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R v Maher

R v Maher

Case [2012] QCA 7 10 February 2012

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Maher [2012] QCA 7

PARTIES:

R
v
MAHER, Raymond Patrick
(applicant)

FILE NO/S:

CA No 280 of 2011
DC No 83 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

10 February 2012

DELIVERED AT:

Brisbane

HEARING DATE:

1 February 2012

JUDGES:

Chief Justice, White JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE – where applicant pleaded guilty to dangerous operation of a vehicle causing death – where applicant sentenced to imprisonment for three years suspended after nine months – where applicant contends insufficient regard had to mitigating factors – where applicant contends sentencing judge erred in characterising offence as a sustained course of dangerous driving due to fatigue rather than momentary inattention – whether sentence manifestly excessive

Criminal Code and Civil Liability Amendment Act 2007 (Qld), s 4
Victims of Crime Assistance Act 2009 (Qld), s 15(8)

Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14, cited
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
R v Damrow[2009] QCA 245, discussed
R v Dwyer [2008] QCA 117, cited
R v Gruenert; ex parte A-G (Qld)[2005] QCA 154, cited
R v Hardes[2003] QCA 47, cited
R v Harris; ex parte A-G (Qld) [1999] QCA 392, cited
R v Hart[2008] QCA 199, distinguished
R v McGuigan[2004] QCA 381, cited
R v Manners; ex parte A-G (Qld) (2002) 132 A Crim R 363; [2002] QCA 301, cited
R v Murphy[2009] QCA 93, discussed
R v Newman[1997] QCA 143, cited
R v Pellow [1997] NSWSC 286, cited
R v Price[2005] QCA 52, cited
R v Proesser[2007] QCA 61, cited
R v Ruka[2009] QCA 113, discussed
R v Ryan; ex parte Attorney-General (Qld)[1996] QCA 434, cited
R v Vance; ex parte A-G (Qld)[2007] QCA 269, discussed
R v Wilson [2009] 1 Qd R 476; [2008] QCA 349, discussed

COUNSEL:

K Prskalo for the applicant
S P Vasta for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of White JA. I agree that the application should be refused, for those reasons.

I wish respectfully to commend the primary Judge for his having declined to accept unquestioningly Counsel’s common characterization of the case. His Honour pursued that issue on full notice, and with measure. He thereby discharged his independent judicial obligation.

It is disturbing to think an attitude erroneously distilled at the bar table, fortunately uncommon, could nevertheless control the exercise…

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 [2012] QCA 7
Case: [2012] QCA 7
Decision Date: 10 February 2012

CaseChat Overview and Summary

The applicant, Maher, appealed against his sentence following his conviction for dangerous operation of a vehicle causing death. The Supreme Court of Victoria heard the application for leave to appeal against the sentence. Maher argued that the sentence was manifestly excessive, claiming that insufficient regard was given to mitigating factors and that the sentencing judge had erred in characterising the offence as a sustained course of dangerous driving due to fatigue rather than momentary inattention.

The court considered whether the sentence was manifestly excessive, taking into account the mitigating factors and the characterisation of the offence. The court noted that the sentencing judge had considered the mitigating factors and had imposed a sentence that was within the range of sentences typically imposed for this type of offence. The court also found that the sentencing judge's characterisation of the offence as a sustained course of dangerous driving due to fatigue was supported by the evidence. The court held that the sentence was not manifestly excessive and dismissed the application for leave to appeal.

The court refused Maher's application for leave to appeal against his sentence. The court found that the sentence was within the range of sentences typically imposed for this type of offence and that the sentencing judge had properly considered the mitigating factors and the characterisation of the offence. The court held that the sentence was not manifestly excessive and dismissed the application.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

R v Maher [2012] QCA 7

Most Recent Citation

R v Allen [2012] QCA 259

Cases Citing This Decision

R v Farkas [2023] QCA 84
Citation 1 (Para 12)

…The primary judge expressly adopted the reasoning of White JA in R v Maher [2012] QCA 7 at [43] where her Honour said: “Driving a vehicle tends to be taken very much for granted. It tends to be regarded as a right rather than a privilege. The public must have a level of understanding that those who engage in dr…
R v Muirhead; R v Muirhead; Ex parte [2019] QCA 244
Citation 2 (Para 33)

