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R v Etheridge

R v Etheridge

Case [2016] QCA 241 23 September 2016

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Etheridge [2016] QCA 241

PARTIES:

R
v
ETHERIDGE, Noa Ronnie
(applicant)

FILE NO/S:

CA No 277 of 2015
DC No 156 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Rockhampton – Date of Sentence: 15 October 2015

DELIVERED ON:

23 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2016

JUDGES:

Morrison JA and North and Henry JJ
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.   Set aside the orders made on 15 October 2015 in so far as it was ordered that the offender be imprisoned for a period of six years, and that the date the offender is eligible for parole be fixed at 14 October 2017.

4.   Order in lieu thereof, the offender be imprisoned for a period of five years, and that the offender be released on parole on 15 June 2017.

5.   Otherwise confirm the orders made on 15 October 2015.

Order delivered ex tempore on 23 September 2016:

In respect of order 4, delete “the offender be released on parole”; and order in lieu thereof “the offender be imprisoned for a period of five years, and that the date the offender is eligible for parole be fixed at 15 June 2017.”

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to charges of dangerous operation of a vehicle causing death – where the applicant was sentenced to six years imprisonment, with parole eligibility set at two years – where the applicant was also disqualified from holding or obtaining a driver’s licence for five years – where the applicant went to a social event with friends and consumed alcohol and cannabis – where the applicant left the event, with his friends who were also inebriated and who nominated him as the designated driver – where the applicant drove the car at night and struck a man, who later died of the injuries – where the applicant did not stop the vehicle and did not allow another passenger to call emergency services – where the applicant was a disqualified driver at the time – where the applicant had a history of traffic offences – where the applicant contends that the sentence was manifestly excessive having regard to other cases of similar circumstances – whether the sentence was manifestly excessive

R v Blanch[2008] QCA 253, cited
R v Coutts[2016] QCA 206, cited
R v Grabovica[2012] QCA 180, considered
R v Maher[2012] QCA 7, considered
R v Nikora[2014] QCA 192, considered
R v Ruka[2009] QCA 113, considered
R v Schoner[2015] QCA 190, considered
R v Vance, ex parte Attorney-General (Qld)[2007] QCA 269, considered
R v…

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 Etheridge

Details

AGLC: R v Etheridge [2016] QCA 241
Case: [2016] QCA 241
Decision Date: 23 September 2016

CaseChat Overview and Summary

In this case, the appellant, Etheridge, appealed against the sentence imposed upon him by the lower court. Etheridge had pleaded guilty to dangerous operation of a vehicle causing death, and was sentenced to six years imprisonment, with parole eligibility set at two years. He was also disqualified from holding or obtaining a driver’s licence for five years. The appellant consumed alcohol and cannabis at a social event, and left with his friends who were also inebriated. Etheridge drove the car at night and struck a man, who later died of the injuries. The appellant did not stop the vehicle and did not allow another passenger to call emergency services. Etheridge was a disqualified driver at the time and had a history of traffic offences. The appellant contended that the sentence was manifestly excessive having regard to other cases of similar circumstances.

The legal issue in this case was whether the sentence imposed was manifestly excessive. The court examined the circumstances of the offence, the appellant's criminal history, and compared the sentence with other cases of similar circumstances. The court also considered the principles of sentencing, such as deterrence, retribution, and rehabilitation, and the need to maintain public confidence in the criminal justice system. The court found that the sentence was manifestly excessive and granted leave to appeal and varied the sentence imposed.

The court held that the sentence was manifestly excessive as it did not take into account the appellant's guilty plea and his remorse, and did not adequately reflect the gravity of the offence. The court noted that the appellant had no previous convictions for dangerous driving, and that the sentence was harsher than those imposed in similar cases. The court also considered the appellant's background, including his employment and family responsibilities, and concluded that a shorter sentence would be appropriate. The court varied the sentence to five years imprisonment, with parole eligibility fixed at 15 June 2017. The court confirmed the other orders made on 15 October 2015.

