R v Lagos

[2003] QCA 121

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lagos [2003] QCA 121

PARTIES:

R
v
LAGOS, Mark Antonio

(applicant/appellant)

FILE NO/S:

CA No 17 of 2003
DC No 3176 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 March 2003

DELIVERED AT:

Brisbane

HEARING DATE:

12 March 2003

JUDGES:

McMurdo P, McPherson and Jerrard JJA
Separate reasons for judgment of each member of the Court,

each concurring as to the orders made

ORDERS:

Application for leave to appeal against sentence granted1.   

Appeal allowed2.   

Whole of the remaining period of the sentence suspended forthwith3.   

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND

PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – taxi driver injured passenger – whether sentence was outside the range commonly applied when provocation and abuse is considered

R v Foster [2002] QCA 482; CA No 246 of 2002, 6 November 2002, referred to
R v Wales [2002] QCA 463; CA 254 of 2002, 31 October 2002 distinguished

COUNSEL:

E East for the applicant

M J Copley for the respondent

SOLICITORS

Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO P: I agree with the reasons for judgment of McPherson JA.

1. Although the learned primary judge in his sentencing remarks said he was satisfied that the applicant showed a degree of recklessness or disregard for the safety of his passenger, his Honour tempered that finding by stating that the culpability was the applicant's omission to satisfy himself that one of the passengers was not alighting from the vehicle when he reversed suddenly.  His Honour did not find the applicant deliberately reversed the vehicle knowing the complainant was then attempting to alight from the cab.

1. Here the conduct of other passengers in the vehicle must have been offensive and concerning to the applicant.  The applicant cooperated in the administration of justice and pleaded guilty at an early stage.  He had no prior convictions for like conduct.  The grievous bodily harm suffered by the complainant was towards the less serious end of the scale.  Despite the worrying aspects of the offence, these factors and the judge's findings persuade me that a sentence of two years imprisonment requiring the applicant to serve four months actual custody before suspension is manifestly excessive.

1. I agree with the orders proposed by McPherson JA.

1. McPHERSON JA:  The applicant for leave to appeal against sentence was convicted in the District Court on a plea of guilty to a count of dangerous operation of a vehicle causing grievous bodily harm. In January this year, he was sentenced to imprisonment for 2 years suspended for an operational period of two years after serving 4 months. He was also disqualified from holding or obtaining a driver’s licence for six months, which is a statutory consequence of conviction in such circumstances.

1. At about 3.00 am on 23 January 2002 the applicant picked up four passengers in Fortitude…