R v Cocaris - [2005] QCA 407

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cocaris [2005] QCA 407

PARTIES:

R
v
COCARIS, Katherine Nicole
(applicant/appellant)

FILE NO/S:

CA No 245 of 2005
DC No 2138 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

24 October 2005

JUDGES:

McMurdo P, Jerrard JA and Muir J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Grant the application for leave to appeal
2. Allow the appeal and order that the applicant be sentenced to two months imprisonment then released on probation with her consent for a period of 12 months under the supervision of an authorised Corrective Services Officer

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 – applicant convicted on her own pleas of guilty to dangerous operation of a motor vehicle whilst adversely affected by heroin and drug possession – applicant sentenced to 15 months imprisonment suspended after three months for an operational period of two years for the dangerous operation count – applicant not further punished for drug possession – applicant’s driver’s licence disqualified for two years – no prior criminal history – applicant had made efforts at rehabilitation prior to sentence – applicant aged 23 at time of offences – whether sentence manifestly excessive regarding length of actual imprisonment – whether appropriate sentence should combine imprisonment and probation

Penalties and Sentences Act 1992 (Qld), s 9

R v Bawden [2004] QCA 285; CA No 59 of 2004, 6 August 2004, considered
R v Fanning [2005] QCA 267; CA No 132 of 2005, 1 August 2005, considered
R v Neil [2001] QCA 41; CA No 363 of 2000, 15 February 2001, considered
R v Simpson [2001] QCA 109; CA No 309 of 2000, 21 March 2001, considered

COUNSEL:

P E Smith for the applicant/appellant
P F Rutledge for the respondent

SOLICITORS:

Howden Saggers Lawyers for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P:The relevant facts and issues are set out in the reasons for judgment of Jerrard JA so that I need only refer to them briefly in explaining my own reasons for agreeing with the orders proposed by Jerrard JA.

The maximum penalty for the offence of dangerous driving with the circumstance of aggravation that the offender was affected by an intoxicating substance is five years imprisonment. This was a serious example of that offence.

Ms Cocaris took heroin well-knowing that the drug would affect her capacity to drive carefully. She was a qualified practising social worker. Her conduct demonstrated a high degree of social irresponsibility but was consistent with a powerful heroin addiction. She drove dangerously in moderately busy traffic at 12.25 pm on Saturday, 11 September 2004 along Annerley Road near Fairfield…

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 Cocaris

Details

AGLC: R v Cocaris [2005] QCA 407
Case: [2005] QCA 407
Decision Date: 4 November 2005

CaseChat Overview and Summary

The applicant, in this case, was convicted on her own pleas of guilty to dangerous operation of a motor vehicle whilst adversely affected by heroin and drug possession. The case was heard in the Court of Appeal. The applicant had made efforts at rehabilitation prior to sentence, and there was no prior criminal history. At the time of the offences, the applicant was 23 years old. The applicant was sentenced to 15 months imprisonment, suspended after three months, for an operational period of two years for the dangerous operation count. The applicant was not further punished for drug possession and her driver’s licence was disqualified for two years.

The legal issues the court was required to decide were whether the sentence was manifestly excessive regarding the length of actual imprisonment, and whether the appropriate sentence should combine imprisonment and probation. The court was asked to consider whether the sentence was disproportionate to the crime committed and whether there was an alternative sentence that would better serve the interests of justice.

The court found that the sentence was manifestly excessive regarding the length of actual imprisonment. The court noted that the applicant had made efforts at rehabilitation prior to sentence and had no prior criminal history. The court also noted that the applicant was 23 years old at the time of the offences. The court found that an appropriate sentence should combine imprisonment and probation, and ordered that the applicant be sentenced to two months imprisonment, then released on probation with her consent for a period of 12 months under the supervision of an authorised Corrective Services Officer. The court allowed the appeal and made the necessary orders.

Orders

Orders of the court

1. Grant the application for leave to appeal

2. Allow the appeal and order that the applicant be sentenced to two months imprisonment then released on probation with her consent for a period of 12 months under the supervision of an authorised Corrective Services Officer

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 Cocaris [2005] QCA 407
PARTIES:	R v COCARIS, Katherine Nicole (applicant/appellant)
FILE NO/S:	CA No 245 of 2005 DC No 2138 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	4 November 2005
DELIVERED AT:	Brisbane
HEARING DATE:	24 October 2005
JUDGES:	McMurdo P, Jerrard JA and Muir J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant the application for leave to appeal 2. Allow the appeal and order that the applicant be sentenced to two months imprisonment then released on probation with her consent for a period of 12 months under the supervision of an authorised Corrective Services Officer
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 – applicant convicted on her own pleas of guilty to dangerous operation of a motor vehicle whilst adversely affected by heroin and drug possession – applicant sentenced to 15 months imprisonment suspended after three months for an operational period of two years for the dangerous operation count – applicant not further punished for drug possession – applicant’s driver’s licence disqualified for two years – no prior criminal history – applicant had made efforts at rehabilitation prior to sentence – applicant aged 23 at time of offences – whether sentence manifestly excessive regarding length of actual imprisonment – whether appropriate sentence should combine imprisonment and probation Penalties and Sentences Act 1992 (Qld), s 9 R v Bawden [2004] QCA 285; CA No 59 of 2004, 6 August 2004, considered R v Fanning [2005] QCA 267; CA No 132 of 2005, 1 August 2005, considered R v Neil [2001] QCA 41; CA No 363 of 2000, 15 February 2001, considered R v Simpson [2001] QCA 109; CA No 309 of 2000, 21 March 2001, considered
COUNSEL:	P E Smith for the applicant/appellant P F Rutledge for the respondent
SOLICITORS:	Howden Saggers Lawyers for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent