R v Gazzara

Case [2017] QCA 168

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gazzara [2017] QCA 168

PARTIES:

R
v
GAZZARA, Benjamin James
(applicant/appellant)

FILE NO/S:

CA No 311 of 2016
DC No 418 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)
Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 22 August 2016; Date of Sentence: 24 October 2016

DELIVERED ON:

11 August 2017

DELIVERED AT:

Brisbane

HEARING DATE:

19 April 2017

JUDGES:

Morrison and Philippides JJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

1.   The time in which to file the appeal is extended to 16 December 2016.

2.   The application for leave to adduce further evidence is refused.

3.   The appeal against conviction is dismissed.

4.   The application for leave to appeal against sentence is granted.

5.   The appeal against sentence is allowed.

6.   Vary the order that the applicant be disqualified from holding or obtaining a driver’s licence for a period of three years and instead order the applicant be disqualified from holding or obtaining a driver’s licence for a period of two years from 24 October 2016.

7.   Order that the portion of the disqualification that had not expired when the appeal against conviction was lodged on 16 November 2016 shall take effect from 17 November 2016.

8.   Otherwise confirm the sentence imposed on 24 October 2016.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – where the applicant/appellant pleaded guilty to dangerous operation of a motor vehicle causing grievous bodily harm on 22 August 2016 – where the applicant/appellant was sentenced on 24 October 2016 – where the applicant/appellant filed a notice of application to extend the time within which to appeal his conviction – where the notice of application explained that the applicant/appellant mistakenly believed he had been convicted in October, rather than when he was arraigned in August – whether the applicant/appellant should be granted leave to appeal

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – GENERAL PRINCIPLES – where the applicant/appellant submitted the plea of guilty was not a true acknowledgement of guilt – where the appellant submitted that a miscarriage of justice would occur if the plea of guilty was not set aside – where the appellant received legal advice prior to entering his plea of guilty – where the appellant’s counsel and solicitors had access to all evidence supporting the charge before advising the applicant to plead guilty – where the appellant gave written instructions of the plea of guilty – where the appellant submitted at the appeal hearing that a new expert report obtained in a civil proceeding should be accepted as fresh evidence which requires a re-trial – whether a substantive miscarriage of justice would occur if the new report was not accepted

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST…

Continue reading R v Gazzara

Sign in free to access the full text

Details
AGLC
R v Gazzara [2017] QCA 168
Case
[2017] QCA 168
Decision Date

CaseChat Overview and Summary

In the matter of R v Gazzara, the appellant appealed against his conviction and sentence following a guilty plea to dangerous operation of a motor vehicle causing grievous bodily harm. The primary legal issues addressed by the court were whether the plea of guilty was a true acknowledgment of guilt, whether a miscarriage of justice would occur if the plea was not set aside, and whether the sentence was manifestly excessive. The court examined the circumstances surrounding the guilty plea, including the appellant’s access to legal advice and evidence, and whether the plea was truly voluntary and informed. Additionally, the court assessed the severity of the sentence, considering the nature of the offence, the need for community protection, and the appellant’s prospects for rehabilitation.

The court found that the appellant’s plea of guilty was indeed a true acknowledgment of guilt, as he had received legal advice and had access to all relevant evidence before entering the plea. The court concluded that there was no miscarriage of justice in allowing the guilty plea to stand. Regarding the sentence, the court determined that while the appellant's conduct was fraught with risk and had profound implications for the victim, the overall sentence was not manifestly excessive. However, the court did find that the disqualification period from holding or obtaining a driver’s licence was excessive and varied the disqualification period to two years. The appeal against conviction was dismissed, but the appeal against the sentence was allowed in part.

The court granted leave to appeal against the sentence and varied the disqualification period from three years to two years. The new disqualification period was to commence from the date of the original sentence, with any unexpired portion taking effect from the date the appeal against conviction was lodged. The remainder of the sentence was confirmed as imposed on 24 October 2016.

Orders

Orders of the court

1. The time in which to file the appeal is extended to 16 December 2016.

2. The application for leave to adduce further evidence is refused.

3. The appeal against conviction is dismissed.

4. The application for leave to appeal against sentence is granted.

5. The appeal against sentence is allowed.

6. Vary the order that the applicant be disqualified from holding or obtaining a driver’s licence for a period of three years and instead order the applicant be disqualified from holding or obtaining a driver’s licence for a period of two years from 24 October 2016.

7. Order that the portion of the disqualification that had not expired when the appeal against conviction was lodged on 16 November 2016 shall take effect from 17 November 2016.

8. Otherwise confirm the sentence imposed on 24 October 2016.

Background

Background to the litigation

At the hearing before this Court leave was granted to amend the grounds of the appeal so that the only grounds raised were:(a)the plea of guilty was not a true acknowledgment of guilt;(b)it would be a miscarriage of justice if the plea of guilty was not set aside and a re-trial ordered; and(c)the sentence was manifestly excessive.Factual background of the offending It is appropriate to consider the factual basis of the offending in a little more detail. Mr Gazzara was 24 years old at the time of the offence, and employed as a truck driver. He was taking the prime mover and semi-trailer from the Port of Brisbane to Mackay. He had loaded the semi-trailer with the two crates of machinery which, together, weighed about 16 tonnes. The smaller crate, though heavier at 11 tonnes, was loaded over the back axles of the trailer. The truck was signed “Oversize” because the larger crate was wider than the trailer. The larger one, weighing five tonnes, was loaded immediately behind the cabin of the semi-trailer. Mr Corry, then about 25 years old, had been friends with Mr Gazzara for about eight years. He needed to travel to Mackay and Mr Gazzara offered him a lift. They met at Boronia Heights on the evening when they left Brisbane. Both Mr Corry and Mr Gazzara checked the load. Mr Corry, who had commercial truck driving experience, did not think the load was perfectly loaded, and would have loaded it differently himself. However, he was not so worried as to decline to get into the prime mover. At the point where the Gateway Motorway travels over the Gympie Arterial Road, at Bald Hills, the overpass is part of a large sweeping right hand bend. The speed limit was 100 kilometres per hour, and Mr Gazzara was travelling at a speed between 96 and 100 kilometres per hour. Because his truck was “over size”, Queensland Government Guidelines limited him to 90 kilometres per hour, or any lower speed that was signed. The bend had an advisory speed of 80 kilometres per hour, signed on both sides of the road. Mr Corry was concerned at the speed involved in approaching the right hand bend. He told Mr Gazzara that he “might want to back off a bit”, but Mr Gazzara did not do so, replying “it’ll be right”. Mr Gazzara did not brake at all going into the curve. As Mr Gazzara approached the bend he was in the right hand lane. He came up behind another truck which was travelling slower than himself, also in the right hand lane. Mr Gazzara changed lanes to the left to “undertake the truck”.[2][2]The expression “undertake” was used in the agreed Schedule of Facts, apparently to signify overtaking a vehicle on the left, rather than the right. After the truck entered the left hand lane, Mr Gazzara turned the steering wheel to straighten the truck’s path into that lane. The tyre marks which revealed Mr Gazzara’s path, showed it was travelling with a radius of about 220 metres, instead of the radius of the path if it had stayed in one lane (about 320 metres).

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.