R v Hess - [2002] QCA 184

[2002] QCA 184

COURT OF APPEAL

McPHERSON JA
MACKENZIE J
ATKINSON J

CA No 76 of 2002

THE QUEEN

WAYNE RICHARD HESS Applicant

BRISBANE

..DATE 30/05/2002

JUDGMENT

McPHERSON JA: In February 2002, the applicant pleaded guilty in the District Court of Brisbane to an indictment charging one count of dangerously operating a motor vehicle contrary to section 328A of the Criminal Code, with two circumstances of aggravation in that he was intoxicated and that he had previously been convicted of a similar such offence in 1990.

He also pleaded guilty to two charges of summary offences of failing to provide his correct name and address and failing to take proper precautions with respect to a syringe, which was found in the vehicle.

In respect of the count under section 328A, he was sentenced to imprisonment for two years with a recommendation for parole after nine months. No further punishment was imposed in respect of the two summary offences.

At the time the offence was committed, the applicant was on parole after serving part of a sentence of five and a-half years for an offence of wounding with intent to disfigure for which he had been convicted in 1998. On his being arrested for the subject offences, he was returned to custody to serve the remainder of that sentence in terms of which his full-time discharge date was or would have been 20 April 2003. However, under s.156A of the Penalties and Sentences Act, the learned sentencing Judge was required to and did make the sentence of two years cumulative upon the balance of the existing five and a-half year sentence that the applicant was bound to serve out in full.

The applicant complains that the two year sentence with the recommendation for parole mentioned is excessive and urges that the sentence should have been of the order of 18 months wholly or partly suspended.

The circumstances of the offence under section 328A are summarised in the written outlines in the following way. The date on which the offence occurred was Sunday, 1 April 2001. At about 5.20 p.m. on that day, police officers conducting a mobile patrol in the Moorooka area, while driving an unmarked car and travelling inbound on Ipswich Road, saw a Commodore vehicle driven by the applicant overtake them in the police vehicle. The Commodore vehicle was travelling at between 80 and 90 kilometres an hour in a 60 kph zone. The police activated their lights and siren and pursued the vehicle being driven by the applicant.

As the applicant's vehicle arrived at the intersection of Ipswich Road and Gow Street, it drove straight through a red light. It then travelled further along Ipswich Road to the intersection of that road with Beaudesert Road. At that point, the Commodore stopped and the police vehicle pulled up alongside it. The police told the applicant to pull over. Instead, he accelerated his vehicle through the intersection and across and in front of the police vehicle. He then…

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 Hess

Details

AGLC: R v Hess [2002] QCA 184
Case: [2002] QCA 184
Decision Date: 30/05/2002

CaseChat Overview and Summary

In February 2002, Wayne Richard Hess pleaded guilty in the District Court of Brisbane to dangerously operating a motor vehicle, which included two aggravating circumstances of intoxication and a prior conviction for a similar offence. Hess was also charged with two summary offences related to providing false identification and failing to properly secure a syringe found in his vehicle. Hess was sentenced to two years in prison for the dangerous driving charge, with a recommendation for parole after nine months. No additional punishment was imposed for the summary offences. Hess, who was already on parole for a previous conviction, argued that the two-year sentence was excessive and should have been 18 months, possibly suspended. The court examined the circumstances of the offence, which involved Hess driving at high speeds, running red lights, evading police, and striking a police officer with his vehicle. The court upheld the sentence, finding that Hess's dangerous driving was deliberate and reckless, particularly as he was under the influence of alcohol. The court noted that the sentence was lower than it might have been due to Hess's existing sentence. The Court of Appeal dismissed Hess's application for leave to appeal against the sentence.

Orders