Orders

Orders of the court

1. The application for leave to appeal is granted.

2. The appeal is allowed.

3. Set aside the orders made on 15 October 2015 in so far as it was ordered that the offender be imprisoned for a period of six years, and that the date the offender is eligible for parole be fixed at 14 October 2017.

4. Order in lieu thereof, the offender be imprisoned for a period of five years, and that the offender be released on parole on 15 June 2017.

5. Otherwise confirm the orders made on 15 October 2015.

Order delivered ex tempore on 23 September 2016:

In respect of order 4, delete “the offender be released on parole”; and order in lieu thereof “the offender be imprisoned for a period of five years, and that the date the offender is eligible for parole be fixed at 15 June 2017.”

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

No other aspect of the sentencing orders were challenged.Conclusion For the reasons expressed above, I would grant leave to appeal and vary the sentence imposed. I propose the following orders:1.The application for leave to appeal is granted.2.The appeal is allowed.3.Set aside the orders made on 15 October 2015 in so far as it was ordered that the offender be imprisoned for a period of six years, and that the date the offender is eligible for parole be fixed at 14 October 2017.4.Order in lieu thereof, the offender be imprisoned for a period of five years, and that the offender be released on parole on 15 June 2017.5.Otherwise confirm the orders made on 15 October 2015. NORTH J: I have read the reasons of Morrison JA. I agree with those reasons and the orders proposed. HENRY J: I have read the reasons of Morrison JA. I agree with those reasons and the orders proposed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

R v Etheridge [2016] QCA 241

Most Recent Citation

R v Burnett-Greenland [2017] QCA 159

Cases Citing This Decision

R v Russell [2021] QCA 35
Citation 1 (Para 8)

…the application is whether the sentencing judge misapplied the totality principle. [2]See R v Coutts [2016] QCA 206 at [4] – [5] and R v Etheridge [2016] QCA 241 at [41], [52].…
R v Chmieluk; Ex parte [2018] QCA 271
Citation 2 (Para 9)

…the period of actual imprisonment imposed one of less than nine months.[8] [8] R v Blackaby [2010] QCA 84; R v Purcell [2017] QCA 111; R v Etheridge [2016] QCA 241; R v Thomas [2015] QCA 20; R v Hoad [2005] QCA 92; R v Murphy [2003] QCA 128.…
R v Burnett-Greenland [2017] QCA 159
Citation 3 (Para 6)

…aving the scene before police arrived and later that night disclaiming knowledge of the crash were aggravating circumstances. [6]c.f. R v Etheridge [2016] QCA 241.…

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Cases Cited

R v Coutts [2016] QCA 206
Citation 1 (Para 6)

…took into account extraneous or irrelevant matters, mistook the facts, or failed to take into account a material consideration.[27] [27] R v Coutts [2016] QCA 206, at [4]. The consequences…
R v Schoner [2015] QCA 190
Citation 2 (Para 31)

…harm. The offender was 37 years old at the offence, and 38 at sentence. She was sentenced to five years imprisonment, suspended after two years. [40][2015] QCA 190.…
R v Osborne [2014] QCA 291
Citation 3 (Para 2)

…49] R v Maher ,[50] Nikora , R v Huxtable [51] and R v Osborn .[52] [48][2009] QCA 113. [49][2011] QCA 296. [50][2012] QCA 7. [51][2014] QCA 249. [52][2014] QCA 291.…
R v Huxtable [2014] QCA 249
Citation 4 (Para 2)

…,[48] R v Hopper ,[49] R v Maher ,[50] Nikora , R v Huxtable [51] and R v Osborn .[52] [48][2009] QCA 113. [49][2011] QCA 296. [50][2012] QCA 7. [51][2014] QCA 249. [52][2014] QCA 291.…
R v Nikora [2014] QCA 192
Citation 5 (Para 26)

