R v MacDonald

[2014] QCA 9

SUPREME COURT OF QUEENSLAND

CITATION:

R v MacDonald [2014] QCA 9

PARTIES:

R
v
MacDONALD, Ross Graham
(applicant)

FILE NO:

CA No 233 of 2013
DC No 204 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

11 February 2014

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2013

JUDGES:

Fraser and Morrison JJA and Applegarth J
Joint reasons for judgment of Fraser and Morrison JJA; separate reasons of Applegarth J dissenting

ORDERS:

Application for leave to appeal refused.1.   

A warrant be issued for the arrest of the applicant, such warrant to lie in the Registry for 48 hours.2.   

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to a charge of dangerous operation of a motor vehicle causing grievous bodily harm – where applicant sentenced to 18 months imprisonment to be suspended after serving three months and disqualified from holding a licence for 12 months – whether the sentencing judge erred in finding that the case was not one of momentary or brief inattention – whether the sentencing judge erred in finding that the applicant must serve some period of actual custody

Criminal CodeandCivil Liability Amendment Act 2007 (Qld), s 4

R v Allen[2012] QCA 259, cited
R v Damrow[2009] QCA 245, cited
R v Gruenert; ex parte A-G (Qld)[2005] QCA 154, considered
R v Harris; ex parte A-G(Qld)[1999] QCA 392, cited
R v Hart[2008] QCA 199, cited
R v Iaria[2008] QCA 396, cited
R v Maher[2012] QCA 7, cited
R v Price[2005] QCA 52, cited
R v Proesser[2007] QCA 61, considered
R v Towers[2009] QCA 159, cited
R v Wilde; ex parte A-G (Qld) (2002) 135 A Crim R 538; [2002] QCA 501, cited

COUNSEL:

C F C Wilson for the applicant
G J Cummings for the respondent

SOLICITORS:

Bell Miller Solicitors for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. FRASER and MORRISON JJA:  We have had the benefit of reading the reasons prepared by Applegarth J.  His Honour has comprehensively set out the circumstances of the offence and the background facts.  We gratefully adopt, generally, paragraphs [37] to [40], [42] to [44] and [49] to [63] of his Honour’s reasons.  There are some qualifications to which we will refer to in these reasons.

1. We do not accept that the applicant necessarily believed that the approaching cars were going to exit the Ipswich-Boonah Road left onto Beaudesert-Boonah Road. We say that because the evidence of the applicant’s belief was not direct; its source was an elliptical comment from counsel for the applicant as to what was said by the applicant to the police,[1] and the prosecutor’s recollection of what was said at the roadside interview.[2]  As to the latter, it was that the applicant…