R v Kirby; Ex parte A-G (Qld) - [2009] QCA 35

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kirby; ex parte A-G (Qld) [2009] QCA 35

PARTIES:

R
v
KIRBY, Brendan Alfred
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 341 of 2008
DC No 1503 of 2008
DC No 3061 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

27 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2009

JUDGES:

Holmes, Muir and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The appeal is allowed.1.

The sentence imposed in the District Court for the summary offence is varied by substituting for the sentence of imprisonment for six months to be served by way of an Intensive Correction Order, a sentence of three months imprisonment, wholly suspended forthwith for an operational period of four years. Otherwise, the sentence and orders in the District Court are confirmed in relation to the summary offence.2.

The sentence imposed in the District Court for the indictable offence is set aside.3.

The respondent is re-sentenced to a term of six months imprisonment for the indictable offence that, with the respondent’s consent, is to be served as an Intensive Correction Order.4.

That the respondent comply with the requirements in s 114(1) of the Penalties and Sentences Act 1992 (Qld) and report within 48 hours to an authorised Corrective Services Officer at Stones Corner, Brisbane.5.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – EXERCISE OF DISCRETION – GENERALLY – where the respondent pleaded guilty to and was convicted of dangerously operating a motor vehicle whilst adversely affected by alcohol against s 328A of the Criminal Code (Qld) and a summary offence of driving over the general alcohol limit against s 79(2)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld) – where respondent sentenced for the indictable offence to six months imprisonment, suspended immediately, for an operational period of four years and for the summary offence, to six months imprisonment to be served as an Intensive Correction Order – where respondent also disqualified from holding or obtaining a driver’s licence absolutely – where respondent has a criminal history and a relevant traffic history – whether the sentence fails to adequately reflect the gravity of the offence generally and this case in particular – whether the sentence fails sufficiently to take into account the aspect of general deterrence – whether the sentencing judge gave too much weight to the factors going to mitigation of sentence – whether the sentence should have included a short term in actual custody – whether sentence manifestly inadequate

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – EXERCISE OF DISCRETION – GENERALLY – where the respondent committed other offences after he had committed and been charged with the offences the subject of the present application…

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.

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Details

Case: [2009] QCA 35
Decision Date: 27 February 2009

CaseChat Overview and Summary

In the case of R v Kirby; Ex parte A-G (Qld), the Attorney-General for Queensland sought an appeal against the sentence imposed on the respondent, Kirby, who had pleaded guilty to charges of dangerously operating a motor vehicle whilst adversely affected by alcohol and driving over the general alcohol limit. The respondent was sentenced to six months imprisonment, suspended immediately, for the indictable offence and six months imprisonment, to be served as an Intensive Correction Order, for the summary offence. The respondent was also disqualified from holding or obtaining a driver’s licence absolutely. The Attorney-General argued that the sentence was manifestly inadequate, did not adequately reflect the gravity of the offence, failed to sufficiently consider general deterrence, and that the sentencing judge gave too much weight to mitigating factors.

The court was required to determine whether the sentence imposed was manifestly inadequate and whether the sentencing judge erred in their assessment of the respondent’s criminal and traffic history, as well as the relevance of subsequent offences. The court had to consider whether the sentence failed to adequately reflect the gravity of the offence and sufficiently take into account the aspect of general deterrence. The court also needed to assess whether the sentencing judge gave too much weight to the factors going to mitigation of sentence and whether the sentence should have included a short term in actual custody. Additionally, the court had to consider whether the sentencing judge erred in treating the subsequent offences as largely irrelevant.

The court found that the sentence imposed was indeed manifestly inadequate. It held that the sentencing judge had failed to adequately reflect the gravity of the offence and sufficiently take into account the aspect of general deterrence. The court found that the sentencing judge had given too much weight to mitigating factors, particularly the respondent’s plea of guilty and the absence of any injuries caused by the incident. The court also found that the sentencing judge had erred in treating the subsequent offences as largely irrelevant. The appeal was allowed, and the sentence for the summary offence was varied to three months imprisonment, wholly suspended forthwith for an operational period of four years. The sentence for the indictable offence was set aside, and the respondent was re-sentenced to a term of six months imprisonment, to be served as an Intensive Correction Order. The respondent was also required to comply with the requirements in s 114(1) of the Penalties and Sentences Act 1992 (Qld) and report within 48 hours to an authorised Corrective Services Officer at Stones Corner, Brisbane.

Orders

Orders of the court

The appeal is allowed.1.

The sentence imposed in the District Court for the summary offence is varied by substituting for the sentence of imprisonment for six months to be served by way of an Intensive Correction Order, a sentence of three months imprisonment, wholly suspended forthwith for an operational period of four years. Otherwise, the sentence and orders in the District Court are confirmed in relation to the summary offence.2.

The sentence imposed in the District Court for the indictable offence is set aside.3.

The respondent is re-sentenced to a term of six months imprisonment for the indictable offence that, with the respondent’s consent, is to be served as an Intensive Correction Order.4.

That the respondent comply with the requirements in s 114(1) of the Penalties and Sentences Act 1992 (Qld) and report within 48 hours to an authorised Corrective Services Officer at Stones Corner, Brisbane.5.

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 Kirby; ex parte A-G (Qld) [2009] QCA 35
PARTIES:	R v KIRBY, Brendan Alfred (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 341 of 2008 DC No 1503 of 2008 DC No 3061 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	27 February 2009
DELIVERED AT:	Brisbane
HEARING DATE:	18 February 2009
JUDGES:	Holmes, Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	The appeal is allowed.1. The sentence imposed in the District Court for the summary offence is varied by substituting for the sentence of imprisonment for six months to be served by way of an Intensive Correction Order, a sentence of three months imprisonment, wholly suspended forthwith for an operational period of four years. Otherwise, the sentence and orders in the District Court are confirmed in relation to the summary offence.2. The sentence imposed in the District Court for the indictable offence is set aside.3. The respondent is re-sentenced to a term of six months imprisonment for the indictable offence that, with the respondent’s consent, is to be served as an Intensive Correction Order.4. That the respondent comply with the requirements in s 114(1) of the Penalties and Sentences Act 1992 (Qld) and report within 48 hours to an authorised Corrective Services Officer at Stones Corner, Brisbane.5.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – EXERCISE OF DISCRETION – GENERALLY – where the respondent pleaded guilty to and was convicted of dangerously operating a motor vehicle whilst adversely affected by alcohol against s 328A of the Criminal Code (Qld) and a summary offence of driving over the general alcohol limit against s 79(2)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld) – where respondent sentenced for the indictable offence to six months imprisonment, suspended immediately, for an operational period of four years and for the summary offence, to six months imprisonment to be served as an Intensive Correction Order – where respondent also disqualified from holding or obtaining a driver’s licence absolutely – where respondent has a criminal history and a relevant traffic history – whether the sentence fails to adequately reflect the gravity of the offence generally and this case in particular – whether the sentence fails sufficiently to take into account the aspect of general deterrence – whether the sentencing judge gave too much weight to the factors going to mitigation of sentence – whether the sentence should have included a short term in actual custody – whether sentence manifestly inadequate CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – EXERCISE OF DISCRETION – GENERALLY – where the respondent committed other offences after he had committed and been charged with the offences the subject of the present application…