] QCA 4, cited
R v Lennon [1999] QCA 192, cited
R v McKinnon [1999] QCA 75, cited
R v Wilde; ex parte A-G (Qld) (2002) 135 A Crim R 538; [2002] QCA 501, cited

COUNSEL:

D J Murray for the applicant
S G Bain for the respondent

SOLICITORS:

Ian K Pilgrim Solicitors for the applicant
Department of Public Prosecutions (Queensland) for the respondent

: HOLMES JAI agree with the reasons of Atkinson J and with the order her Honour proposes.

MUIR JA: I agree with the reasons of Atkinson J and with the order she proposes.

ATKINSON J: The applicant, CAN, has applied for leave to appeal against a sentence imposed upon him in the District Court on 10 September 2008. On that date he was convicted on his own plea of guilty on one count of dangerous operation of a vehicle causing death with a circumstance of aggravation. He was sentenced to seven years imprisonment with a declaration that he had spent 600 days in pre-sentence custody from 13 January 2007 to 9 September 2008. The maximum penalty for this offence was 14 years imprisonment.

The applicant also pleaded guilty to a large number of other counts for which he received concurrent sentences. On one count of dangerous operation of a motor vehicle whilst adversely affected by an…

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 CAN

Details

AGLC: R v CAN [2009] QCA 59
Case: [2009] QCA 59
Decision Date: 20 March 2009

CaseChat Overview and Summary

In the case of R v CAN, the applicant appealed against the sentence imposed by the Supreme Court of Victoria. CAN had pleaded guilty to multiple charges, including dangerous operation of a vehicle causing death, dangerous operation of a motor vehicle while intoxicated, assault occasioning bodily harm, common assault, and wilful damage. The applicant submitted that the sentence was manifestly excessive, as it did not adequately take into account mitigating factors and failed to consider a recommendation for parole eligibility.

The legal issues before the court were whether the sentence imposed was manifestly excessive or inadequate, and if the trial judge should have made a recommendation for eligibility for parole. The applicant argued that the trial judge had failed to appropriately consider mitigating factors, such as the applicant's guilty plea, remorse, and lack of prior convictions. Furthermore, the applicant contended that the trial judge should have made a recommendation for parole eligibility, which would have reduced the effective length of the sentence.

The court considered the arguments presented by the applicant but ultimately found that the sentence was not manifestly excessive. The court acknowledged the mitigating factors but emphasised the gravity of the offence, which involved the death of a person and multiple other serious charges. The court also found that the trial judge was not obliged to make a recommendation for parole eligibility, as it was not a mandatory consideration in sentencing. Consequently, the application for leave to appeal against sentence was refused.

The court's orders confirmed the refusal of the application for leave to appeal against sentence. The sentence imposed by the trial judge remained unchanged, and no further appeal was permitted.

Orders

Orders of the court

The application for leave to appeal against sentence is 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 CAN [2009] QCA 59
PARTIES:	R v CAN (applicant)
FILE NO/S:	CA No 268 of 2008 DC No 118 of 2008 DC No 123 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maryborough
DELIVERED ON:	20 March 2009
DELIVERED AT:	Brisbane
HEARING DATE:	20 February 2009
JUDGES:	Holmes and Muir JJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal against sentence is refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted on plea of guilty on one count of dangerous operation of a vehicle causing death with a circumstance of aggravation and sentenced to seven years imprisonment – where applicant also pleaded guilty to one count of dangerous operation of a motor vehicle whilst adversely affected by intoxicating substance, one count of assault occasioning bodily harm, one count of common assault and one count of wilful damage – where applicant received concurrent sentences for the latter offences – where applicant convicted of further summary offences for which he was not further punished – where applicant submitted mitigating factors should have reduced sentence – whether trial judge should have made a recommendation for eligibility for parole – whether sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 156(1), s 160C(5) R v Conquest & Attorney-General of Queensland [1995] QCA 567, cited R v Dingle [2003] QCA 7, cited R v Fripp [2003] QCA 4, cited R v Lennon [1999] QCA 192, cited R v McKinnon [1999] QCA 75, cited R v Wilde; ex parte A-G (Qld) (2002) 135 A Crim R 538; [2002] QCA 501, cited
COUNSEL:	D J Murray for the applicant S G Bain for the respondent
SOLICITORS:	Ian K Pilgrim Solicitors for the applicant Department of Public Prosecutions (Queensland) for the respondent