R v Markusic

[2004] QCA 249

SUPREME COURT OF QUEENSLAND

CITATION:

R v Markusic [2004] QCA 249

PARTIES:

R
v
MARKUSIC, Emil
(applicant)

FILE NO/S:

CA No 173 of 2004
DC No 85 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED EX TEMPORE ON:

26 July 2004

DELIVERED AT:

Brisbane

HEARING DATE:

26 July 2004

JUDGES:

McPherson and Williams JJA and Mackenzie 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 dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where leave sought to appeal against sentence – where applicant sentenced to five years imprisonment – where sentence suspended after 18 months – where applicant convicted of dangerous operation of a motor vehicle with circumstances of aggravation – where applicant adversely affected by alcohol – where applicant drove through red light - where applicant caused grievous bodily harm – where applicant 72 – whether insufficient account taken of age

R v Antoney [2000] QCA 180; CA No 402 of 1999, 16 May 2000, distinguished
R v McGuire; ex parte A-G (Qld)  [2002] QCA 439; CA No 197 of 2002, 18 October 2002, distinguished
R v Purcell [1999] QCA 316; CA No 192 of 1999, 17 August 1999, distinguished
The Queen v Schloss (1998) 100 A Crim R 80, cited

COUNSEL:

A F Maher for the applicant
R G Martin for the respondent

SOLICITORS:

Lake Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MACKENZIE J:  The applicant seeks leave to appeal against a sentence of five years' imprisonment to be suspended after 18 months with an operational period of five years for an offence of dangerous operation of a motor vehicle with circumstances of aggravation that he was adversely affected by alcohol and caused grievous bodily harm.

The concentration of alcohol in his blood about one-and-a-half hours after the incident was 0.262 per cent and would have been in the vicinity of 0.29 per cent at the time of the incident.

The applicant was 72 years of age at the time of the offence.  He had no criminal convictions but had incurred two fines for exceeding the speed limit by at least 15 kilometres an hour in 1998 and 2002 and one for failing to provide a breath specimen in 1989.  The learned sentencing Judge was told that, apart from a back problem, he had no major medical problems and was not on any significant medication. 

The offence occurred at about 10 p.m. on the 22nd of December 2002 at the intersection of Bermuda Street and Reedy Creek Road, West Burleigh.  Bermuda Street is one of the major north south arterial roads on the Gold Coast and Reedy Creek Road is a major road which runs in a generally westerly direction from Burleigh to the Pacific Motorway.  Road…