R v Chmieluk; Ex parte

Case [2018] QCA 271

SUPREME COURT OF QUEENSLAND

CITATION:

R v Chmieluk; Ex parte Attorney-General (Qld) [2018] QCA 271

PARTIES:

R
v
CHMIELUK, Candice Lee
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 164 of 2018
DC No 27 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Attorney-General (Qld)

ORIGINATING COURT:

District Court at Southport – Date of Sentence: 28 May 2018 (Kent QC DCJ)

DELIVERED ON:

Date of Order: 1 August 2018
Date of Publication of Reasons: 16 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

1 August 2018

JUDGES:

Sofronoff P and Henry and Bond JJ

ORDER:

Order delivered 1 August 2018:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent pleaded guilty to one count of dangerous operation of a vehicle causing death while adversely affected by an intoxicating substance – where the respondent was sentenced to five years imprisonment to be suspended after three months with an operational period of five years – where the respondent caused the death of her sister after crashing a vehicle, whilst under the influence of alcohol, in which her sister was an occupant – where the respondent had a lengthy history of traffic infringements – where the respondent demonstrated genuine insight into her offending and had made substantial efforts at rehabilitation between the time of offending and sentence – where the killing of her sister had a significant effect on the respondent – where the appellant submits that the sentence imposed on the respondent is manifestly inadequate – where the appellant’s submission is primarily directed toward considerations of general deterrence, denunciation and comparison with previous sentences in cases of this kind – whether the lenience afforded to the respondent by the learned sentencing judge was not in the public interest, such that the sentence is manifestly inadequate and a more severe penalty ought to have been imposed

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, applied
R v Blackaby [2010] QCA 84, discussed
R v Chong; Ex parte Attorney-General (Qld) (2008) 181 A Crim R 200; [2008] QCA 22, cited
R v Conquest; Ex parte Attorney-General (Qld)[1995] QCA 567, discussed
R v Etheridge[2016] QCA 241, discussed
R v Hannigan [2009] 2 Qd R 331; (2009) 193 A Crim R 399; [2009] QCA 40, cited
R v Hoad[2005] QCA 92, discussed
R v Hook[2006] QCA 458, cited
R v L; Ex parte Attorney-General (Qld) [1996] 2 Qd R 63; [1995] QCA 444, cited
R v Murphy[2003] QCA 128, discussed
R v Osborne[2014] QCA 291, discussed
R v Osenkowski (1982) 30 SASR 212, cited
R v Phillips & Woolgrove (2008) 188 A Crim R 133; [2008] QCA 284, cited
R v Purcell[2017] QCA 111, discussed
R v Thomas[2015] QCA 20, discussed

COUNSEL:

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Details
AGLC
R v Chmieluk; Ex parte [2018] QCA 271
Case
[2018] QCA 271
Decision Date

CaseChat Overview and Summary

The appellant sought an appeal against the sentence of the respondent who had pleaded guilty to one count of dangerous operation of a vehicle causing death while adversely affected by an intoxicating substance. The respondent was sentenced to five years imprisonment to be suspended after three months with an operational period of five years. The respondent caused the death of her sister after crashing a vehicle, whilst under the influence of alcohol, in which her sister was an occupant. The respondent had a lengthy history of traffic infringements but had demonstrated genuine insight into her offending and had made substantial efforts at rehabilitation between the time of the offence and sentence. The killing of her sister had a significant effect on the respondent.

The central issue for the court was whether the lenience afforded to the respondent by the sentencing judge was not in the public interest, such that the sentence was manifestly inadequate and a more severe penalty ought to have been imposed. The court examined the appellant's submission that the sentence was primarily driven by considerations of general deterrence, denunciation and comparison with previous sentences in cases of this kind. The court found that while general deterrence and denunciation were relevant considerations, they were not determinative of the appropriate sentence in this case. The court also considered the respondent's history of offending, her genuine insight into her offending, and her efforts at rehabilitation. The court held that the sentence imposed was not manifestly inadequate and was in the public interest.

The court dismissed the appeal against the sentence, finding that the sentence imposed was appropriate and not manifestly inadequate. The court acknowledged the tragic nature of the incident and the significant effect it had on the respondent but held that the sentence reflected the relevant considerations and was not an abuse of the court's discretion.

No further orders were made by the court.

Orders

Orders of the court

Order delivered 1 August 2018:

Appeal 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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