R v Maher - [2016] QCA 219

SUPREME COURT OF QUEENSLAND

CITATION:

R v Maher [2016] QCA 219

PARTIES:

R
v
MAHER, Luke Roy
(applicant)

FILE NO/S:

CA No 67 of 2016
DC No 21 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Charleville – Date of Sentence: 15 March 2016

DELIVERED ON:

Orders delivered ex tempore 25 July 2016
Reasons delivered 2 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

25 July 2016

JUDGES:

Morrison and Philippides JJA and Burns J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:
Delivered ex tempore on 25 July 2016:

1.   The application for leave to appeal is granted.

2.   The appeal is allowed.

3.   Set aside the order that suspended the term of imprisonment after serving three months imprisonment.

4.   In lieu thereof order that the term of imprisonment be suspended forthwith.

5.   Otherwise confirm the sentence imposed on 15 March 2016.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant attended a motocross track to ride his motorcycle and rode it in an area where pedestrians were standing – where the applicant performed a wheel-stand and travelled at high speed over 85 metres – where the applicant collided with the complainant, a nine year old boy – where the complainant sustained serious injuries amounting to grievous bodily harm – where the applicant pleaded guilty to the offence of dangerous operation of a vehicle causing grievous bodily harm – where the applicant was sentenced to imprisonment for 15 months, suspended after three months, with an operational period of three years – where the applicant’s driver’s licence was disqualified for a mandated period of six months – where the applicant applies for leave to appeal against sentence on the period of actual imprisonment – whether the sentence was manifestly excessive

R v Gatehouse, Dearden DCJ, District Court No 358 of 2010, 6 December 2013, cited
R v Goddard, Bradley DCJ, District Court No 373 of 2015, 16 December 2015, cited
R v Hopper; Ex parte Attorney-General (Qld) [2015] 2 Qd R 56; [2014] QCA 108, cited
R v Horne[2005] QCA 218, cited
R v MacDonald (2014) 244 A Crim R 148; [2014] QCA 9, cited
R v Mules[2007] QCA 47, cited
R v Roser[2004] QCA 318, cited
R v Towers[2009] QCA 159, cited
R v Wells, Dearden DCJ, District Court No 237 of 2012, 16 December 2015, cited

COUNSEL:

S J Hamlyn-Harris for the applicant
M T Whitbread for the respondent

SOLICITORS:

Hede Byrne & Hall for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: Nineteen year old Mr Maher rode his motorcycle at the Charleville Motocross track. He rode off the track, entering an area where people attending the motocross had parked their cars and were preparing to ride.…

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 Maher

Details

AGLC: R v Maher [2016] QCA 219
Case: [2016] QCA 219
Decision Date: 25 July 2016

CaseChat Overview and Summary

The case of R v Maher involved the applicant, who attended a motocross track to ride his motorcycle. While doing so, he rode in an area where pedestrians were standing, performed a wheel-stand, and travelled at high speed over a distance of 85 metres, subsequently colliding with the complainant, a nine-year-old boy. This resulted in the complainant sustaining serious injuries amounting to grievous bodily harm. The applicant pleaded guilty to the offence of dangerous operation of a vehicle causing grievous bodily harm. The court sentenced the applicant to imprisonment for 15 months, suspended after three months, with an operational period of three years. Additionally, the applicant’s driver’s licence was disqualified for a mandated period of six months. The applicant applied for leave to appeal against the sentence on the period of actual imprisonment, arguing that it was manifestly excessive.

The legal issues before the court were whether the sentence imposed by the primary judge was manifestly excessive and, if so, whether the court should grant leave to appeal. The court had to assess whether the sentence was appropriate in light of the circumstances of the case and the principle that the punishment should fit the crime. The applicant argued that the sentence was manifestly excessive, whereas the prosecution maintained that the sentence was appropriate and in line with precedent. The court considered the relevant case law and the principle that the punishment should fit the crime, as well as the specific circumstances of the case.

After considering the arguments and the relevant case law, the court concluded that the head sentence of 15 months was appropriate in the circumstances, and that there was no basis to interfere with it. However, the court found that the order suspending the term of imprisonment after serving three months was manifestly excessive and disproportionate to the circumstances of the case. The court noted that there were comparable cases that established that the sentence should be suspended forthwith, rather than after serving three months. Therefore, the court granted the application for leave to appeal and allowed the appeal, setting aside the order that suspended the term of imprisonment after serving three months and ordering that the term of imprisonment be suspended forthwith, while confirming the rest of the sentence imposed on 15 March 2016.

