R v. Hodges - [2008] QCA 335

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hodges; ex parte A-G (Qld) [2008] QCA 335

PARTIES:

R
v
HODGES, Gemma Anne
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 221 of 2008
DC No 409 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Sentence by A-G (Qld)

ORIGINATING COURT:

District Court at Cairns

DELIVERED EX TEMPORE ON:

27 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

27 October 2008

JUDGES:

de Jersey CJ, White AJA and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATION TO INCREASE SENTENCE – where the respondent pleaded guilty to one count of dangerous operation of a motor vehicle when adversely affected by alcohol, causing death – where the respondent was sentenced to four and a half years imprisonment, suspended after 18 months for an operational period of five years, as well receiving a five year license disqualification – where the respondent knew that because of alcohol consumption she should not have been driving – where the respondent had no prior criminal history – where the respondent had a very minor traffic history – whether the sentence was manifestly inadequate

R v Dingle [2003] QCA 7, distinguished
R v Evans[2005] QCA 455, distinguished
R v Saltmarsh [2007] QCA 25, distinguished

COUNSEL:

M J Copley for the appellant
S J Hamlyn-Harris for the respondent

SOLICITORS:

Office of the Director of Public Prosecutions (Queensland) for the appellant
Legal Aid Queensland for the respondent

THE CHIEF JUSTICE: At a time when she was aged 35 years, the respondent caused the death of a pedestrian because of the dangerous operation of a motor vehicle at a time when she, the respondent, was adversely affected by alcohol. The offence occurred in October last year. The respondent had no prior criminal history. Her traffic history was limited to disobeying a red light 11 years earlier.

The respondent pleaded guilty and in the District Court in August this year was sentenced to four and a-half years' imprisonment suspended after 18 months for an operational period of five years. The learned Judge also imposed a five year licence disqualification. The Honourable the Attorney-General appeals on the ground of manifest inadequacy.

The deceased, her daughter and her granddaughter had been walking in the evening in an orderly way along a suburban street. There was no footpath and they were walking by the road kerbing. The street lights were operating and the weather was fine.
The respondent was driving a four wheel drive vehicle. She had been drinking at a friend's place, and was returning home. The friend's place was about 10 minutes from her house. The respondent was taking anti-depressant medication at the time and having received medical advice she knew that…

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. Hodges

Details

AGLC: R v Hodges [2008] QCA 335
Case: [2008] QCA 335
Decision Date: 27 October 2008

CaseChat Overview and Summary

The respondent in this case, Hodges, pleaded guilty to the dangerous operation of a motor vehicle while under the influence of alcohol, resulting in the death of another individual. The matter was heard in the High Court of Australia. The Attorney-General sought to appeal the sentence imposed on Hodges, arguing that it was manifestly inadequate given the gravity of the offence and the circumstances surrounding it. Hodges had admitted to knowing she should not have been driving due to her alcohol consumption and had no prior criminal history, only a minor traffic record.

The central legal issue before the court was whether the sentence imposed by the lower court was manifestly inadequate. The court considered the nature of the offence, the circumstances of the case, and the need for both general and specific deterrence. The Attorney-General argued that the sentence did not reflect the seriousness of the crime, particularly given the loss of life and the respondent's acknowledgment of her intoxicated state at the time of the incident.

The High Court found that the sentence, while lenient, was not manifestly inadequate. The court recognised the respondent's lack of prior criminal history and her acknowledgment of her wrongdoing as factors that the lower court could have reasonably considered in arriving at the sentence. The court emphasised the importance of proportionality and the discretion afforded to the sentencing judge, concluding that the sentence imposed was within the acceptable range for this type of offence. As a result, the appeal was dismissed, and the original sentence remained in place.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Hodges; ex parte A-G (Qld) [2008] QCA 335
PARTIES:	R v HODGES, Gemma Anne (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 221 of 2008 DC No 409 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Sentence by A-G (Qld)
ORIGINATING COURT:	District Court at Cairns
DELIVERED EX TEMPORE ON:	27 October 2008
DELIVERED AT:	Brisbane
HEARING DATE:	27 October 2008
JUDGES:	de Jersey CJ, White AJA and McMeekin J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATION TO INCREASE SENTENCE – where the respondent pleaded guilty to one count of dangerous operation of a motor vehicle when adversely affected by alcohol, causing death – where the respondent was sentenced to four and a half years imprisonment, suspended after 18 months for an operational period of five years, as well receiving a five year license disqualification – where the respondent knew that because of alcohol consumption she should not have been driving – where the respondent had no prior criminal history – where the respondent had a very minor traffic history – whether the sentence was manifestly inadequate R v Dingle [2003] QCA 7, distinguished R v Evans[2005] QCA 455, distinguished R v Saltmarsh [2007] QCA 25, distinguished
COUNSEL:	M J Copley for the appellant S J Hamlyn-Harris for the respondent
SOLICITORS:	Office of the Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent