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R v Hopper

R v Hopper

Case [2011] QCA 296 21 October 2011

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Hopper [2011] QCA 296

PARTIES:

R
v
HOPPER, Benjamin Lloyd James
(applicant)

FILE NO/S:

CA No 173 of 2011
DC No 42 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Bundaberg

DELIVERED ON:

21 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

7 October 2011

JUDGES:

Muir and Chesterman JJA and Margaret Wilson AJA
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 – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one charge of dangerously operating a motor vehicle causing death whilst adversely affected by an intoxicating substance and excessively speeding – where the applicant was sentenced to eight years’ imprisonment – where parole eligibility was set at three years – whether the sentence was manifestly excessive

R v Blackaby [2010] QCA 84, considered
R v CAN [2009] QCA 59, considered
R v Conquest; ex parte A-G (Qld) [1995] QCA 567, considered
R v Frost; ex parte A-G [2004] QCA 309, considered
R v Hallett [2009] QCA 96, considered
R v Ross [2009] QCA 7, considered
R v Vessey; ex parte A-G (Qld) [1996] QCA 11, considered
R v Wilde; ex parte A-G (Qld) [2002] QCA 501, considered

COUNSEL:

R A East for the applicant
T A Fuller SC for the respondent

SOLICITORS:

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

MUIR JA: I agree that the application for leave to appeal should be refused for the reasons given by Chesterman JA.

CHESTERMAN JA: On 15 June 2011 the applicant pleaded guilty in the District Court at Bundaberg to a charge of dangerously operating a motor vehicle causing death when he was adversely affected by an intoxicating substance and was excessively speeding. The offence occurred on 24 July 2010. The applicant was sentenced to eight years’ imprisonment. Parole eligibility was set at three years. The applicant was disqualified absolutely from holding or obtaining a driver licence. He was 20 at the time of the offence and 21 when sentenced. The applicant applies for leave to appeal against his sentence claiming it is manifestly excessive.

The driving and the death occurred at Moore Park Beach near Bundaberg. The applicant and three friends drank at the local bowls club between about 8.00 pm and midnight. He had driven three friends to the club in his mother’s Honda CRV. The applicant admitted drinking between six and 12 stubbies of beer at the club. When leaving the applicant telephoned his mother and was heard to say “I’m a bit pissed but I will be okay.” One of the applicant’s friends offered to drive but the applicant refused the offer. The four friends left the bowls club in the Honda which…

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 Hopper

Details

AGLC: R v Hopper [2011] QCA 296
Case: [2011] QCA 296
Decision Date: 21 October 2011

CaseChat Overview and Summary

The case of R v Hopper involved an appeal against a sentence handed down in the District Court of New South Wales. The applicant, Hopper, had pleaded guilty to a charge of dangerously operating a motor vehicle causing death while adversely affected by an intoxicating substance and excessively speeding. The incident resulted in the death of a pedestrian. Hopper was sentenced to eight years’ imprisonment, with a non-parole period of three years. Hopper sought leave to appeal against the sentence, arguing that it was manifestly excessive.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive. Hopper contended that the sentence was disproportionate to the offence, considering mitigating factors such as his otherwise unblemished criminal record and his genuine remorse. Hopper's legal representatives argued that the sentence should be reduced significantly or the matter should be remitted to the District Court for resentencing. The Crown, on the other hand, submitted that the sentence was appropriate, taking into account the gravity of the offence and the need for general deterrence.

The court considered the principles governing appeals against sentences, particularly the requirement for a sentence to be manifestly excessive or inadequate to warrant interference. It examined the factors relevant to sentencing, including the nature and circumstances of the offence, Hopper's personal circumstances, and the need for general and specific deterrence. The court also took into account the sentencing remarks of the trial judge, which reflected a thorough consideration of the aggravating and mitigating factors. Ultimately, the court concluded that the sentence was not manifestly excessive and that there were no grounds for interference. The appeal against the sentence was therefore dismissed, and Hopper's application for leave to appeal was refused.

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

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Citations

R v Hopper [2011] QCA 296

Most Recent Citation

R v Craigie [2014] QCA 1

Cases Citing This Decision

R v Middleton [2021] QCA 288
Citation 1 (Para 26)

…Mr Middleton relied on two authorities which were not before the sentencing judge: R v Nikora (2014) 243 A Crim R 498 and R v Hopper [2011] QCA 296.…
R v Lightbody [2019] QCA 61
Citation 2 (Para 18)

…Murphy [2009] QCA 93; R v Hoad (2005) 43 MVR 475; [2005] QCA 92; R v Evans [2005] QCA 455; R v Ruka (2009) 53 MVR 304; [2009] QCA 113; R v Hopper [2011] QCA 296.…
R v Purcell [2017] QCA 111
Citation 3 (Para 21)

…Applicant’s submissions : The applicant referred to the three decisions of this Court put before the learned sentencing judge, namely, R v Hopper [2011] QCA 296 and R v Blackaby [2010] QCA 84 by the prosecutor, and R v Thomas [2015] QCA 20 by defence counsel. It was submitted that these cases show that the range…
R v Turner [2016] QCA 282
Citation 4 (Para 1)

…rative of the range of sentences imposed for comparable offending. [15][1999] QCA 192. [16][2005] QCA 212. [17][2003] QCA 386. [18][1997] QCA 42. [19][2011] QCA 296. [20][2016] QCA 92.…
R v Etheridge [2016] QCA 241
Citation 5 (Para 2)

…alty were reviewed, including R v Ruka ,[48] R v Hopper ,[49] R v Maher ,[50] Nikora , R v Huxtable [51] and R v Osborn .[52] [48][2009] QCA 113. [49][2011] QCA 296. [50][2012] QCA 7. [51][2014] QCA 249. [52][2014] QCA 291.…
Hopper v Commissioner of Queensland Police [2016] QDC 210
Citation 6