…,[14] R v Blanch ,[15] R v Grabovica ,[16] R v Wilde, ex parte Attorney-General (Qld) ,[17] and R v Vance, ex parte Attorney-General (Qld) .[18] [14][2014] QCA 192. [15][2008] QCA 253. [16][2012] QCA 180. [17][2002] QCA 501. [18][2007] QCA 269.…
R v MacDonald [2014] QCA 9
Citation 6 (Para 7)

…of the conduct. As R v MacDonald [56] reiterated, categorisation such as the conduct being a matter of momentary inattention is not appropriate. [56][2014] QCA 9 at [17].…
R v Grabovica [2012] QCA 180
Citation 7 (Para 26)

…16] R v Wilde, ex parte Attorney-General (Qld) ,[17] and R v Vance, ex parte Attorney-General (Qld) .[18] [14][2014] QCA 192. [15][2008] QCA 253. [16][2012] QCA 180. [17][2002] QCA 501. [18][2007] QCA 269.…
R v Maher [2012] QCA 7
Citation 8 (Para 2)

…including R v Ruka ,[48] R v Hopper ,[49] R v Maher ,[50] Nikora , R v Huxtable [51] and R v Osborn .[52] [48][2009] QCA 113. [49][2011] QCA 296. [50][2012] QCA 7. [51][2014] QCA 249. [52][2014] QCA 291.…
R v Hopper [2011] QCA 296
Citation 9 (Para 2)

…alty were reviewed, including R v Ruka ,[48] R v Hopper ,[49] R v Maher ,[50] Nikora , R v Huxtable [51] and R v Osborn .[52] [48][2009] QCA 113. [49][2011] QCA 296. [50][2012] QCA 7. [51][2014] QCA 249. [52][2014] QCA 291.…
Hili v The Queen [2010] HCA 45
Citation 10 (Para 17)

…have been a misapplication of principle, or that the sentence is “unreasonable or plainly unjust”.[33] [33] Hili v The Queen (2010) 242 CLR 520, [2010] HCA 45, at [58]-[59].…
R v Ruka [2009] QCA 113
Citation 11 (Para 2)

…the increase in penalty were reviewed, including R v Ruka ,[48] R v Hopper ,[49] R v Maher ,[50] Nikora , R v Huxtable [51] and R v Osborn .[52] [48][2009] QCA 113. [49][2011] QCA 296. [50][2012] QCA 7. [51][2014] QCA 249. [52][2014] QCA 291.…
R v Murphy [2009] QCA 93
Citation 12 (Para 1)

…orney-General (Qld) ,[46] and R v Murphy .[47] [42][2004] QCA 240. [43][2005] QCA 92. [44][2005] QCA 455. [45][2007] QCA 183. [46][2007] QCA 269. [47][2009] QCA 93.…
R v Blanch [2008] QCA 253
Citation 13 (Para 26)

…15] R v Grabovica ,[16] R v Wilde, ex parte Attorney-General (Qld) ,[17] and R v Vance, ex parte Attorney-General (Qld) .[18] [14][2014] QCA 192. [15][2008] QCA 253. [16][2012] QCA 180. [17][2002] QCA 501. [18][2007] QCA 269.…
R v. Vance ; ex parte A-G (Qld) [2007] QCA 269
Citation 14 (Para 26)

…(Qld) ,[17] and R v Vance, ex parte Attorney-General (Qld) .[18] [14][2014] QCA 192. [15][2008] QCA 253. [16][2012] QCA 180. [17][2002] QCA 501. [18][2007] QCA 269.…
R v Sheedy; ex parte A-G (Qld) [2007] QCA 183
Citation 15 (Para 1)

…R v Sheedy ,[45] R v Vance, ex parte Attorney-General (Qld) ,[46] and R v Murphy .[47] [42][2004] QCA 240. [43][2005] QCA 92. [44][2005] QCA 455. [45][2007] QCA 183. [46][2007] QCA 269. [47][2009] QCA 93.…
R v Evans [2005] QCA 455
Citation 16 (Para 1)

