R v Hallett - [2009] QCA 96

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hallett [2009] QCA 96

PARTIES:

R
v
HALLETT, Robert Glen
(applicant)

FILE NO/S:

CA No 19 of 2009
DC No 2535 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

15 April 2009

JUDGES:

Muir and Fraser JJA and White 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 – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted on plea of guilty of dangerous operation of a motor vehicle causing death under s 328A of the Criminal Code 1899 (Qld) – where circumstances of aggravation that the applicant was adversely affected by an intoxicating substance and had twice previously been convicted of offences of driving under the influence and dangerous operation of a motor vehicle – where applicant sentenced to seven years imprisonment, to be served concurrently with sentences he was already serving, with parole eligibility after serving one third of the term of imprisonment – where applicant also disqualified absolutely from holding a driver’s licence – where applicant had extensive traffic and criminal histories – whether the totality principle was applied incorrectly by the sentencing judge – whether applicant should have been given credit for time already served, where such imprisonment was being served for other offences – whether sentence failed to reflect the fact that the victim in the offence was the applicant’s own father – whether sentence manifestly excessive

Criminal Code 1899 (Qld), s 328A
Criminal Code and Civil Liability Amendment Act 2007 (Qld), s 4

R v Bains[2008] QCA 247, cited
R v CAN[2009] QCA 59, considered
R v Carter[2008] QCA 226, cited
R v Hey; ex parte A-G (Qld)[2006] QCA 23, cited

COUNSEL:

The applicant appeared on his own behalf
M B Lehane for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Qld) for the respondent

MUIR JA:I agree with the reasons of Fraser JA and with the order he proposes.

FRASER JA: On 23 December 2008 the applicant was convicted on his plea of guilty of an offence against s 328A of the Criminal Code 1899 (Qld) of dangerous operation of a motor vehicle causing death, with the circumstances of aggravation that the applicant was adversely affected by an intoxicating substance and had twice previously been convicted of the prescribed offences of driving under the influence of liquor or drugs and dangerous operation of a motor vehicle. The applicant was sentenced to seven years imprisonment, that sentence to run concurrently with sentences that the applicant was already serving. The sentencing judge fixed the applicant's parole eligibility date as 23 April 2011, which was two years and four months after the date of…

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 Hallett

Details

AGLC: R v Hallett [2009] QCA 96
Case: [2009] QCA 96
Decision Date: 21 April 2009

CaseChat Overview and Summary

In the case of R v Hallett, the applicant was convicted on a plea of guilty of dangerous operation of a motor vehicle causing death under section 328A of the Criminal Code 1899 (Qld). The court was presented with the circumstances of aggravation that the applicant was adversely affected by an intoxicating substance and had twice previously been convicted of offences of driving under the influence and dangerous operation of a motor vehicle. The applicant was sentenced to seven years imprisonment, to be served concurrently with sentences he was already serving, with parole eligibility after serving one third of the term of imprisonment. The applicant was also disqualified absolutely from holding a driver’s licence. The applicant had extensive traffic and criminal histories.

The legal issues before the court were whether the totality principle was applied incorrectly by the sentencing judge, whether the applicant should have been given credit for time already served, where such imprisonment was being served for other offences, and whether the sentence failed to reflect the fact that the victim in the offence was the applicant’s own father. The court considered the totality principle and determined that the sentence was not manifestly excessive. The court also considered the fact that the victim was the applicant’s own father but found that this did not warrant a different sentence. The court further found that the applicant was not entitled to credit for time already served as he was serving sentences for other offences.

The court ultimately determined that the sentence was not manifestly excessive and that the sentencing judge had properly applied the totality principle. The court also found that the applicant was not entitled to credit for time already served as he was serving sentences for other offences. The court refused the applicant’s application for leave to appeal against sentence.

Orders

Orders of the court

Application for leave to appeal against sentence refused

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 Hallett [2009] QCA 96
PARTIES:	R v HALLETT, Robert Glen (applicant)
FILE NO/S:	CA No 19 of 2009 DC No 2535 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	21 April 2009
DELIVERED AT:	Brisbane
HEARING DATE:	15 April 2009
JUDGES:	Muir and Fraser JJA and White 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 – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted on plea of guilty of dangerous operation of a motor vehicle causing death under s 328A of the Criminal Code 1899 (Qld) – where circumstances of aggravation that the applicant was adversely affected by an intoxicating substance and had twice previously been convicted of offences of driving under the influence and dangerous operation of a motor vehicle – where applicant sentenced to seven years imprisonment, to be served concurrently with sentences he was already serving, with parole eligibility after serving one third of the term of imprisonment – where applicant also disqualified absolutely from holding a driver’s licence – where applicant had extensive traffic and criminal histories – whether the totality principle was applied incorrectly by the sentencing judge – whether applicant should have been given credit for time already served, where such imprisonment was being served for other offences – whether sentence failed to reflect the fact that the victim in the offence was the applicant’s own father – whether sentence manifestly excessive Criminal Code 1899 (Qld), s 328A Criminal Code and Civil Liability Amendment Act 2007 (Qld), s 4 R v Bains[2008] QCA 247, cited R v CAN[2009] QCA 59, considered R v Carter[2008] QCA 226, cited R v Hey; ex parte A-G (Qld)[2006] QCA 23, cited
COUNSEL:	The applicant appeared on his own behalf M B Lehane for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Qld) for the respondent