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 2015DIVISION:
Court of Appeal
PROCEEDING:
Application for Extension (Conviction)
Sentence ApplicationORIGINATING 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 madeORDER:
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…
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- AGLC
- R v Gazzara [2017] QCA 168
- Case
- [2017] QCA 168
- Decision Date
CaseChat Overview and Summary
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
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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