…43] R v Evans ,[44] R v Sheedy ,[45] R v Vance, ex parte Attorney-General (Qld) ,[46] and R v Murphy .[47] [42][2004] QCA 240. [43][2005] QCA 92. [44][2005] QCA 455. [45][2007] QCA 183. [46][2007] QCA 269. [47][2009] QCA 93.…
R v Gray [2005] QCA 280
Citation 17 (Para 21)

…irl in the back was killed, and another suffered serious injuries. An hour after the accident the offender’s blood alcohol level was 0.125. [34][2005] QCA 280.…
R v Hoad [2005] QCA 92
Citation 18 (Para 1)

…r ,[42] R v Hoad ,[43] R v Evans ,[44] R v Sheedy ,[45] R v Vance, ex parte Attorney-General (Qld) ,[46] and R v Murphy .[47] [42][2004] QCA 240. [43][2005] QCA 92. [44][2005] QCA 455. [45][2007] QCA 183. [46][2007] QCA 269. [47][2009] QCA 93.…
R v Gallaher [2004] QCA 240
Citation 19 (Para 1)

…Wilde , R v Gallagher ,[42] R v Hoad ,[43] R v Evans ,[44] R v Sheedy ,[45] R v Vance, ex parte Attorney-General (Qld) ,[46] and R v Murphy .[47] [42][2004] QCA 240. [43][2005] QCA 92. [44][2005] QCA 455. [45][2007] QCA 183. [46][2007] QCA 269. [47][2009] QCA 93.…
R v Wilde; ex parte A-G (Qld) [2002] QCA 501
Citation 20 (Para 26)

…rte Attorney-General (Qld) ,[17] and R v Vance, ex parte Attorney-General (Qld) .[18] [14][2014] QCA 192. [15][2008] QCA 253. [16][2012] QCA 180. [17][2002] QCA 501. [18][2007] QCA 269.…

Legislation Cited

No legislation cited in this judgment.

CITATION:	R v Etheridge [2016] QCA 241
PARTIES:	R v ETHERIDGE, Noa Ronnie (applicant)
FILE NO/S:	CA No 277 of 2015 DC No 156 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Rockhampton – Date of Sentence: 15 October 2015
DELIVERED ON:	23 September 2016
DELIVERED AT:	Brisbane
HEARING DATE:	1 June 2016
JUDGES:	Morrison JA and North and Henry JJ 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. Set aside the orders made on 15 October 2015 in so far as it was ordered that the offender be imprisoned for a period of six years, and that the date the offender is eligible for parole be fixed at 14 October 2017. 4. Order in lieu thereof, the offender be imprisoned for a period of five years, and that the offender be released on parole on 15 June 2017. 5. Otherwise confirm the orders made on 15 October 2015. Order delivered ex tempore on 23 September 2016: In respect of order 4, delete “the offender be released on parole”; and order in lieu thereof “the offender be imprisoned for a period of five years, and that the date the offender is eligible for parole be fixed at 15 June 2017.”
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to charges of dangerous operation of a vehicle causing death – where the applicant was sentenced to six years imprisonment, with parole eligibility set at two years – where the applicant was also disqualified from holding or obtaining a driver’s licence for five years – where the applicant went to a social event with friends and consumed alcohol and cannabis – where the applicant left the event, with his friends who were also inebriated and who nominated him as the designated driver – where the applicant drove the car at night and struck a man, who later died of the injuries – where the applicant did not stop the vehicle and did not allow another passenger to call emergency services – where the applicant was a disqualified driver at the time – where the applicant had a history of traffic offences – where the applicant contends that the sentence was manifestly excessive having regard to other cases of similar circumstances – whether the sentence was manifestly excessive R v Blanch[2008] QCA 253, cited R v Coutts[2016] QCA 206, cited R v Grabovica[2012] QCA 180, considered R v Maher[2012] QCA 7, considered R v Nikora[2014] QCA 192, considered R v Ruka[2009] QCA 113, considered R v Schoner[2015] QCA 190, considered R v Vance, ex parte Attorney-General (Qld)[2007] QCA 269, considered R v…