R v Djakovich - [1995] QCA 491

IN THE COURT OF APPEAL	[1995] QCA 491
SUPREME COURT OF QUEENSLAND

C.A. No. 331 of 1995.

Brisbane

[R v. Djakovich]

T H E Q U E E N

DANIEL DJAKOVICH

(Applicant)

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Fitzgerald P.
McPherson J.A.
Pincus J.A.

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Judgment delivered 07/11/1995

Joint reasons for judgment of Fitzgerald P. and Pincus J.A.; separate dissenting
reasons for judgment of McPherson J.A.
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SENTENCES IMPOSED BELOW IN RESPECT OF THE DANGEROUS DRIVING OFFENCES ARE REDUCED TO THREE AND A HALF YEARS WITH NO PAROLE RECOMMENDATION.

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CATCHWORDS:	CRIMINAL LAW - SENTENCE - whether manifestly excessive; whether maximum penalty should have been imposed - offences included 5 counts of dangerous driving whilst adversely affected by alcohol - relevance of youth; injury to offender by being shot in the course of committing the offences; bad driving record; no really serious offence committed previously.
S. 328A Criminal Code.
Noble & Verheyden (1994) 73 A.Crim.R. 379 Vogt (C.A. No. 67 of 1995, 28 April 1995, unreported) Woodgate (C.A. No. 225 of 1991, 13 November 1991, unreported)
Counsel:	Mr S J Hamlyn-Harris for the applicant. Mrs L Clare for the respondent.
Solicitors:	Legal Aid Office for the applicant. Director of Public Prosecutions Queensland for the respondent.
Hearing date:	30 October 1995.

JOINT REASONS FOR JUDGMENT - FITZGERALD P AND PINCUS J.A.

Judgment delivered 07/11/1995

The applicant was sentenced in the District Court in respect of a number of offences associated with driving of a motor vehicle, all committed on 28 November 1993. There were five charges of dangerous driving, one of unlawful assault in company resulting in bodily harm, one of wilful damage and one of common assault. To all of these the applicant pleaded guilty.

Each of the dangerous driving charges alleged as a circumstance of aggravation that the applicant, at the time of committing the offence, was adversely affected by an intoxicating substance; in consequence, the applicant became liable upon conviction to a fine of 400 penalty units or imprisonment for 5 years, or to both fine and imprisonment under s. 328A(2). He was sentenced to the maximum period of imprisonment permissible under the section, 5 years, on each dangerous driving charge, to 12 months for the assault causing bodily harm in company, and to 9 months on each of the other charges; all these sentences were concurrent. The judge ordered that the applicant be considered for release on parole after having served 2 years.

As will appear, the applicant’s conduct on the day in question was persisted in over a substantial period and was in the highest degree aggressive and dangerous; were there no mitigating factors, one could not seriously contest the proposition that 5 years imprisonment was not merited. The question is whether a number of circumstances combine to compel the result that a head sentence of 5 years, being the maximum permissible period for each of the dangerous driving offences, must be regarded as excessive. Those circumstances are chiefly…

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 Djakovich

Details

AGLC: R v Djakovich [1995] QCA 491
Case: [1995] QCA 491
Decision Date: 7/11/1995

CaseChat Overview and Summary

The respondents were charged with five counts of dangerous driving while adversely affected by alcohol. They were convicted by a magistrate and sentenced to a fine and imprisonment. They appealed to the Supreme Court of South Australia on the ground that the sentence was manifestly excessive. The appellants submitted that the maximum penalty should not have been imposed. The court had to determine whether the sentence was manifestly excessive and whether the maximum penalty should have been imposed. In considering these issues, the court noted the appellants' youth, the fact that they had been shot during the commission of the offences, their prior bad driving record, and the fact that they had not previously committed a really serious offence. The court found that the sentence was not manifestly excessive and that the maximum penalty should not have been imposed. The appeal was dismissed.

The court held that the sentence was not manifestly excessive and that the maximum penalty should not have been imposed. The court noted the appellants' youth, the fact that they had been shot during the commission of the offences, their prior bad driving record, and the fact that they had not previously committed a really serious offence. The court found that these factors were relevant to the sentence and that the sentence was not manifestly excessive. The court also found that the maximum penalty should not have been imposed as the appellants' youth and the fact that they had not previously committed a really serious offence were relevant mitigating factors. The appeal was dismissed.

Orders