R v Danter - [2016] QCA 94

SUPREME COURT OF QUEENSLAND

CITATION:

R v Danter [2016] QCA 94

PARTIES:

R
v
DANTER, Helen Marie
(applicant)

FILE NO/S:

CA No 192 of 2015
DC No 250 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport – Date of Sentence: 20 August 2015

DELIVERED ON:

15 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

18 March 2016

JUDGES:

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

ORDERS:

1.   The application for leave to appeal is granted.

2.   The appeal is allowed.

3.   The sentence imposed is varied to the extent that it is wholly suspended.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was convicted of one count of dangerous operation of a vehicle causing grievous bodily harm – where the applicant was sentenced to three years imprisonment with a parole release date after 12 months of that term had been served – whether the sentencing judge erred in failing to characterise the case as one of momentary inattention – whether the sentence was manifestly excessive – whether the sentencing judge erred in imposing a sentence with a period of actual custody

R v Allen[2012] QCA 259, cited
R v Conquest; ex parte Attorney-General[1995] QCA 567, cited
R v Hall, unreported, District Court of Queensland, Newton DCJ, DC No 328 of 2011, 22 December 2011, cited
R v Harris; ex parte Attorney-General[1999] QCA 392, cited
R v Iaria[2008] QCA 396, considered
R v MacDonald[2014] QCA 9, considered
R v McGuigan[2004] QCA 381, considered
R v Nona, unreported, District Court of Queensland, Harrison DCJ, DC No 2847 of 2014, 26 November 2014, cited
R v Proesser[2007] QCA 61, considered
R v Towers[2009] QCA 159, considered
R v Wakefield (2008) 187 A Crim R 514; [2008] QCA 269, considered

COUNSEL:

C J Rosser for the applicant
M B Lehane for the respondent

SOLICITORS:

No appearance for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: I agree with Philippides JA’s reasons for granting this application for leave to appeal, allowing the appeal and varying the sentence by wholly suspending it.
PHILIPPIDES JA: The applicant was convicted on her plea on 16 July 2015 of one count of dangerous operation of a vehicle causing grievous bodily harm. The applicant was sentenced on 20 August 2015[1] to three years imprisonment with a parole release date after 12 months of that term had been served, namely 19 August 2016. In addition, she was disqualified absolutely from holding or obtaining a driver’s licence.
[1]The hearing of the sentence was stood down on 16 July 2015 part heard and adjourned until 20 August 2015 so that additional medical reports could be obtained.
The applicant…

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 Danter

Details

AGLC: R v Danter [2016] QCA 94
Case: [2016] QCA 94
Decision Date: 15 April 2016

CaseChat Overview and Summary

The case of R v Danter involved an appeal against the sentence imposed by the sentencing judge. The applicant was convicted of dangerous operation of a vehicle causing grievous bodily harm and was sentenced to three years imprisonment with a parole release date after 12 months had been served. The applicant argued that the sentencing judge had erred in several respects, including by not characterising the case as one of momentary inattention, and by imposing a sentence that was manifestly excessive. The applicant also contended that the sentencing judge had erred by imposing a sentence with a period of actual custody.

The legal issues before the court were whether the sentencing judge had erred in failing to characterise the case as one of momentary inattention, whether the sentence was manifestly excessive, and whether the sentencing judge had erred in imposing a sentence with a period of actual custody. The court considered a number of comparable cases to assist in determining these issues. The court found that the sentencing judge had placed too much emphasis on the need for deterrence, and that the case did not involve an offender with a bad driving history. The court also found that the sentence was manifestly excessive and that a wholly suspended sentence was appropriate.

The court allowed the appeal and varied the sentence to be wholly suspended. The court found that the sentencing judge had erred in imposing a sentence with a period of actual custody, and that a wholly suspended sentence was appropriate given the circumstances of the case. The applicant's application for leave to appeal was granted and the appeal was allowed.

