R v Hey; ex parte A-G (Qld) - [2006] QCA 23

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hey; ex parte A-G (Qld) [2006] QCA 23

PARTIES:

R
v
HEY, Brent William
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 271 of 2005
DC No 535 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

10 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2005

JUDGES:

McMurdo P, Keane JA and Chesterman J
Separate reasons for judgment of each member of the Court, McMurdo P and Keane JA concurring as to the order made, Chesterman J dissenting

ORDER:

Sentence appeal by Attorney-General dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - respondent pleaded guilty to one count of dangerous operation of a motor vehicle causing death whilst adversely affected by alcohol - sentenced to six and a half years imprisonment with a recommendation for post-prison community-based release after two and a half years and licence disqualified absolutely - maximum penalty for offence 10 years imprisonment - respondent had been drinking alcohol with friends - failed to reduce speed at intersection with a "Give Way" sign and drove straight through intersection - police inspection showed motor vehicle in unsatisfactory mechanical condition with decreased braking efficiency - respondent claimed that he tried to slow down and that his brakes had become "weird" and "spongy" on the night of the offence - relatively minor but concerning criminal history - traffic history including five previous convictions for driving under the influence of alcohol, three previous convictions for disqualified driving and two convictions for careless driving - disqualified from driving at the time of the offence - early plea of guilty and co-operation with authorities - references tended attesting to respondent's genuine remorse - insight into alcohol addiction and stated desire to reform - whether sentence manifestly inadequate

R v Balic [2005] QCA 212; CA No 57 of 2005, 17 June 2005, cited
R v Conquest; ex parte A-G (Qld) [1995] QCA 567; CA No 395 of 1995, 19 December 1995, considered
R v Frost; ex parte A-G (Qld) [2004] QCA 309; CA No 142 of 2004, 27 August 2004, cited
R v Gray [2005] QCA 280; CA No 129 of 2005, 12 August 2005, cited
R v Hoad [2005] QCA 92; CA No 434 of 2004, 8 April 2005, cited
R v Smith [2005] QCA 26; CA No 380 of 2004, 14 February 2005, cited
R v Smout [2005] QCA 120; CA No 31 of 2005, 15 April 2005, cited
R v Tabakovic [2005] QCA 90; CA No 3 of 2005, 8 April 2005, cited
R v Vessey; ex parte A-G (Qld) [1996] QCA 11; CA No 453 of 1995, 16 February 1996, considered
R v Wilde; ex parte A-G (Qld) [2002] QCA 501; CA No 283…

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.

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Details

Case: [2006] QCA 23
Decision Date: 10 February 2006

CaseChat Overview and Summary

The case of R v Hey; ex parte A-G (Qld) involved the Attorney-General appealing against the sentence imposed on the respondent who had pleaded guilty to a charge of dangerous operation of a motor vehicle causing death while adversely affected by alcohol. The respondent was sentenced to six and a half years imprisonment, with a recommendation for community-based release after serving two and a half years, and a life-long absolute disqualification from holding a driver's licence. The maximum penalty for this offence is 10 years imprisonment. The respondent had a history of alcohol-related driving offences, and on the night of the incident, he was driving in an unsatisfactory mechanical condition, which contributed to the fatal accident.

The primary legal issue before the court was whether the sentence imposed was manifestly inadequate. The court considered the severity of the offence, the respondent's history of alcohol-related driving offences, the circumstances of the incident, and the respondent's personal circumstances, including his early guilty plea, cooperation with authorities, and evidence of genuine remorse. The court referenced several previous cases to guide its analysis, including R v Frost; ex parte A-G (Qld), R v Gray, and R v Smout, among others. The court noted the maximum penalty for the offence and compared the sentence imposed with those in similar cases.

After considering the evidence and arguments presented, the court determined that the sentence was not manifestly inadequate. The court found that the sentence reflected the seriousness of the offence and the respondent's history, while also taking into account his early guilty plea and remorse. The court held that the sentence was within the range of sentences that could be considered appropriate for the offence, and therefore dismissed the appeal against the sentence. The sentence imposed by the primary judge was upheld.

Orders

Orders of the court

Sentence appeal by Attorney-General dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Hey; ex parte A-G (Qld) [2006] QCA 23
PARTIES:	R v HEY, Brent William (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 271 of 2005 DC No 535 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	10 February 2006
DELIVERED AT:	Brisbane
HEARING DATE:	23 November 2005
JUDGES:	McMurdo P, Keane JA and Chesterman J Separate reasons for judgment of each member of the Court, McMurdo P and Keane JA concurring as to the order made, Chesterman J dissenting
ORDER:	Sentence appeal by Attorney-General dismissed
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - respondent pleaded guilty to one count of dangerous operation of a motor vehicle causing death whilst adversely affected by alcohol - sentenced to six and a half years imprisonment with a recommendation for post-prison community-based release after two and a half years and licence disqualified absolutely - maximum penalty for offence 10 years imprisonment - respondent had been drinking alcohol with friends - failed to reduce speed at intersection with a "Give Way" sign and drove straight through intersection - police inspection showed motor vehicle in unsatisfactory mechanical condition with decreased braking efficiency - respondent claimed that he tried to slow down and that his brakes had become "weird" and "spongy" on the night of the offence - relatively minor but concerning criminal history - traffic history including five previous convictions for driving under the influence of alcohol, three previous convictions for disqualified driving and two convictions for careless driving - disqualified from driving at the time of the offence - early plea of guilty and co-operation with authorities - references tended attesting to respondent's genuine remorse - insight into alcohol addiction and stated desire to reform - whether sentence manifestly inadequate R v Balic [2005] QCA 212; CA No 57 of 2005, 17 June 2005, cited R v Conquest; ex parte A-G (Qld) [1995] QCA 567; CA No 395 of 1995, 19 December 1995, considered R v Frost; ex parte A-G (Qld) [2004] QCA 309; CA No 142 of 2004, 27 August 2004, cited R v Gray [2005] QCA 280; CA No 129 of 2005, 12 August 2005, cited R v Hoad [2005] QCA 92; CA No 434 of 2004, 8 April 2005, cited R v Smith [2005] QCA 26; CA No 380 of 2004, 14 February 2005, cited R v Smout [2005] QCA 120; CA No 31 of 2005, 15 April 2005, cited R v Tabakovic [2005] QCA 90; CA No 3 of 2005, 8 April 2005, cited R v Vessey; ex parte A-G (Qld) [1996] QCA 11; CA No 453 of 1995, 16 February 1996, considered R v Wilde; ex parte A-G (Qld) [2002] QCA 501; CA No 283…