The final orders of the court were delivered ex tempore on 25 July 2016, and included granting the application for leave to appeal, allowing the appeal, setting aside the order that suspended the term of imprisonment after serving three months, ordering that the term of imprisonment be suspended forthwith, and confirming the rest of the sentence imposed on 15 March 2016. The judges of the court agreed with the reasons expressed by Morrison JA for the orders made in this matter.

Orders

Orders of the court

Delivered ex tempore on 25 July 2016:

1. The application for leave to appeal is granted.

2. The appeal is allowed.

3. Set aside the order that suspended the term of imprisonment after serving three months imprisonment.

4. In lieu thereof order that the term of imprisonment be suspended forthwith.

5. Otherwise confirm the sentence imposed on 15 March 2016.

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

The head sentence of 15 months was not the subject of challenge on this application. Even if it had been, the comparable cases referred to[18] amply establish that to be an appropriate sentence in the circumstances.[18]R v Roser [2014] QCA 318; R v Towers [2009] QCA 159; R v Goddard, Bradley DCJ, District Court No 373 of 2015, 16 December 2015; R v Wells, Dearden DCJ, District Court No 237 of 2012, 16 December 2015; and R v Gatehouse, Dearden DCJ, District Court No 358 of 2010, 6 December 2013.Conclusion For the reasons expressed above, I joined in making the orders on 25 July 2016. PHILIPPIDES JA: I have had the advantage of reading the reasons for judgment of Morrison JA. They reflect my reasons for joining in the orders made in this matter. BURNS J: I agree with the reasons expressed by Morrison JA for the orders made by the Court on 25 July 2016.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Maher [2016] QCA 219
PARTIES:	R v MAHER, Luke Roy (applicant)
FILE NO/S:	CA No 67 of 2016 DC No 21 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Charleville – Date of Sentence: 15 March 2016
DELIVERED ON:	Orders delivered ex tempore 25 July 2016 Reasons delivered 2 September 2016
DELIVERED AT:	Brisbane
HEARING DATE:	25 July 2016
JUDGES:	Morrison and Philippides JJA and Burns J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 25 July 2016: 1. The application for leave to appeal is granted. 2. The appeal is allowed. 3. Set aside the order that suspended the term of imprisonment after serving three months imprisonment. 4. In lieu thereof order that the term of imprisonment be suspended forthwith. 5. Otherwise confirm the sentence imposed on 15 March 2016.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant attended a motocross track to ride his motorcycle and rode it in an area where pedestrians were standing – where the applicant performed a wheel-stand and travelled at high speed over 85 metres – where the applicant collided with the complainant, a nine year old boy – where the complainant sustained serious injuries amounting to grievous bodily harm – where the applicant pleaded guilty to the offence of dangerous operation of a vehicle causing grievous bodily harm – where the applicant was sentenced to imprisonment for 15 months, suspended after three months, with an operational period of three years – where the applicant’s driver’s licence was disqualified for a mandated period of six months – where the applicant applies for leave to appeal against sentence on the period of actual imprisonment – whether the sentence was manifestly excessive R v Gatehouse, Dearden DCJ, District Court No 358 of 2010, 6 December 2013, cited R v Goddard, Bradley DCJ, District Court No 373 of 2015, 16 December 2015, cited R v Hopper; Ex parte Attorney-General (Qld) [2015] 2 Qd R 56; [2014] QCA 108, cited R v Horne[2005] QCA 218, cited R v MacDonald (2014) 244 A Crim R 148; [2014] QCA 9, cited R v Mules[2007] QCA 47, cited R v Roser[2004] QCA 318, cited R v Towers[2009] QCA 159, cited R v Wells, Dearden DCJ, District Court No 237 of 2012, 16 December 2015, cited
COUNSEL:	S J Hamlyn-Harris for the applicant M T Whitbread for the respondent
SOLICITORS:	Hede Byrne & Hall for the applicant Director of Public Prosecutions (Queensland) for the respondent