R v Gallaher - [2004] QCA 240

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gallaher [2004] QCA 240

PARTIES:

R
v
GALLAHER, Kenneth Samuel
(applicant)

FILE NO/S:

CA No 5 of 2004
DC No 50 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Gympie

DELIVERED ON:

23 July 2004

DELIVERED AT:

Brisbane

HEARING DATE:

19 July 2004

JUDGES:

de Jersey CJ, Williams JA and Mackenzie 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 – CIRCUMSTANCES OF OFFENDER – where applicant convicted of dangerous operation of a motor vehicle causing death – where sentenced to three and a half years imprisonment – where bad traffic history – whether learned sentencing judge placed too much weight on the impact of the offence on victim’s family – whether learned sentencing judge did not put enough weight on applicant’s significant intellectual defects – whether sentence imposed manifestly excessive

R v Gardiner [1996] QCA 8; CA No 452 of 1995, 13 February 1996, cited
R v Hardes [2003] QCA 47; CA No 393 of 2002, 18 February 2003, cited
R v Newman [1997] QCA 143; CA No 88 of 1997, 8 May 1997, cited
R v Wilde; ex parte A-G (Qld) [2002] QCA 501; CA No 283 of 2002, 19 November 2002, cited

COUNSEL:

L J Powell (sol) for the applicant
R G Martin for the respondent

SOLICITORS:

QEC Aboriginal and Torres Strait Islanders Corporation for Legal Services for the applicant
Director of Public Prosecutions (Queensland) for the respondent

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Williams JA. I agree that the application for leave to appeal against sentence should be refused, and with His Honour’s reasons.

WILLIAMS JA: The applicant was convicted on 20 November 2003 after a trial of dangerous operation of a motor vehicle causing death. The incident in question occurred on 24 May 2002 on a rural road outside of Gympie. In broad terms the vehicle being driven by the applicant came over what was described as a “blind crest” then travelled onto its incorrect side of the road where it collided head-on with a motor vehicle in which the deceased was a passenger. In summarising the facts the learned sentencing judge observed that the evidence did not establish that the applicant was driving in excess of the 80 kilometres per hour speed limit, but said that “to come over that crest at perhaps 80 kilometres an hour was in itself extremely dangerous”. During the trial the applicant challenged the truthfulness of the version given by the deceased’s husband who was driving and two other eye witnesses. That challenge was obviously rejected by the jury.

The applicant had a bad traffic history for unlicensed driving and driving unaccompanied on a…

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 Gallaher

Details

AGLC: R v Gallaher [2004] QCA 240
Case: [2004] QCA 240
Decision Date: 23 July 2004

CaseChat Overview and Summary

The case of R v Gallaher involved the applicant who had been convicted of dangerous operation of a motor vehicle causing death. Following the conviction, the applicant was sentenced to three and a half years imprisonment by the sentencing judge. The applicant’s history of traffic violations was extensive, and he also had significant intellectual disabilities. The applicant appealed against the sentence, arguing that the sentencing judge had placed too much emphasis on the impact of the offence on the victim’s family and not enough on the applicant's intellectual disabilities. The central legal issues for the court were whether the learned sentencing judge erred in the weight assigned to these factors and if the sentence imposed was manifestly excessive.

The court carefully reviewed the sentencing principles and the considerations that should be taken into account when sentencing an offender. It examined the sentencing judge’s assessment of the impact of the offence on the victim’s family and the applicant’s intellectual disabilities. The court held that the sentencing judge had appropriately balanced the various factors, including the impact on the victim’s family, the nature and circumstances of the offence, and the applicant's intellectual defects. The court was satisfied that the sentence imposed was neither manifestly excessive nor did it result from an error in the weighing of the relevant factors. The court noted that the sentence was within the range of penalties typically imposed for such offences and that the sentencing judge had considered the totality of the circumstances.

Consequently, the court found that the applicant had not demonstrated that the sentence was manifestly excessive or that there had been a significant error in the sentencing process. The appeal against the sentence was therefore dismissed, and the application for leave to appeal was refused. This decision underscored the importance of a balanced approach in sentencing, taking into account both the harm caused by the offence and the characteristics of the offender.

Orders

Orders of the court

Application for leave to appeal against sentence refused

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Gallaher [2004] QCA 240
PARTIES:	R v GALLAHER, Kenneth Samuel (applicant)
FILE NO/S:	CA No 5 of 2004 DC No 50 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Gympie
DELIVERED ON:	23 July 2004
DELIVERED AT:	Brisbane
HEARING DATE:	19 July 2004
JUDGES:	de Jersey CJ, Williams JA and Mackenzie 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 – CIRCUMSTANCES OF OFFENDER – where applicant convicted of dangerous operation of a motor vehicle causing death – where sentenced to three and a half years imprisonment – where bad traffic history – whether learned sentencing judge placed too much weight on the impact of the offence on victim’s family – whether learned sentencing judge did not put enough weight on applicant’s significant intellectual defects – whether sentence imposed manifestly excessive R v Gardiner [1996] QCA 8; CA No 452 of 1995, 13 February 1996, cited R v Hardes [2003] QCA 47; CA No 393 of 2002, 18 February 2003, cited R v Newman [1997] QCA 143; CA No 88 of 1997, 8 May 1997, cited R v Wilde; ex parte A-G (Qld) [2002] QCA 501; CA No 283 of 2002, 19 November 2002, cited
COUNSEL:	L J Powell (sol) for the applicant R G Martin for the respondent
SOLICITORS:	QEC Aboriginal and Torres Strait Islanders Corporation for Legal Services for the applicant Director of Public Prosecutions (Queensland) for the respondent