CA No 145 of 2005 DC No 303 of 2004 DC No 305 of 2004
DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Beenleigh
DELIVERED EX TEMPORE ON:
29 August 2005
DELIVERED AT:
Brisbane
HEARING DATE:
29 August 2005
JUDGES:
Jerrard and Keane JJA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:
1. Application for leave to appeal against sentence granted
2. Appeal allowed
3. Period of disqualification from holding or obtaining a driver's licence be varied to a period of 14 1/2 months from 18 February 2005
CATCHWORDS:
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES - where the applicant was sentenced to nine months imprisonment, suspended immediately, for an operational period of two years and was disqualified from holding a driver's licence for three years - where counsel for the prosecution and the defence had agreed that the court ought to consider a sentence of six months imprisonment wholly suspended for a period of 12 to 18 months - where neither side was given an opportunity to be heard as to whether or not a period of disqualification from holding a driver's licence should also be imposed - whether this breach of natural justice provided sufficient grounds for the Court of Appeal to exercise the sentencing discretion afresh
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 - PARTICULAR OFFENCES - OTHER OFFENCES - where the applicant pleaded guilty to one count of assault occasioning bodily harm, one count of wilful damage to a motor vehicle and another count of assault occasioning bodily harm in company - where it was submitted that a disqualification from holding a driver's licence for three years was excessive - where it appeared that the applicant used motor vehicles as a medium for manifesting a tendency towards personal violence - whether or not the period of disqualification that had been imposed was manifestly excessive in the circumstances
TRAFFIC LAW - LICENSING OF DRIVERS - QUEENSLAND - DISQUALIFICATION, CANCELLATION AND SUSPENSION OF LICENSES - where s 187 Penalties and Sentences Act1992 (Qld) allows a person to be disqualified from holding a driver's licence in addition to any sentence otherwise imposed - whether a disqualification imposed pursuant to this section must run from the date of conviction or from the date of sentence
[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.
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Details
AGLC
R v Cunningham [2005] QCA 321
Case
[2005] QCA 321
Decision Date
CaseChat Overview and Summary
The case of R v Cunningham involved an appeal against the sentence handed down by the lower court. The applicant was sentenced to nine months imprisonment, suspended immediately, for an operational period of two years, and was also disqualified from holding a driver's licence for three years. The applicant had pleaded guilty to various charges, including assault occasioning bodily harm and wilful damage to a motor vehicle. Both counsel for the prosecution and the defence had agreed that the court ought to consider a sentence of six months imprisonment wholly suspended for a period of 12 to 18 months. However, neither side was given an opportunity to be heard as to whether or not a period of disqualification from holding a driver's licence should also be imposed.
The central legal issues were whether the breach of natural justice, which resulted from the court not giving either party an opportunity to be heard on the disqualification period, provided sufficient grounds for the Court of Appeal to exercise its sentencing discretion afresh, and whether the period of disqualification imposed was manifestly excessive in the circumstances. The Court of Appeal had to consider whether the disqualification period should run from the date of conviction or from the date of sentence, and whether the disqualification period was appropriate given the applicant's tendency towards personal violence.
In its reasoning, the Court of Appeal held that the breach of natural justice did provide sufficient grounds for the Court to exercise its sentencing discretion afresh. The Court also found that the period of disqualification was manifestly excessive in the circumstances. The Court of Appeal allowed the appeal and varied the period of disqualification from holding or obtaining a driver's licence to a period of 14 1/2 months from 18 February 2005. The Court also granted the applicant leave to appeal against the sentence and allowed the appeal.
Orders
Orders of the court
1. Application for leave to appeal against sentence granted
2. Appeal allowed
3. Period of disqualification from holding or obtaining a driver's licence be varied to a period of 14 1/2 months from 18 February 2005