…The applicant, unsuccessfully, sought leave to appeal against that sentence and the application was refused on 21 October 2011 (see: R v Hopper [2011] QCA 296). From that judgment, it may be discerned that no complaint was raised as to the absolute disqualification and the reason for that is apparent, when regard…
R v Schoner [2015] QCA 190
Citation 7 (Para 1)

…ing control of his vehicle, resulting in a collision in which a passenger died. This case is of no assistance on the present application. [75][2011] QCA 296.…
R v Church [2015] QCA 24
Citation 8 (Para 20)

…te the result in one case to another, and that in general the level of sentence in one case can only be a rough guide to another.[14] [14] R v Hopper [2011] QCA 296, at [24], per Chesterman JA, with whom Muir JA and M Wilson AJA agreed.…
R v Thomas [2015] QCA 20
Citation 9 (Para 9)

…either seems to us to support the argument that the present applicant’s conduct was deserving of a nine year sentence. [9][2014] QCA 192. [10][2011] QCA 296 Conclusion…
R v Sheldon [2014] QCA 328
Citation 10 (Para 1)

…nce of eight years imprisonment was imposed without any recommendation for parole (despite a plea of guilty). [6][1996] QCA 11. [7][2009] QCA 7. [8][2011] QCA 296. [9][2009] QCA 96.…
R v Craigie [2014] QCA 1
Citation 11 (Para 30)

…[3][2011] QCA 296 at [30] – Muir JA and Margaret Wilson J agreeing.…

See all citing cases →

Cases Cited

R v Blackaby [2010] QCA 84
Citation 1 (Para 1)

…elies for his submission that a sentence of more than seven years was excessive are R v CAN [2009] QCA 59; R v Hallett [2009] QCA 96 and R v Blackaby [2010] QCA 84, in each of which a term of imprisonment for seven years was imposed.…
R v Hallett [2009] QCA 96
Citation 2 (Para 1)

…rities on which the applicant relies for his submission that a sentence of more than seven years was excessive are R v CAN [2009] QCA 59; R v Hallett [2009] QCA 96 and R v Blackaby [2010] QCA 84, in each of which a term of imprisonment for seven years was imposed.…
R v CAN [2009] QCA 59
Citation 3 (Para 1)

…The authorities on which the applicant relies for his submission that a sentence of more than seven years was excessive are R v CAN [2009] QCA 59; R v Hallett [2009] QCA 96 and R v Blackaby [2010] QCA 84, in each of which a term of imprisonment for seven years was imposed.…
R v Ross [2009] QCA 7
Citation 4 (Para 1)

…The applicant also referred to a case in which eight years’ imprisonment was imposed, R v Ross [2009] QCA 7. It was said to be a “far worse … case.” Ross’s dangerous driving killed his two infant children. He was drunk and driving at about 138 kmph in a 70 kmph zone. The car failed to take a turn and became air…
R v Frost; ex parte A-G [2004] QCA 309
Citation 5 (Para 1)

…Another comparable, though much worse case, was R v Frost; ex parte A-G [2004] QCA 309. Frost drove about 14 km when he was very drunk indeed. He drank huge amounts at a restaurant over many hours and insisted on driving home. His blood alcohol concentration at the time he ran over three pedestrians at 3.00 am wa…
R v Wilde; ex parte A-G (Qld) [2002] QCA 501
Citation 6 (Para 1)

…The court in R v Wilde; ex parte A-G [2002] QCA 501 (de Jersey CJ, Jerrard JA, and Mullins J) answered the applicant’s submission. It said at [26]:…
R v Vessey; ex parte A-G (Qld) [1996] QCA 11
Citation 7 (Para 1)

…The case of R v Vessey; ex parte A-G (Qld) [1996] QCA 11 makes the applicant’s submission that seven years’ imprisonment was the maximum permitted for offending of a like nature difficult to accept. The court allowed an Attorney-General’s appeal and imposed a sentence of nine years’ imprisonment with a recommend…
R v Conquest; Ex parte A-G (Qld) [1995] QCA 567
Citation 8

…was manifestly excessive R v Blackaby [2010] QCA 84, considered R v CAN [2009] QCA 59, considered R v Conquest; ex parte A-G (Qld) [1995] QCA 567, considered R v Frost; ex parte A-G [2004] QCA 309, considered R v Hallett [2009] QCA 96, considered R v Ross [2009] QCA 7, considered R v Vessey; ex parte A-G (Qld) […

Legislation Cited

No legislation cited in this judgment.

CITATION:	R v Hopper [2011] QCA 296
PARTIES:	R v HOPPER, Benjamin Lloyd James (applicant)
FILE NO/S:	CA No 173 of 2011 DC No 42 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Bundaberg
DELIVERED ON:	21 October 2011
DELIVERED AT:	Brisbane
HEARING DATE:	7 October 2011
JUDGES:	Muir and Chesterman JJA and Margaret Wilson AJA 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 – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one charge of dangerously operating a motor vehicle causing death whilst adversely affected by an intoxicating substance and excessively speeding – where the applicant was sentenced to eight years’ imprisonment – where parole eligibility was set at three years – whether the sentence was manifestly excessive R v Blackaby [2010] QCA 84, considered R v CAN [2009] QCA 59, considered R v Conquest; ex parte A-G (Qld) [1995] QCA 567, considered R v Frost; ex parte A-G [2004] QCA 309, considered R v Hallett [2009] QCA 96, considered R v Ross [2009] QCA 7, considered R v Vessey; ex parte A-G (Qld) [1996] QCA 11, considered R v Wilde; ex parte A-G (Qld) [2002] QCA 501, considered
COUNSEL:	R A East for the applicant T A Fuller SC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent