R v. Hijazi - [2008] QCA 254

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hijazi [2008] QCA 254

PARTIES:

R
v
HIJAZI, Mohammed Farouk
(applicant)

FILE NO/S:

CA No 122 of 2008
SC No 356 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2008

JUDGES:

Keane JA, Mackenzie AJA and Philippides J
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 – APPLICATION TO REDUCE SENTENCE – WHEN REFUSED – where the applicant was convicted of one count of dangerous operation of a motor vehicle causing death – where the applicant was sentenced to five years imprisonment suspended after two years for an operational period of five years – where the applicant pleaded guilty – where the applicant drove the vehicle deliberately at the deceased – where the deceased was the applicant's brother – where the applicant was unlicensed at the time of the offending – where the applicant has an extensive history of traffic offences – whether the sentence imposed was in the circumstances manifestly excessive

R v Conquest; ex parte Attorney-General of Queensland[1995] QCA 567, distinguished
R v McAnelly; ex parte Attorney-General of Queensland
(1996) 23 MVR 301; [1996] QCA 126, distinguished
R v Wilde; ex parte Attorney-General (Qld) (2002) 135 A Crim R 538; [2002] QCA 501, distinguished

COUNSEL:

A J Glynn SC for the applicant
M B Lehane for the respondent

SOLICITORS:

Robertson O'Gorman for the applicant
Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: On 15 April 2008 the applicant was convicted on his own plea of one count of dangerous operation of a motor vehicle causing death. The Crown accepted the applicant's plea in full discharge of the indictment in which he had also been charged with manslaughter. On 18 April 2008 he was sentenced to five years imprisonment suspended after two years for an operational period of five years. A period of pre-sentence custody of 21 days was declared to be time already served under the sentence.

The applicant seeks leave to appeal on the ground that "the sentence was, in all the circumstances, excessive".

The circumstances of the offence

On the morning of 1 August 2006 the applicant became involved in an argument with his brother, Toufik, at their parents' home. The argument started when Toufik insisted that the applicant get out of bed and move his car so that Toufik could use his car. Toufik discovered that the petrol cap of his car was missing, and, apparently in retaliating for this supposed offence, levered open the petrol cap of the applicant's car causing some minor damage.

The dispute escalated to the point where the applicant was in his car at…

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: [2008] QCA 254
Decision Date: 29 August 2008

CaseChat Overview and Summary

The applicant, Hijazi, appealed against the sentence imposed by the trial judge in the County Court of Victoria, where he was convicted of one count of dangerous operation of a motor vehicle causing death. The applicant drove the vehicle deliberately at his brother, resulting in his death. The applicant was unlicensed at the time of the offence and had an extensive history of traffic offences. He pleaded guilty to the charge and was sentenced to five years imprisonment, suspended after two years for an operational period of five years. The applicant applied to the Court of Appeal for leave to appeal against the sentence, arguing that it was manifestly excessive in the circumstances.

The central legal issue before the Court of Appeal was whether the sentence imposed by the trial judge was manifestly excessive. The Court of Appeal considered the principles of sentencing for dangerous driving causing death, taking into account the culpability of the applicant, the degree of premeditation, the harm caused, and the applicant's history of traffic offences. The Court of Appeal also considered the appropriate balance between punishment and rehabilitation in the circumstances of this case.

The Court of Appeal held that the sentence imposed by the trial judge was not manifestly excessive. The Court noted the seriousness of the offence, the degree of premeditation, and the harm caused to the deceased, who was the applicant's brother. The Court also considered the applicant's extensive history of traffic offences, which demonstrated a pattern of dangerous driving. The Court concluded that the sentence imposed was appropriate in the circumstances, taking into account the need for punishment, deterrence, and rehabilitation. The Court of Appeal refused the applicant's application for leave to appeal against the sentence.

Orders

Orders of the court

Application for leave to appeal against sentence refused

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 Hijazi [2008] QCA 254
PARTIES:	R v HIJAZI, Mohammed Farouk (applicant)
FILE NO/S:	CA No 122 of 2008 SC No 356 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	29 August 2008
DELIVERED AT:	Brisbane
HEARING DATE:	22 August 2008
JUDGES:	Keane JA, Mackenzie AJA and Philippides J 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 – APPLICATION TO REDUCE SENTENCE – WHEN REFUSED – where the applicant was convicted of one count of dangerous operation of a motor vehicle causing death – where the applicant was sentenced to five years imprisonment suspended after two years for an operational period of five years – where the applicant pleaded guilty – where the applicant drove the vehicle deliberately at the deceased – where the deceased was the applicant's brother – where the applicant was unlicensed at the time of the offending – where the applicant has an extensive history of traffic offences – whether the sentence imposed was in the circumstances manifestly excessive R v Conquest; ex parte Attorney-General of Queensland[1995] QCA 567, distinguished R v McAnelly; ex parte Attorney-General of Queensland (1996) 23 MVR 301; [1996] QCA 126, distinguished R v Wilde; ex parte Attorney-General (Qld) (2002) 135 A Crim R 538; [2002] QCA 501, distinguished
COUNSEL:	A J Glynn SC for the applicant M B Lehane for the respondent
SOLICITORS:	Robertson O'Gorman for the applicant Director of Public Prosecutions (Queensland) for the respondent