R v Hannigan

[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…