…el, namely R v Hart ,[1] R v Maher ,[2] R v Allen ,[3] R v Huxtable ,[4] R v Osborne ,[5] R v Schoner [6] and R v Browning .[7] [1][2008] QCA 199. [2][2012] QCA 7. [3][2012] QCA 259. [4][2014] QCA 249. [5][2014] QCA 291. [6][2015] QCA 190. [7][2018] QCA 337.…
R v Lightbody [2019] QCA 61
Citation 3 (Para 3)

…t is so even though … the increase in the maximum penalty should not necessarily be reflected in proportionate increases in sentences.”[40] [38][2012] QCA 7. The marked upward trend in penalties for dangerous driving was noted in R v MacDonald [2014] QCA 9 at [32]. [39][2012] QCA 7 at [43]. [40] R v CBI [2013]…
Mazza v Deputy Commissioner Gollschewski [2018] QCAT 205
Citation 4 (Para 10)

…n a way below the standards required and dangerous to others, they can expect s serious outcome in court…. [Deveraux DCJ then referred to R v Maher [2012] QCA 7 involving a collision which occurred at night in a well-lit street in the course of the applicant undertaking a right-hand turn into the path of an onc…
R v Etheridge [2016] QCA 241
Citation 5 (Para 2)

…including R v Ruka ,[48] R v Hopper ,[49] R v Maher ,[50] Nikora , R v Huxtable [51] and R v Osborn .[52] [48][2009] QCA 113. [49][2011] QCA 296. [50][2012] QCA 7. [51][2014] QCA 249. [52][2014] QCA 291.…
R v Liu [2016] QCA 186
Citation 6 (Para 13)

…The decision referred to in the above extract of R v Maher [2012] QCA 7, which was not brought to the attention of the sentencing judge, illustrates the width of the sentencing discretion. There, a sentence of three years imprisonment suspended after serving nine months with an operational period of three years…
R v Schoner [2015] QCA 190
Citation 7 (Para 1)

…s to deter precisely this category of offender that condign punishments are imposed.[21] [14]T1-30. [15]T1-31. [16]T1-32. [17][2011] QCA 113. [18][2012] QCA 7. [19]T1-36. [20][2008] QCA 253 at [22]; cited in R v Nikora [2014] QCA 192. [21]T1-37.…
Miller v Commissioner of Police [2015] QDC 213
Citation 8 (Para 1)

…That view of the Magistrate is supported by Court of Appeal authority and I refer, for example, to the cases that are cited in R v Maher [2012] QCA 7. For example, at paragraph 37 there is reference to a decision of Ruka [2009] QCA 113 in which Justice Wilson, with whom Justices Muir and Chesterman agreed, note…
R v Osborne [2014] QCA 291
Citation 9 (Para 1)

…phy [17] and two-sevenths in the case of R v Maher .[18] [16] Hili v The Queen (2010) 242 CLR 520; R v Torrens [2011] QCA 38. [17] [2009] QCA 93. [18][2012] QCA 7. For other recent examples see R v Boubaris [2014] QCA 199 and R v MacDonald [2014] QCA 9 where in each instance sentences of 18 months imprisonment…
R v Huxtable [2014] QCA 249
Citation 10 (Para 1)

…Allen [6] and R v Maher [7] and stated that the maximum penalty for the offence was 10 years imprisonment. [5][2005] QCA 52, 4. [6][2012] QCA 259. [7][2012] QCA 7.…
R v MacDonald [2014] QCA 9
Citation 11 (Para 1)

…e [2005] QCA 52 (“ Price ”), at p 5. [30] R v Wilde; ex parte A-G (Qld) (2002) 135 A Crim R 538; [2002] QCA 501 (“ Wilde ”). [31] R v Maher [2012] QCA 7, at [43].…
R v Allen [2012] QCA 259
Citation 12

…anifestly excessive R v Damrow [2009] QCA 245, considered R v Gruenert; ex parte A-G (Qld) [2005] QCA 154, considered R v Maher [2012] QCA 7, considered R v Major; ex parte A-G (Qld) [2012] 1 Qd R 465; [2011] QCA 210, cited COUNSEL: S A Lynch for the applicant A Moynihan SC for the respondent SOLICITORS: Bell M…

See all citing cases →

Cases Cited

R v Damrow [2009] QCA 245
Citation 1 (Para 1)

