R v Harris - [2008] QCA 141

COURT OF APPEAL

HOLMES JA
FRASER JA
DAUBNEY J

CA No 32 of 2008

THE QUEEN

JAMIE ALLAN HARRIS Applicant

BRISBANE

DATE 05/06/2008

JUDGMENT

MR A MOYNIHAN (instructed by Legal Aid Queensland) for the applicant

MR R G MARTIN (instructed by Director of Public Prosecutions (Queensland)) for the respondent

DAUBNEY J: On 7 February 2008, the applicant was convicted on his own plea of the following offences, and was sentenced to the following respective terms of imprisonment to be served concurrently:
(a) driving a motor vehicle while disqualified - 18 months imprisonment, with a fixed parole release date of 7 November 2008 (that is, after 9 months incarceration);
(b) dangerous operation of a vehicle - 12 months imprisonment with a fixed parole release date of 7 November 2008; and
(c) failing to stop at the scene of an accident - 3 months imprisonment.

The applicant seeks leave to appeal against these sentences, contending that they were manifestly excessive.

The offences were committed on 25 March 2007. The applicant, who had been disqualified from driving in June 2006, drove half a kilometre to his local shops to buy milk. It had been raining that day and he did not want to ride his bicycle. According to witness statements taken by police, the applicant engaged in some aggressive driving on the way to the shops. He was seen accelerating away from the shops in an aggressive manner, lost control of the vehicle, mounted the footpath and drove into a house fence causing extensive damage to it. He then fled the scene.

When interviewed by police, the applicant admitted accelerating from the shops in a hurry, and losing control of the vehicle after he changed gears. It was not in issue that he had caused quite extensive damage to the front metal fence of the house and had knocked over a street sign, nor was it in issue that he had fled the scene. The applicant has an appalling driving history. Between 1990 and 2006 he was convicted of unlicensed driving 7 times and twice for driving while disqualified. He also has several convictions for drink-driving. His criminal record is also less than inspiring, consisting principally, as it does, of a catalogue of property and drug offences dating back to 1990. He has been imprisoned on several occasions – 3 months imprisonment ordered in November 1991 for the offence of unlawful use of a motor vehicle - 4 months imprisonment ordered in 1999 for breach of bail undertakings and breach of domestic violence orders, 4 months imprisonment ordered on 7 February 2002 for breach of bail undertakings, and 3 months imprisonment (wholly suspended for 18 months) on drugs and stealing charges on 13 February 2002.

The applicant is now 34 years old. His counsel below quite properly conceded that the applicant could not sensibly claim an excuse of this incident being a youthful indiscretion.

The learned sentencing judge treated the disqualified driving offence as the most serious of those under consideration. In…

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 Harris

Details

AGLC: R v Harris [2008] QCA 141
Case: [2008] QCA 141
Decision Date: 5 June 2008

CaseChat Overview and Summary

In the case of R v Harris, the applicant, Jamie Allan Harris, sought leave to appeal against the sentences imposed for multiple driving offences. The court was required to decide whether the sentences imposed by the lower court were manifestly excessive. The legal issues included the proper application of the maximum penalties for each offence, the consideration of the applicant's guilty plea, and the overall appropriateness of the sentences given the applicant's extensive criminal history.

The Court of Appeal found that the sentencing judge misapplied the maximum penalty for the offence of driving while disqualified and failed to properly consider the applicant's guilty plea, as mandated by section 13 of the Penalties and Sentences Act 1992. The court concluded that these errors constituted a miscarriage of the sentencing discretion, thereby justifying the grant of leave to appeal. After considering the applicant's criminal history and mitigating factors, the court determined that a sentence of 12 months imprisonment for the disqualified driving offence was appropriate, with an earlier parole release date to reflect the guilty plea. The sentences for dangerous operation of a vehicle and failing to stop at the scene of an accident were affirmed with adjusted parole release dates.

The final orders of the Court of Appeal were to affirm the sentence for the offence of failing to stop at the scene of an accident and to vary the sentences for the offences of driving while disqualified and dangerous operation of a vehicle, with specific parole release dates.

Orders