R v Itshaky - [2019] QCA 168

[2019] QCA 168

COURT OF APPEAL

MORRISON JA
PHILIPPIDES JA
BODDICE J

CA No 1 of 2019
DC No 2339 of 2018

THE QUEEN

ITSHAKY, Omer Shmuel Applicant

BRISBANE

FRIDAY, 30 AUGUST 2019

JUDGMENT

MORRISON JA: I will ask Justice Boddice to give his reasons first.

BODDICE J: The applicant seeks leave to appeal a sentence of five years imprisonment, suspended after serving 18 months for an operational period of five years, imposed in the District Court on 7 December 2018 for one count of dangerous operation of a motor vehicle causing death while adversely affected by an intoxicating substance. The applicant had pleaded guilty to that offence on 12 October 2018.

The sole ground of appeal, should leave be given, is that the sentence was manifestly excessive in all of the circumstances. The manifest excess is said to arise not from the head sentence of five years imprisonment but from the requirement that the applicant serve 18 months of actual imprisonment before suspension of that sentence.

The offence was committed on 5 November 2017. The applicant, an Israeli citizen, was aged 23 years at the time of the offence, having been born on 7 May 1994. He had no prior criminal history and a very limited traffic history.

The victim was a pedestrian who was walking along the side of a road in central Queensland in the early hours of the morning. He died after being struck by the applicant’s vehicle, which failed to negotiate a bend, drifting off the roadway and striking the deceased before travelling across a traffic island into a culvert on the side of the road.

The agreed statement of facts recorded that the applicant had completed a shift at work between 10 and 10.30 pm on the previous evening. He commenced drinking at a bar before attending a nightclub with friends. The applicant then decided to drive his van home. A breath analysis undertaken after the incident recorded the applicant as having a blood alcohol content of 0.12 per cent.

Sentencing remarks

The sentencing judge acknowledged the applicant had cooperated with the administration of justice, saving the cost of a trial. The sentencing judge also acknowledged that the applicant was a young man with a very minor traffic history who had intended to return to Israel to commence university studies. At the time of the offence, the applicant was undertaking a gap year in Australia, having completed compulsory military service in Israel.

The sentencing judge noted that the deceased was struck after the applicant’s vehicle failed to negotiate a gentle right-hand curve in the road. There was no evidence of braking prior to the incident. Witnesses had observed that the applicant’s vehicle had not been driving straight, was swerving across the road prior to the incident and that the applicant smelt of alcohol. The applicant told those witnesses he had fallen asleep and had had “a couple of drinks”.

The sentencing judge noted that the applicant initially lied to police about whether he…

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 Itshaky

Details

AGLC: R v Itshaky [2019] QCA 168
Case: [2019] QCA 168
Decision Date: 30 AUGUST 2019

CaseChat Overview and Summary

The case of R v Itshaky was heard in the Queensland Court of Appeal. The applicant, Omer Shmuel Itshaky, was appealing the sentence imposed by the District Court for dangerous operation of a motor vehicle causing death while adversely affected by an intoxicating substance. The sentence was five years imprisonment, suspended after serving 18 months for an operational period of five years. The applicant argued that the sentence was manifestly excessive, particularly the requirement to serve 18 months in custody.

The legal issue before the Court was whether the sentence imposed by the District Court was manifestly excessive. The Court had to consider whether the sentence was unreasonable or plainly unjust, and whether it demonstrated a failure to properly exercise the sentencing discretion.

The Court found that the sentence was not manifestly excessive. The Court considered the circumstances of the offence, the applicant's personal circumstances, and comparable authorities. The Court noted that the applicant had no prior criminal history, had cooperated with the administration of justice, and had expressed remorse. However, the Court found that the requirement to serve 18 months in custody was appropriate in the context of the offence and the applicant's circumstances. The Court held that another judge may have imposed a lesser period of actual imprisonment, but that did not make the sentence manifestly excessive.

The Court refused the application for leave to appeal against sentence.

Orders