…y post-2007 cases to which the increased penalty was applied they would give the most assistance. It is useful to consider those decisions first. [29][2009] QCA 245. [30][2009] QCA 113.…
R v Ruka [2009] QCA 113
Citation 2 (Para 1)

…which the increased penalty was applied they would give the most assistance. It is useful to consider those decisions first. [29][2009] QCA 245. [30][2009] QCA 113.…
R v Murphy [2009] QCA 93
Citation 3

…nguished R v McGuigan [2004] QCA 381, cited R v Manners; ex parte A-G (Qld) (2002) 132 A Crim R 363; [2002] QCA 301, cited R v Murphy [2009] QCA 93, discussed R v Newman [1997] QCA 143, cited R v Pellow [1997] NSWSC 286, cited R v Price [2005] QCA 52, cited R v Proesser [2007] QCA 61, cited R v Ruka [2009] QCA 1…
R v Wilson [2008] QCA 349
Citation 4 (Para 1)

…[21] and R v Newman .[22] Her Honour’s comment was made in respect of cases for which the maximum penalty[23] was seven years imprisonment. [17][2008] QCA 349. [18]At [26]. [19](2002) 132 A Crim R 363; [2002] QCA 301. [20][2005] QCA 52. [21][2008] QCA 199. [22][1997] QCA 143. [23] Criminal Code and Civil Liabilit…
R v Hart [2008] QCA 199
Citation 5 (Para 1)

…ge intervened stating that he needed to be persuaded that the applicant’s conduct could be characterised as “momentary inattention”. [7][2008] QCA 199. [8][2005] QCA 154. [9][2005] QCA 52.…
R v Dwyer [2008] QCA 117
Citation 6

…2; [1992] HCA 14, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Damrow [2009] QCA 245, discussed R v Dwyer [2008] QCA 117, cited R v Gruenert; ex parte A-G (Qld) [2005] QCA 154, cited R v Hardes [2003] QCA 47, cited R v Harris; ex parte A-G (Qld) [1999] QCA 392, cited R v Hart [2008] QC…
R v. Vance ; ex parte A-G (Qld) [2007] QCA 269
Citation 7 (Para 1)

…ed that the sentence was not manifestly excessive. [35] Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14; R v Pellow [1997] NSWSC 286. [36][2007] QCA 269.…
R v Proesser [2007] QCA 61
Citation 8 (Para 1)

…Defence counsel relied on R v Gruenert; ex parte Attorney-General (Qld) [12]; [12][2005] QCA 154. [13][1996] QCA 434. [14][2007] QCA 61. R v Ryan; ex parte Attorney-General (Qld)[13] and R v Proesser [14] and submitted that it was open to the court to impose a wholly suspended sentence.…
Markarian v The Queen [2005] HCA 25
Citation 9

…stance Act 2009 (Qld), s 15(8) Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Damrow [2009] QCA 245, discussed R v Dwyer [2008] QCA 117, cited R v Gruenert; ex parte A-G (Qld) [2005] QCA 154, cited R v Hardes [2003] QCA 47, cited R…
R v Gruenert; ex parte A-G (Qld) [2005] QCA 154
Citation 10 (Para 1)

…ng that he needed to be persuaded that the applicant’s conduct could be characterised as “momentary inattention”. [7][2008] QCA 199. [8][2005] QCA 154. [9][2005] QCA 52.…
R v Price [2005] QCA 52
Citation 11 (Para 1)

…o be persuaded that the applicant’s conduct could be characterised as “momentary inattention”. [7][2008] QCA 199. [8][2005] QCA 154. [9][2005] QCA 52.…
R v McGuigan [2004] QCA 381
Citation 12 (Para 1)

…the very bottom of the range for such an offence”. The Chief Justice concluded that Vance’s sentence was manifestly inadequate. He said: [39][2004] QCA 381. [40][2003] QCA 47.…
R v Hardes [2003] QCA 47
Citation 13 (Para 1)

…the range for such an offence”. The Chief Justice concluded that Vance’s sentence was manifestly inadequate. He said: [39][2004] QCA 381. [40][2003] QCA 47.…
R v Manners; ex parte A-G (Qld) [2002] QCA 301
Citation 14 (Para 1)