Orders

Orders of the court

1. The application for leave to appeal is granted.

2. The appeal is allowed.

3. The sentence imposed is varied to the extent that it is wholly suspended.

Background

Background to the litigation

After filing the application for leave to appeal against sentence, the applicant applied for, and was granted, appeal bail on 26 August 2015.BackgroundCircumstances of the offending The sentence proceeded on the basis of an agreed schedule of facts. The 13 year old complainant and her twin sister were waiting at the pedestrian crossing on Bayview Street, Hollywell on the Gold Coast. They were riding bikes and had on bike helmets. Bayview Street is a two lane road, with one lane that runs in a northbound direction and the other lane running in a southern direction. The speed limit was 60 km/h. The weather was fine and the road was in good condition. The crossing has a large pedestrian refuge traffic island in the centre of the road. There is also a traffic island on the east side of the road, and a traffic island on the west side of the road. There are bicycle paths to the left of the road on both the northbound and southbound lanes. Further to the left of the bicycle paths are parking lanes on both the northbound and southbound lanes. The applicant was travelling along Bayview Street in a northbound direction. The two cars in front of the applicant had stopped at the crossing for the sisters. The two vehicles behind the applicant had also slowed in anticipation of stopping. Both of those drivers had also seen the girls waiting to cross. The first vehicle was a van. The second was a ute, which had a dashboard camera that recorded the events. The young complainant, seeing that both sides of the crossing had stopped, started riding across the road, with her sister riding in front of her. This was able to be seen on camera footage. It also showed that the applicant pulled out from behind two vehicles which were stopped in front of her and went over to the left side of those vehicles. She swerved to avoid the traffic island that was on the left hand side and then drove across the crossing. She almost hit the complainant’s sister who had nearly crossed the northbound side of the crossing. The complainant was in the middle of the crossing. The applicant swerved right but hit the complainant who was thrown into the air, hitting the bonnet of the car, and then landing under the front wheels of the applicant’s vehicle. She was dragged for about 10 metres. The applicant’s vehicle ended up on the wrong side of the road, before she corrected the situation and eventually stopped. The applicant remained at the scene until the police arrived. She was breathalysed and returned a reading of 0.00. When speaking to the police the applicant said that she had noticed that the cars were slowing at the crossing and that she put her foot on the brakes but they did not work. She kept trying to slam on the brakes but her car “wouldn’t stop”. She believed her vehicle’s faulty brakes were responsible for the collision. It was because of the difficulties with her brakes, that she pulled into the parking lane and ultimately hit the child. She also told police that she had a “scrape on [her] right foot where it got caught under the brake pedal”. Several months later, when interviewed by the police, on 20 February 2014, the applicant maintained that the car’s brakes had failed.

