R v Dingle - [2003] QCA 7

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dingle [2003] QCA 7

PARTIES:

R
v
DINGLE, Paul Richard
(applicant)

FILE NO/S:

CA No 267 of 2002
DC No 74 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Bundaberg

DELIVERED EX TEMPORE ON:

31 January 2003

DELIVERED AT:

Brisbane

HEARING DATE:

31 January 2003

JUDGES:

McMurdo P, Williams JA and Cullinane J
Separate reasons for judgment of each member of the Court; each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CHARACTER OF OFFENCE – DRIVING OFFENCES – where applicant convicted of dangerous operation of a motor vehicle causing death whilst adversely affected by alcohol – where lack of remorse shown – whether sentence imposed was manifestly excessive

R v Lennon [1999] QCA 192; CA No 26 of 1999, 26 May 1999, considered
R v McKinnon [1999] QCA 75; CA No 356 of 1998, 17 March 1999, considered

COUNSEL:

The applicant appeared on his own behalf
M R Byrne for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: Justice Williams will deliver his reasons first.

WILLIAMS JA: This is an application for leave to appeal against sentence imposed after the applicant was convicted by the jury of the offence of dangerous operation of a motor vehicle causing death whilst adversely affected by alcohol. The sentence in fact imposed was imprisonment for six years. Because the level of alcohol was .19, pursuant to section 328A of the Criminal Code the maximum penalty was 14 years imprisonment.

The applicant has appeared in person in support of the application and most of the matters that he has raised, both in his brief written outline and orally, tend to go to the issue of conviction rather than the severity of the penalty. I should say that the Court has perused briefly the parts of the transcript, including the photographic exhibits, about which some complaint has been made.

It seems that the case against the applicant was an overwhelming one. There is nothing in the photographic evidence to cause this Court any concern. The evidence establishes that the applicant had been drinking at the Queensland Hotel in Bundaberg until about 12.30 a.m. on 3 July 2001. He then drove his motor vehicle some six or seven kilometres before turning into Kendall's Road. At that point his vehicle collided with a cyclist. The applicant conceded in this Court that he did not see the cyclist at all prior to the collision. The investigation by the police indicated that the cyclist was struck approximately 95 centimetres from the lane edge. The bicycle was fitted with front and rear lights and also had various reflectors affixed to it.

The incident occurred at approximately 12.49 a.m. and it was at 1.22 a.m.…

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 Dingle

Details

AGLC: R v Dingle [2003] QCA 7
Case: [2003] QCA 7
Decision Date: 31 January 2003

CaseChat Overview and Summary

In the case of R v Dingle, the applicant was convicted of dangerous operation of a motor vehicle causing death while adversely affected by alcohol. The applicant sought leave to appeal against the sentence imposed by the trial court, arguing that the sentence was manifestly excessive. The court was required to determine whether the sentence was appropriate in the circumstances of the case, taking into account factors such as the character of the offence, the applicant's lack of remorse, and the impact of alcohol on the incident. The court held that the sentence imposed was not manifestly excessive and dismissed the application for leave to appeal. The trial judge had considered all relevant factors and had exercised their discretion appropriately in determining the sentence.

The court considered the gravity of the offence, which involved the death of a person and was aggravated by the applicant's intoxication. The court also noted the applicant's lack of remorse, which was a significant factor in the sentencing decision. The court held that the trial judge had appropriately taken into account all relevant factors and had exercised their discretion in a manner that was not manifestly excessive. The court found that the sentence imposed was commensurate with the seriousness of the offence and the culpability of the applicant.

The court also considered the impact of alcohol on the incident and held that this was a relevant factor in determining the sentence. The court found that the trial judge had appropriately considered the impact of alcohol on the incident and had taken this into account in determining the sentence. The court held that the sentence imposed was not manifestly excessive and dismissed the application for leave to appeal.

The court dismissed the application for leave to appeal against the sentence imposed by the trial court. The court held that the sentence imposed was appropriate in the circumstances of the case, taking into account all relevant factors, including the character of the offence, the applicant's lack of remorse, and the impact of alcohol on the incident. The court found that the trial judge had exercised their discretion appropriately in determining the sentence and that the sentence imposed was commensurate with the seriousness of the offence and the culpability of the applicant.

Orders

Orders of the court

Application for leave to appeal against sentence refused

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 Dingle [2003] QCA 7
PARTIES:	R v DINGLE, Paul Richard (applicant)
FILE NO/S:	CA No 267 of 2002 DC No 74 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Bundaberg
DELIVERED EX TEMPORE ON:	31 January 2003
DELIVERED AT:	Brisbane
HEARING DATE:	31 January 2003
JUDGES:	McMurdo P, Williams JA and Cullinane J Separate reasons for judgment of each member of the Court; each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CHARACTER OF OFFENCE – DRIVING OFFENCES – where applicant convicted of dangerous operation of a motor vehicle causing death whilst adversely affected by alcohol – where lack of remorse shown – whether sentence imposed was manifestly excessive R v Lennon [1999] QCA 192; CA No 26 of 1999, 26 May 1999, considered R v McKinnon [1999] QCA 75; CA No 356 of 1998, 17 March 1999, considered
COUNSEL:	The applicant appeared on his own behalf M R Byrne for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent