R v Johnson - [2011] QCA 78

SUPREME COURT OF QUEENSLAND

CITATION:

R v Johnson [2011] QCA 78

PARTIES:

R
v
JOHNSON, Joshua Raymond
(applicant)

FILE NO/S:

CA No 263 of 2010
DC No 2264 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 April 2011

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2011

JUDGES:

Fraser JA, Atkinson and Peter Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The application for leave to appeal be granted;1.

The appeal be allowed; and 2.

In respect of the sentence imposed for the charge the subject of the indictment, the term of imprisonment be varied to four years; that term to be suspended after the applicant has served a period of 12 months, with an operational period of four years.3.

CATCHWORDS:

CRIMINAL LAW − APPEAL AND NEW TRIAL − APPEAL AGAINST SENTENCE − PARTICULAR OFFENCES − DRIVING OFFENCES − GROUNDS FOR INTERFERENCE − SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE − where applicant convicted of dangerous operation of a motor vehicle causing grievous bodily harm while adversely affected by alcohol – where applicant had blood alcohol concentration of 0.135 per cent − where grievous bodily harm was caused to two persons – where applicant on bail for driving a motor vehicle whilst his blood alcohol concentration exceeded the general alcohol limit – where applicant 17 years old at the time of the offence – where applicant had history of childhood disadvantage and difficulty adjusting to family relocation – where applicant pleaded guilty – where applicant sentenced to five years imprisonment suspended after 18 months – whether in all the circumstances the sentence imposed was manifestly excessive

R v Blanch [2008] QCA 253, distinguished
R v Gray [2005] QCA 280, considered
R v Hine [2002] QCA 212, applied
R v Hook [2006] QCA 458, considered
R v Quinn [2003] QCA 417, considered
R v Simpson [2003] QCA 100, considered

COUNSEL:

The applicant appeared on his own behalf
M J Copley SC for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

[1] FRASER JA: I have had the advantage of reading the reasons for judgment of Peter Lyons J. I agree with those reasons and with the orders proposed by his Honour.

[2] ATKINSON J: I agree with the reasons for judgment of Peter Lyons J and the orders proposed by his Honour.

[3] PETER LYONS J: On 3 November 2010 Mr Johnson was sentenced on his plea of guilty to a charge of dangerously operating a motor vehicle, causing grievous bodily harm to two persons, at a time when he was intoxicated. He was sentenced to a term of imprisonment of five years, suspended after 18 months for an operational period of five years, and was disqualified from holding a driver’s licence for a period of two years.

[4] At the same time, 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 Johnson

Details

AGLC: R v Johnson [2011] QCA 78
Case: [2011] QCA 78
Decision Date: 21 April 2011

CaseChat Overview and Summary

In this case, the applicant, Johnson, appealed against the sentence imposed by the court after being convicted of dangerous operation of a motor vehicle causing grievous bodily harm while adversely affected by alcohol. The case was heard in the High Court of Australia. The applicant, who was 17 years old at the time of the offence, had a blood alcohol concentration of 0.135 per cent and caused grievous bodily harm to two persons. Additionally, the applicant was on bail for a previous offence of driving a motor vehicle while his blood alcohol concentration exceeded the general alcohol limit. The applicant had a history of childhood disadvantage and difficulty adjusting to family relocation. Despite these mitigating factors, the court sentenced the applicant to five years imprisonment, suspended after 18 months.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive in all the circumstances. The court noted that the sentence imposed was severe, and that the applicant's age, history of disadvantage, and previous offending were all relevant mitigating factors. The court also noted that the harm caused to the victims was significant, but that the applicant had pleaded guilty and expressed remorse. The court concluded that the sentence imposed was manifestly excessive and that a lower sentence would be appropriate.

The court granted leave to appeal and allowed the appeal, varying the sentence imposed for the charge. The court ordered that the term of imprisonment be reduced to four years, to be suspended after the applicant has served a period of 12 months, with an operational period of four years. The court emphasised the importance of considering all the circumstances of the case, including the mitigating factors, in determining an appropriate sentence. This decision highlights the need for courts to carefully consider the individual circumstances of each case when imposing a sentence.

Orders

Orders of the court

The application for leave to appeal be granted;1.

The appeal be allowed; and 2.

In respect of the sentence imposed for the charge the subject of the indictment, the term of imprisonment be varied to four years; that term to be suspended after the applicant has served a period of 12 months, with an operational period of four years.3.

Background

Background to the litigation

Full text does not contain this section.

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 Johnson [2011] QCA 78
PARTIES:	R v JOHNSON, Joshua Raymond (applicant)
FILE NO/S:	CA No 263 of 2010 DC No 2264 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	21 April 2011
DELIVERED AT:	Brisbane
HEARING DATE:	11 April 2011
JUDGES:	Fraser JA, Atkinson and Peter Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	The application for leave to appeal be granted;1. The appeal be allowed; and 2. In respect of the sentence imposed for the charge the subject of the indictment, the term of imprisonment be varied to four years; that term to be suspended after the applicant has served a period of 12 months, with an operational period of four years.3.
CATCHWORDS:	CRIMINAL LAW − APPEAL AND NEW TRIAL − APPEAL AGAINST SENTENCE − PARTICULAR OFFENCES − DRIVING OFFENCES − GROUNDS FOR INTERFERENCE − SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE − where applicant convicted of dangerous operation of a motor vehicle causing grievous bodily harm while adversely affected by alcohol – where applicant had blood alcohol concentration of 0.135 per cent − where grievous bodily harm was caused to two persons – where applicant on bail for driving a motor vehicle whilst his blood alcohol concentration exceeded the general alcohol limit – where applicant 17 years old at the time of the offence – where applicant had history of childhood disadvantage and difficulty adjusting to family relocation – where applicant pleaded guilty – where applicant sentenced to five years imprisonment suspended after 18 months – whether in all the circumstances the sentence imposed was manifestly excessive R v Blanch [2008] QCA 253, distinguished R v Gray [2005] QCA 280, considered R v Hine [2002] QCA 212, applied R v Hook [2006] QCA 458, considered R v Quinn [2003] QCA 417, considered R v Simpson [2003] QCA 100, considered
COUNSEL:	The applicant appeared on his own behalf M J Copley SC for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent