R v Iaria - [2008] QCA 396

SUPREME COURT OF QUEENSLAND

CITATION:

R v Iaria [2008] QCA 396

PARTIES:

R
v
IARIA, Frank
(applicant)

FILE NO/S:

CA No 246 of 2008
DC No 502 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

9 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

1 December 2008

JUDGES:

de Jersey CJ, McMurdo P and White AJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Refuse the application, and order that a warrant issue for the apprehension of the applicant, to lie in the Registry for ten days pending any necessary execution

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – applicant pleaded guilty to the dangerous operation of a motor vehicle occasioning grievous bodily harm – applicant was sentenced to two years imprisonment, suspended after three months for an operational period of two years, and disqualified from holding or obtaining a driver’s license for a period of 18 months – reckless driving directed against a comparatively vulnerable youth – whether the sentence imposed was manifestly excessive

Criminal Code 1899 (Qld), s 328A(4)(a)
Penalties and Sentences Act 1992 (Qld), s 9(2), s 9(3)

R v Bussey[2003] QCA 197, cited
R v Lacey[2005] QCA 431, cited
R v Wales[2002] QCA 463, cited

COUNSEL:

The applicant appeared on his own behalf

B G Campbell for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

JERSEY CJ: de The applicant was sentenced to two years imprisonment, suspended after three months for an operational period of two years, and disqualified from holding or obtaining a driver’s licence for a period of 18 months. He had pleaded guilty to the dangerous operation of a motor vehicle occasioning grievous bodily harm.

The applicant sought to raise a doubt about his plea, at the hearing before us, but there is no ground for thinking it was not voluntary and informed.

The applicant seeks leave to appeal, on the ground that his sentence should have been fully suspended, and that the disqualification for 18 months was unwarranted.

The applicant was 50 years of age when he committed the offence on 9 April 2007. He had a prior conviction for assault, and four drink driving offences, the most recent having occurred in 2004. (There is no suggestion alcohol played any part in this offence.)

The applicant was the groundsman of the Mossman Soccer Club. He was frustrated by disturbance of the field from time to time by youths riding trail bikes over it. If they did, then his frustration was understandable. He took pride in the way he cared for the field. The problem was his reaction in this particular case.

On the day of the offence, the applicant pursued three young men who had ridden their bikes onto the field and 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 Iaria

Details

AGLC: R v Iaria [2008] QCA 396
Case: [2008] QCA 396
Decision Date: 9 December 2008

CaseChat Overview and Summary

The court was asked to consider an appeal against sentence by the applicant, who had pleaded guilty to dangerous operation of a motor vehicle occasioning grievous bodily harm. The applicant was sentenced to two years imprisonment, suspended after three months for an operational period of two years, and disqualified from holding or obtaining a driver’s license for a period of 18 months. The applicant argued that the sentence was manifestly excessive. The court considered the principles governing appeals against sentence, and the discretion afforded to the trial judge in determining an appropriate penalty. The court concluded that the sentence was not manifestly excessive and refused the application for an appeal against sentence.

The key legal issue for the court was whether the sentence imposed was manifestly excessive. The court considered the principles governing appeals against sentence and the discretion afforded to the trial judge in determining an appropriate penalty. The court noted that the applicant had pleaded guilty to a serious offence and that the victim was a comparatively vulnerable youth. The court also considered the need to deter the applicant and others from engaging in similar behaviour. The court concluded that the sentence was within the range of penalties that could be imposed for the offence, and that it was not manifestly excessive.

Orders

Orders of the court

Refuse the application, and order that a warrant issue for the apprehension of the applicant, to lie in the Registry for ten days pending any necessary execution

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 Iaria [2008] QCA 396
PARTIES:	R v IARIA, Frank (applicant)
FILE NO/S:	CA No 246 of 2008 DC No 502 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	9 December 2008
DELIVERED AT:	Brisbane
HEARING DATE:	1 December 2008
JUDGES:	de Jersey CJ, McMurdo P and White AJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Refuse the application, and order that a warrant issue for the apprehension of the applicant, to lie in the Registry for ten days pending any necessary execution
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – applicant pleaded guilty to the dangerous operation of a motor vehicle occasioning grievous bodily harm – applicant was sentenced to two years imprisonment, suspended after three months for an operational period of two years, and disqualified from holding or obtaining a driver’s license for a period of 18 months – reckless driving directed against a comparatively vulnerable youth – whether the sentence imposed was manifestly excessive Criminal Code 1899 (Qld), s 328A(4)(a) Penalties and Sentences Act 1992 (Qld), s 9(2), s 9(3) R v Bussey[2003] QCA 197, cited R v Lacey[2005] QCA 431, cited R v Wales[2002] QCA 463, cited
COUNSEL:	The applicant appeared on his own behalf B G Campbell for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent