R v Fanning - [2005] QCA 267

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fanning [2005] QCA 267

PARTIES:

R
v
FANNING, Dale Trent
(applicant)

FILE NO/S:

CA No 132 of 2005
DC No 327 of 2005
DC No 207 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED EX TEMPORE ON:

1 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

1 August 2005

JUDGES:

McPherson, Williams and Jerrard JJA
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 against sentence allowed

3.    The effective sentence imposed below varied by reducing the date at which suspension takes effect on each count from 6 months to 3 months

4.    The 5 year disqualification from holding or obtaining a driver’s licence is reduced to 2 years

CATCHWORDS:

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 REFUSED – GENERALLY – applicant pleaded guilty to dangerous operation of a motor vehicle whilst adversely affected by an intoxicating substance and breaking entering and stealing – whether sentence of 18 months’ imprisonment suspended after six months manifestly excessive – whether appropriate consideration given to principles in s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld)

Penalties and Sentences Act 1992 (Qld), s 9(2)(a)

R v Gehrman [2002] QCA 261; CA No 192 of 2002, 25 July 2002, considered
R v Simpson [2001] QCA 109; CA No 309 of 2000, 21 March 2001, considered
R v Smith [2004] QCA 126; CA No 88 of 2004, 22 April 2004, considered

COUNSEL:

A J Rafter SC for the applicant
D L Meredith for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Qld) for the respondent

McPHERSON JA: This is an application for leave to appeal against sentence.

The applicant was convicted of two offences, namely the dangerous operation of a vehicle, whilst adversely affected by an intoxicating substance and breaking, entering and stealing.

He was sentenced in the Beenleigh District Court, to 18 months' imprisonment for both offences, to be suspended after six months, for an operational period of three years. He was also disqualified from holding or obtaining a driver's licence for five years.

The offence of dangerous operation of a vehicle whilst adversely affected by an intoxicating substance was committed on 12 April 2003 at about 1.30 in the early morning. The applicant was observed by a police officer, driving at excessive speed.

He was seen to lose control of the vehicle, which went sideways into a corner. When the police caught up with it again, the applicant's vehicle was seen to lose control and spin 360 degrees on approximately three occasions. The applicant drove off at excessive speed before being intercepted by the police. No chase then ensued.

His blood alcohol content, tested by…

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 Fanning

Details

AGLC: R v Fanning [2005] QCA 267
Case: [2005] QCA 267
Decision Date: 1 August 2005

CaseChat Overview and Summary

In the case of R v Fanning, the applicant, who had pleaded guilty to dangerous operation of a motor vehicle while adversely affected by an intoxicating substance, and to breaking and entering and stealing, appealed against his sentence. The applicant sought to challenge the severity of the sentence, which was 18 months' imprisonment suspended after six months. The central issue before the court was whether this sentence was manifestly excessive and whether the principles outlined in section 9(2)(a) of the Penalties and Sentences Act 1992 (Qld) had been appropriately considered.

The court had to determine if the sentence was so disproportionate that it could be deemed manifestly excessive, and whether the sentencing judge had adequately taken into account the relevant legislative principles. The applicant argued that the six-month suspension period was unduly harsh and that the disqualification from holding or obtaining a driver’s licence for five years was excessive. The court examined the nature and circumstances of the offences, the personal circumstances of the applicant, and the principles that should guide the sentencing process under the relevant legislation.

Upon review, the court found that the sentence was indeed manifestly excessive in the six-month suspension period, and that the disqualification period was also too long. The court recognised that while the offences were serious, the sentence imposed was disproportionately severe. Consequently, the court granted the application for leave to appeal and allowed the appeal against the sentence. The court varied the sentence by reducing the suspension period from six months to three months on each count, and also reduced the disqualification period from five years to two years. This adjustment was deemed appropriate to reflect the principles of the legislation and to ensure that the sentence was fair and proportionate to the offences committed.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal against sentence allowed

3. The effective sentence imposed below varied by reducing the date at which suspension takes effect on each count from 6 months to 3 months

4. The 5 year disqualification from holding or obtaining a driver’s licence is reduced to 2 years

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 Fanning [2005] QCA 267
PARTIES:	R v FANNING, Dale Trent (applicant)
FILE NO/S:	CA No 132 of 2005 DC No 327 of 2005 DC No 207 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED EX TEMPORE ON:	1 August 2005
DELIVERED AT:	Brisbane
HEARING DATE:	1 August 2005
JUDGES:	McPherson, Williams and Jerrard JJA 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 against sentence allowed 3. The effective sentence imposed below varied by reducing the date at which suspension takes effect on each count from 6 months to 3 months 4. The 5 year disqualification from holding or obtaining a driver’s licence is reduced to 2 years
CATCHWORDS:	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 REFUSED – GENERALLY – applicant pleaded guilty to dangerous operation of a motor vehicle whilst adversely affected by an intoxicating substance and breaking entering and stealing – whether sentence of 18 months’ imprisonment suspended after six months manifestly excessive – whether appropriate consideration given to principles in s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld) Penalties and Sentences Act 1992 (Qld), s 9(2)(a) R v Gehrman [2002] QCA 261; CA No 192 of 2002, 25 July 2002, considered R v Simpson [2001] QCA 109; CA No 309 of 2000, 21 March 2001, considered R v Smith [2004] QCA 126; CA No 88 of 2004, 22 April 2004, considered
COUNSEL:	A J Rafter SC for the applicant D L Meredith for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Qld) for the respondent