R v Foreman - [2000] QCA 71

[2000] QCA 71

COURT OF APPEAL

McMURDO P
DAVIES JA
MOYNIHAN J

CA No 273 of 1999

THE QUEEN

FOREMAN, Anthony Ronald (Applicant)

BRISBANE

DATE 15/03/2000

JUDGMENT

DAVIES JA: The applicant pleaded guilty in the District Court at Ipswich on 20 July 1999 to offences, the first that on 19 March 1998 he drove without due care and attention, and the second that on 14 August 1998 he unlawfully used a motor vehicle with a circumstance of aggravation. On the first of these he was given three years probation, and on the second of these he was sentenced to three years imprisonment, wholly suspended, an operational period of three years. He seeks leave to appeal against those sentences.

It is common ground between the parties that in imposing those sentences the learned sentencing Judge's sentencing discretion miscarried. A sentence of imprisonment and a probation order cannot be ordered to run concurrently: R v. Hughes [2000] QCA 16 at [6] and [12]. Accordingly, those sentences must be set aside, and this Court must exercise its sentencing discretion afresh.

At the time he committed the first of these offences, the appellant was also driving under the influence of alcohol and driving whilst unaccompanied on a learner's permit, and he was sentenced on those offences at the same time. They arose out of an incident which occurred, as I have said, on 19 March 1998 when the appellant turned right off the road and drove into a shop. He attempted to leave by putting his vehicle into reverse, but was unsuccessful. He was found to have a blood alcohol reading of 0.188 per cent.

The second offence was much more serious. The complainant's vehicle was found in a stripped condition. What remained of it after stripping had been pushed into a creek. A number of its parts were found lying in a paddock. The applicant admitted to having stripped the car, removing the parts for his own vehicle. The vehicle was written off and both the complainant and the insurance company suffered loss.

At the time of the commission of these offences the applicant was only 18 years of age. He was 19 by the time he came to be sentenced. He had a very minor criminal history, having been convicted and fined only in respect of possession of a dangerous drug, presumably marijuana. However, he had a poor traffic history, having been fined on a number of occasions for unlicensed driving, and on one occasion for careless driving. It follows that he had not previously been in gaol, nor had the benefit of probation or community service.

There is no doubt, as I have said, that the second of the offences I have mentioned is quite serious. On the other hand, the question before this Court is not whether the applicant should serve a term of imprisonment, but whether a wholly suspended term of imprisonment or a probation order, perhaps coupled with an order for community service, is more appropriate.

There…

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 Foreman

Details

AGLC: R v Foreman [2000] QCA 71
Case: [2000] QCA 71
Decision Date: 15/03/2000

CaseChat Overview and Summary

The case of R v Foreman is an appeal by the applicant against the sentences imposed by the District Court at Ipswich. The applicant pleaded guilty to two offences: driving without due care and attention on 19 March 1998, and unlawfully using a motor vehicle on 14 August 1998. For the first offence, the applicant was given a three-year probation order, and for the second, a three-year suspended sentence of imprisonment, with an operational period of three years. The applicant sought leave to appeal against these sentences on the ground that the sentencing judge's discretion miscarried by ordering that the sentences run concurrently.

The legal issue before the Court of Appeal was whether the concurrent sentences of imprisonment and probation could stand, and whether the sentencing judge had correctly exercised his discretion in imposing those sentences. The Court noted that concurrent sentences of imprisonment and probation cannot be ordered, as established in R v Hughes. This misapplication of the sentencing judge's discretion meant that the sentences had to be set aside, and the Court of Appeal had to exercise its own sentencing discretion.

The Court of Appeal allowed the appeal and set aside the sentences imposed by the District Court. The Court found that a wholly suspended term of imprisonment was not the most appropriate sentence for the applicant, who was 18 at the time of the offences. Instead, a probation order, coupled with an order for community service, would be more appropriate. The Court ordered that the applicant be released under the supervision of an authorised Corrective Services Officer for 12 months for the first offence, and for three years for the second offence, with these terms to run concurrently. The Court also ordered that the applicant perform 120 hours of unpaid community service for the second offence, subject to his consent. The Court emphasised that convictions should be recorded in respect of both offences.

The Court of Appeal's order was that the sentences imposed by the District Court be set aside, and that the applicant be released under the supervision of an authorised Corrective Services Officer for 12 months for the first offence, and for three years for the second offence, with these terms to run concurrently. The Court also ordered that the applicant perform 120 hours of unpaid community service for the second offence, subject to his consent. The Court emphasised that convictions should be recorded in respect of both offences.

Orders