R v Hannigan

Case [2009] QCA 40


SUPREME COURT OF QUEENSLAND

CITATION:

R v Hannigan [2009] QCA 40

PARTIES:

R
v
HANNIGAN, Damien Gerard
(applicant)

FILE NO/S:

CA No 324 of 2008
DC No 2471 of 2008
DC No 7547 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

3 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

12 February 2009

JUDGES:

de Jersey CJ, Chesterman JA and Atkinson J
Separate reasons for judgment of each member of the Court, de Jersey CJ and Chesterman JA concurring as to the order made, Atkinson J dissenting

ORDER:

The application for leave to appeal against sentence is refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant sentenced on plea of guilty to dangerous operation of a vehicle with a circumstance of aggravation – where applicant sentenced to 18 months imprisonment suspended after 6 months with an operational period of two years – where applicant submits sentence manifestly excessive having regard to evidence not available at the time of sentence – where new allegations from a third party that police officer assaulted the applicant after committing the offence – whether this amounted to extra-curial punishment – whether  extra-curial punishment in this case is a mitigating factor – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 188
Supreme Court Act 1995 (Qld), s 58(2), s 68(3)
Transport Operation (Road Use Management – Vehicle Registration) Regulation 1999 (Qld), s 54

Alameddine v R [2006] NSWCCA 317, considered
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; [1992] HCA 64, cited
R v Daetz; R v Wilson (2003) 139 A Crim R 398; [2003] NSWCCA 216, considered
R v Hook[2006] QCA 458, considered
R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, considered
R v Manning[2007] QCA 145, cited
R v Noble&Verheyden [1996] 1 Qd R 329; [1994] QCA 283, considered
Silvano v R [2008] NSWCCA 118, considered
Sharpe v R [2006] NSWCCA 255, considered

COUNSEL:

R J Hunter  SC for the applicant
MG Lehane for the respondent

SOLICITORS:

Ryan & Bosscher for the applicant
Department of Public Prosecutions (Queensland) for the respondent

  1. de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of Chesterman JA, with which I agree.  I, too, would refuse the application.

  1. CHESTERMAN JA:  The applicant was charged on indictment with dangerously operating a motor vehicle in Coopers Plains on 8 April 2008 at a time when he was adversely affected by an intoxicating substance.  On 28 November 2008 he pleaded guilty to that charge and also to a number of summary offences all committed on the same day, 8 April 2008.  They were:

·     Driving under the influence of liquor;

·     Driving when he was not the holder of a driver’s…

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Details
AGLC
R v Hannigan [2009] QCA 40
Case
[2009] QCA 40
Decision Date

CaseChat Overview and Summary

In the case of R v Hannigan, the applicant appealed against his sentence for the dangerous operation of a vehicle, with an aggravating circumstance. Hannigan had pleaded guilty and was sentenced to 18 months imprisonment, suspended after serving six months, with an operational period of two years. Hannigan argued that the sentence was manifestly excessive, particularly in light of new evidence that was not available at the time of sentencing. This evidence included allegations from a third party that a police officer had assaulted Hannigan after the commission of the offence. Hannigan argued that this constituted extra-curial punishment and should be considered a mitigating factor in determining the appropriate sentence.

The court was required to determine whether the sentence was manifestly excessive and whether the new evidence of the alleged assault by a police officer constituted extra-curial punishment that should be taken into account as a mitigating factor. The court also needed to consider whether the alleged assault and the extra-curial punishment it represented were relevant in assessing the severity of the sentence.

The court found that the sentence was not manifestly excessive, given the nature and seriousness of the offence and the aggravating circumstance. The court also determined that the new evidence of the alleged assault by the police officer did not constitute extra-curial punishment, as it did not involve punishment by a person who was not part of the judicial process. The court held that the alleged assault did not affect the sentence's severity and that the sentence was proportionate to the offence committed. Consequently, the application for leave to appeal against the sentence was refused.

The court's final order was that the application for leave to appeal against the sentence was refused. This decision confirmed the original sentence and dismissed Hannigan's appeal against it.

Orders

Orders of the court

The application for leave to appeal against sentence is 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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