R v Hart

Case [2008] QCA 199


SUPREME COURT OF QUEENSLAND

CITATION:  R v Hart [2008] QCA 199
PARTIES:  R
v
HART, Llewellyn Frederick
(applicant)
FILE NO/S:  CA No 158 of 2008
DC No 92 of 2006
DIVISION:  Court of Appeal
PROCEEDING:  Sentence Application
ORIGINATING 
COURT: 
District Court at Townsville
DELIVERED ON:  25 July 2008
DELIVERED AT:  Brisbane
HEARING DATE:  18 July 2008
JUDGES:  de Jersey CJ, Keane and Fraser JJA
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 AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where applicant pleaded guilty to one charge of dangerous operation of a motor vehicle causing death and grievous bodily harm – where applicant sentenced to 18 months imprisonment, suspended after four months for an operational period of 18 months – whether a short custodial sentence was within the proper exercise of the sentencing discretion reposed in the learned sentencing judge
Criminal Code Act 1899 (Qld), s 328A
R v Balfe [1998] QCA 14, cited
R v Bussey [2003] QCA 197, cited
R v Dwyer [2008] QCA 117, applied
R v Gruenert; ex parte A-G (Qld) [2005] QCA 154, considered
R v Harris; ex part A-G (Qld) [1999] QCA 392, applied
R v Manners, ex parte A-G (Qld) (2002) 132 A Crim R 363;
[2002] QCA 301, cited
R v Price [2005] QCA 52, cited
R v Proesser [2007] QCA 61, distinguished
R v Vance; ex parte A-G (Qld) [2007] QCA 269, considered
COUNSEL:  A W Collins for the applicant
R G Martin SC for the respondent
SOLICITORS:  Giudes & Elliott for the applicant
Director of Public Prosecutions (Queensland) for the respondent
  1. de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Keane JA. I agree that the application should be refused, for those reasons.

  2. KEANE JA: On 6 June 2008 the applicant pleaded guilty to one count of dangerous operation of a motor vehicle causing death and grievous bodily harm. He was sentenced to 18 months imprisonment, suspended after four months for an operational period of 18 months. He was disqualified from holding or obtaining a driver's licence for 12 months.

  3. The applicant seeks leave to appeal against his sentence on the ground that it was manifestly excessive.

    The circumstances of the offence

  4. On 25 January 2005, at about 10.00 pm, the applicant was driving a taxi outbound from Townsville approaching the intersection of the Bruce Highway and Mount Low Parkway. Garnet William Wieden ("the deceased") was seated in the front passenger seat of the taxi. The applicant was following another vehicle which executed a right-hand turn into Mount Low Parkway. The applicant then executed his own right-hand turn. Police Constable Philip Haupt was riding his motorcycle in a…

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AGLC
R v Hart [2008] QCA 199
Case
[2008] QCA 199
Decision Date

CaseChat Overview and Summary

The case of R v Hart involved an appeal against the sentence imposed by the court. The applicant had pleaded guilty to one charge of dangerous operation of a motor vehicle causing death and grievous bodily harm. The applicant was sentenced to 18 months imprisonment, suspended after four months for an operational period of 18 months. The court was required to decide whether the imposition of a short custodial sentence was within the proper exercise of the sentencing discretion.

The legal issues at hand were whether the sentence imposed by the court was manifestly excessive and whether the applicant's fault was so serious as to require some period of actual custody. The court held that the imposition of a custodial sentence was within the sound exercise of the sentencing discretion. This was based on the Court's decisions in R v Gruenert and R v Vance; ex parte A-G (Qld), which established that the death of a human being as a result of dangerous driving is so serious that a term of imprisonment of at least 18 months should be expected save in exceptional cases. The court found that the applicant's dangerous operation of his motor vehicle also caused serious injury to Constable Haupt, which further supported the need for some period of actual custody.

The court concluded that the sentence imposed was not manifestly excessive and the application for leave to appeal against sentence should be refused. Fraser JA agreed with the reasons of Keane JA and the order proposed by his Honour. The final order was that the application for leave to appeal against sentence was refused.

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

In my respectful opinion, the imposition of a custodial sentence was within the sound exercise of the sentencing discretion. That this is so is clearly established by this Court's decisions in R v Gruenert, and R v Vance; ex parte A-G (Qld).[6] Those decisions, and the earlier decisions reviewed in them, proceed on the basis that the death of a human being as a result of dangerous driving is so serious that a term of imprisonment of at least 18 months should be expected save in exceptional cases. Usually such a sentence will involve actual custody. In this case, in addition to the death of the deceased, the applicant's dangerous operation of his motor vehicle also caused serious injury to Constable Haupt. While it is arguable that it might have been open to the learned sentencing judge fully to suspend the sentence imposed on the applicant, it cannot be said that his Honour erred in regarding the applicant's fault as so serious as to require some period of actual custody bearing in mind the tragic consequences of his offence. [6] [2007] QCA 269. Conclusion and order The sentence which was imposed was not manifestly excessive. The application for leave to appeal against sentence should be refused. FRASER JA: I agree with the reasons of Keane JA and the order proposed by his Honour.

Ratio Decidendi

Legal Principle Established

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