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

It was contended that the sentencing judge placed too much emphasis on the need for deterrence. This was not a case where given an offender’s bad driving history, personal deterrence featured largely. In making that submission, reliance was placed on the observations of the President in R v Allen:[8]“The extent to which requiring this applicant to serve a ... period of actual custody would alter the driving habits of others, and thereby advance general deterrence is uncertain … [G]eneral deterrence has less of a role to play ... than ‘in cases involving alcohol, speed, fatigue or a lengthy period of reckless driving’.”[8][2014] QCA 9 at [99] per Fraser and Morrison JJA.Consideration of comparable cases At sentence, the appellant had relied on two single judge decisions of the District Court, R v Hall[9] and R v Nona.[10]Before this Court, the authorities of R v McGuigan,[11] R v Proesser,[12] R v Wakefield,[13] R v Iaria,[14] R v Towers,[15] and R v MacDonald[16] were referred to by counsel. I turn to deal with the comparatives in chronological order.[9](Unreported, District Court of Queensland, 22 December 2011, Newton DCJ).[10](Unreported, District Court of Queensland, 26 November 2014, Harrison DCJ).[11][2004] QCA 381.[12][2007] QCA 61.[13][2008] QCA 269.[14][2008] QCA 396.[15][2009] QCA 159.[16][2014] QCA 9.McGuigan McGuigan concerned a plea to one count of dangerous operation of a vehicle causing grievous bodily harm with a circumstance of aggravation (the applicant having twice previously been convicted of offences of driving under the influence of liquor) in which case imprisonment was mandatory. That applicant had a serious traffic history, including the two driving under the influence of liquor offences. The applicant had failed to stop on a dual lane road at a pedestrian crossing, although there was already a vehicle stopped in the other lane. An elderly pedestrian was struck and seriously injured with the result that he required long term rehabilitation and was unlikely to be able to live independently as he had previously done. The applicant had accelerated away from the scene, although without proven knowledge that he had injured the complainant. He was found early the following day in his vehicle with a blood alcohol content then of 0.2 per cent. However, he was not sentenced on the basis that alcohol was an aggravating factor, having left the scene of the accident, he was not able to be blood tested at the time. He denied involvement and gave a false alibi when initially spoken to, although he subsequently made admissions and entered a plea of guilty. On appeal, the sentence imposed of five years imprisonment with a recommendation for parole after 20 months was found to be manifestly excessive and was reduced to three and a half years imprisonment with a recommendation for parole after 18 months.Proesser Proesser concerned a plea to dangerous operation of a vehicle causing grievous bodily harm for a sentence of 18 months imprisonment suspended after three months for an operational period of 18 months and disqualified from holding a licence for three years. Proesser was driving on a major arterial road at 70 km/h in a car with which he was not familiar. He looked down to adjust the radio and when he looked back up he saw that the traffic lights in front had turned amber and that the car in front of his was stopped at the intersection. In an attempt to avoid a rear-end collision with that vehicle, he applied the brakes and swerved his vehicle into the adjacent left turning lane. His vehicle then skidded and hit the complainant who was on a pedestrian crossing on that lane. The complainant sustained serious injuries requiring hospitalisation for four weeks. Proesser, who was 28 had a minor criminal history of no relevance and some history of traffic infringements. He had recently completed his university degree and had a good record of community service. He entered an early plea, remained at the scene and offered assistance, and was remorseful. In allowing the appeal by suspending the sentence immediately, Jerrard JA referred to previous statements of this Court to the effect that where alcohol was not involved, there was no excessive speed and the dangerous driving was the result of a short period of inattention, a custodial sentence was not inevitable. Jerrard JA observed that:[17]“The applicant’s apparently brief period of inattention when driving, generally good previous character and conduct and his distress at what he had done make that sentence of actual imprisonment in those circumstances an unnecessarily hard one. The general circumstances point, in my opinion, to a non custodial sentence being appropriate in this matter.”[17][2007] QCA 61 at 7 (Keane JA and Muir J agreeing).Wakefield

CITATION:	R v Danter [2016] QCA 94
PARTIES:	R v DANTER, Helen Marie (applicant)
FILE NO/S:	CA No 192 of 2015 DC No 250 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport – Date of Sentence: 20 August 2015
DELIVERED ON:	15 April 2016
DELIVERED AT:	Brisbane
HEARING DATE:	18 March 2016
JUDGES:	Margaret McMurdo P and Philippides JA and Burns J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal is granted. 2. The appeal is allowed. 3. The sentence imposed is varied to the extent that it is wholly suspended.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was convicted of one count of dangerous operation of a vehicle causing grievous bodily harm – where the applicant was sentenced to three years imprisonment with a parole release date after 12 months of that term had been served – whether the sentencing judge erred in failing to characterise the case as one of momentary inattention – whether the sentence was manifestly excessive – whether the sentencing judge erred in imposing a sentence with a period of actual custody R v Allen[2012] QCA 259, cited R v Conquest; ex parte Attorney-General[1995] QCA 567, cited R v Hall, unreported, District Court of Queensland, Newton DCJ, DC No 328 of 2011, 22 December 2011, cited R v Harris; ex parte Attorney-General[1999] QCA 392, cited R v Iaria[2008] QCA 396, considered R v MacDonald[2014] QCA 9, considered R v McGuigan[2004] QCA 381, considered R v Nona, unreported, District Court of Queensland, Harrison DCJ, DC No 2847 of 2014, 26 November 2014, cited R v Proesser[2007] QCA 61, considered R v Towers[2009] QCA 159, considered R v Wakefield (2008) 187 A Crim R 514; [2008] QCA 269, considered
COUNSEL:	C J Rosser for the applicant M B Lehane for the respondent
SOLICITORS:	No appearance for the applicant Director of Public Prosecutions (Queensland) for the respondent