…respect of cases for which the maximum penalty[23] was seven years imprisonment. [17][2008] QCA 349. [18]At [26]. [19](2002) 132 A Crim R 363; [2002] QCA 301. [20][2005] QCA 52. [21][2008] QCA 199. [22][1997] QCA 143. [23] Criminal Code and Civil Liability Amendment Act 2007 (Qld), Act No 14 of 2007, s 4, assent…
R v Harris; ex parte A-G (Qld) [1999] QCA 392
Citation 15

…QCA 117, cited R v Gruenert; ex parte A-G (Qld) [2005] QCA 154, cited R v Hardes [2003] QCA 47, cited R v Harris; ex parte A-G (Qld) [1999] QCA 392, cited R v Hart [2008] QCA 199, distinguished R v McGuigan [2004] QCA 381, cited R v Manners; ex parte A-G (Qld) (2002) 132 A Crim R 363; [2002] QCA 301, cited R v M…
R v Newman [1997] QCA 143
Citation 16 (Para 1)

…en years imprisonment. [17][2008] QCA 349. [18]At [26]. [19](2002) 132 A Crim R 363; [2002] QCA 301. [20][2005] QCA 52. [21][2008] QCA 199. [22][1997] QCA 143. [23] Criminal Code and Civil Liability Amendment Act 2007 (Qld), Act No 14 of 2007, s 4, assented to on 20 March 2007 increased the maximum penalty to 10…
R v Ryan [1996] QCA 434
Citation 17 (Para 1)

…Defence counsel relied on R v Gruenert; ex parte Attorney-General (Qld) [12]; [12][2005] QCA 154. [13][1996] QCA 434. [14][2007] QCA 61. R v Ryan; ex parte Attorney-General (Qld)[13] and R v Proesser [14] and submitted that it was open to the court to impose a wholly suspended sentence.…
Jiminez v the Queen [1992] HCA 14
Citation 18 (Para 1)

…particularly referred to Vance [36] and concluded that the sentence was not manifestly excessive. [35] Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14; R v Pellow [1997] NSWSC 286. [36][2007] QCA 269.…
R v Pellow [1997] NSWSC 286
Citation 19 (Para 1)

…Vance [36] and concluded that the sentence was not manifestly excessive. [35] Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14; R v Pellow [1997] NSWSC 286. [36][2007] QCA 269.…

Legislation Cited

Criminal Code and Civil Liability Amendment Act 2007 (Qld) 4
2 mentions (from Para 1)
Victims of Crime Assistance Act 2009 (Qld) 15(8)
2 mentions (from Para 1)

CITATION:	R v Maher [2012] QCA 7
PARTIES:	R v MAHER, Raymond Patrick (applicant)
FILE NO/S:	CA No 280 of 2011 DC No 83 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Mackay
DELIVERED ON:	10 February 2012
DELIVERED AT:	Brisbane
HEARING DATE:	1 February 2012
JUDGES:	Chief Justice, White JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE – where applicant pleaded guilty to dangerous operation of a vehicle causing death – where applicant sentenced to imprisonment for three years suspended after nine months – where applicant contends insufficient regard had to mitigating factors – where applicant contends sentencing judge erred in characterising offence as a sustained course of dangerous driving due to fatigue rather than momentary inattention – whether sentence manifestly excessive Criminal Code and Civil Liability Amendment Act 2007 (Qld), s 4 Victims of Crime Assistance Act 2009 (Qld), s 15(8) Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Damrow[2009] QCA 245, discussed R v Dwyer [2008] QCA 117, cited R v Gruenert; ex parte A-G (Qld)[2005] QCA 154, cited R v Hardes[2003] QCA 47, cited R v Harris; ex parte A-G (Qld) [1999] QCA 392, cited R v Hart[2008] QCA 199, distinguished R v McGuigan[2004] QCA 381, cited R v Manners; ex parte A-G (Qld) (2002) 132 A Crim R 363; [2002] QCA 301, cited R v Murphy[2009] QCA 93, discussed R v Newman[1997] QCA 143, cited R v Pellow [1997] NSWSC 286, cited R v Price[2005] QCA 52, cited R v Proesser[2007] QCA 61, cited R v Ruka[2009] QCA 113, discussed R v Ryan; ex parte Attorney-General (Qld)[1996] QCA 434, cited R v Vance; ex parte A-G (Qld)[2007] QCA 269, discussed R v Wilson [2009] 1 Qd R 476; [2008] QCA 349, discussed
COUNSEL:	K Prskalo for the applicant S P Vasta for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent