R v McCoy - [2015] QCA 48

SUPREME COURT OF QUEENSLAND

CITATION:

R v McCoy [2015] QCA 48

PARTIES:

R
v
McCOY, Melinda Anne
(applicant)

FILE NO/S:

CA No 216 of 2014
DC No 188 of 2012
DC No 113 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

10 April 2015

DELIVERED AT:

Brisbane

HEARING DATE:

12 February 2015

JUDGES:

Margaret McMurdo P and Holmes JA and Jackson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to serious assault of a police officer acting in the execution of his duty, dangerous operation of a vehicle with the circumstance of aggravation that she was adversely affected by alcohol, unlicensed driving and leaving the scene of an accident in which a person had been injured – where the applicant was a passenger in a vehicle which pulled over on the side of a road in response to a direction from a police officer – where the applicant swapped seats with her partner, the driver of the vehicle and got in through the driver’s door – where the police officer directed the applicant to stop – where the applicant continued to drive slowly forward towards the police officer – where the police officer placed both hands on the bonnet of the car and held up his hands in a clear stop signal – where the applicant’s vehicle then rapidly increased speed forcing the police officer onto its bonnet – where the police officer struck the windscreen before falling onto the road – where the police officer suffered a dislocated and broken right shoulder and was unable to return to work for a month – where the applicant was adversely affected by alcohol – where the applicant contended that she believed the police officer was directing her to leave the scene when she unintentionally struck him; that this belief was unreasonable but formed due to her intoxicated stated; and that she left the scene knowing she had struck him – where the prosecution alleged that the applicant acted deliberately or was motivated by reckless indifference – where the applicant had a criminal history and an extensive traffic history – where the trial judge found that the applicant’s actions in striking the police officer were deliberate to enable her to leave the scene and avoid arrest – where the applicant was sentenced to two and a half years imprisonment suspended after 13 months – whether the sentence was manifestly excessive

Evidence Act 1977 (Qld), s 21A, s 93A

R v Broadbridge[1994] QCA 278, cited
R v Obern[2002] QCA 444, cited
R v Whye [1997] QCA 320, cited

COUNSEL:

J M Sharp for the applicant
B J Merrin…

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 McCoy

Details

AGLC: R v McCoy [2015] QCA 48
Case: [2015] QCA 48
Decision Date: 10 April 2015

CaseChat Overview and Summary

The case of R v McCoy involved an applicant who pleaded guilty to serious assault of a police officer, dangerous operation of a vehicle with the circumstance of aggravation that she was adversely affected by alcohol, unlicensed driving and leaving the scene of an accident in which a person had been injured. The applicant was a passenger in a vehicle that pulled over on the side of the road in response to a direction from a police officer. She swapped seats with her partner, the driver, and continued driving towards the police officer, who suffered a dislocated and broken right shoulder and was unable to return to work for a month. The applicant contended that she believed the police officer was directing her to leave the scene when she unintentionally struck him and that she left the scene knowing she had struck him. The trial judge found that the applicant’s actions in striking the police officer were deliberate to enable her to leave the scene and avoid arrest. The applicant was sentenced to two and a half years imprisonment suspended after 13 months.

The legal issues the court was required to decide were whether the sentence was manifestly excessive or inadequate, and whether the applicant’s guilty plea and remorse were sufficiently considered by the trial judge. The applicant submitted that the judge gave insufficient weight to her guilty plea and remorse and placed too much weight on the fact that she contested the factual basis of her sentence. She offered to plead guilty to these charges at an early stage, prior to the presentment of the indictment. Further, she had not previously been sentenced to a term of imprisonment. She tendered a letter of apology to the complainant. The judge overlooked that she was acting in a state of panic under pressure from her partner.

The court reasoned that the applicant’s conduct, whilst intoxicated, in deliberately driving dangerously at a police officer acting in the execution of his duty, was most serious. It caused the police officer significant injury but had the potential to cause even more serious injury or even death. It warranted a significant penalty to deter her and others from such gravely anti-social behaviour. The judge was entitled to be circumspect about the depth of her subsequent remorse given her leaving the scene without concern for the police officer’s welfare and her unpromising insistence on contesting the factual basis of her plea of guilty. That said, there were mitigating features. Despite her criminal and traffic history, she had never before been sentenced to a term of imprisonment. She did plead guilty at an early stage. She had dependent children for whom her imprisonment will be difficult. In light of the increase in the maximum penalty to seven years imprisonment for the offence of serious assault, the cases to which the applicant has referred this Court do not demonstrate that the effective sentence of two and a half years imprisonment with an operational period of four years, suspended after 13 months, for the totality of the applicant’s offending, was manifestly excessive. The fact that a different judge may have imposed a slightly lesser head sentence suspended at the one third point is of no assistance to the applicant. The application for leave to appeal against sentence was refused.

ORDERS:
The application for leave to appeal against sentence is refused.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant submitted that the judge gave insufficient weight to her guilty plea and remorse and placed too much weight on the fact that she contested the factual basis of her sentence. She offered to plead guilty to these charges at an early stage, prior to the presentment of the indictment. Further, she had not previously been sentenced to a term of imprisonment. She tendered a letter of apology to the complainant. The judge overlooked that she was acting in a state of panic under pressure from her partner. The two and half year head sentence was at the top of the range submitted by defence counsel. A review of the decisions relied on at sentence indicate that the head sentence was high but not outside the permissible range. In combination, however, the high head sentence and an order suspending the sentence after 13 months rather than after one third, renders the sentence manifestly excessive. The applicant placed reliance on R v Obern,[1] R v Whye[2] and R v Broadbridge.[3] This Court should allow the appeal and suspend the term of imprisonment after 10 months rather than after 13 months.[1][2002] QCA 444.[2][1997] QCA 320.[3][1994] QCA 278.Conclusion This is a sad case in that the applicant’s problems with the law, on this occasion and in the past, are clearly related to her personal difficulties and her no doubt inter-connected alcohol problem. She was, however, a mature woman with a significant criminal and traffic history. Her conduct, whilst intoxicated, in deliberately driving dangerously at a police officer acting in the execution of his duty, was most serious. It caused him significant injury but her behaviour had the potential to cause even more serious injury or even death. It warranted a significant penalty to deter her and others from such gravely anti-social behaviour. The judge was entitled to be circumspect about the depth of her subsequent remorse given her leaving the scene without concern for Sergeant Whittet’s welfare and her unpromising insistence on contesting the factual basis of her plea of guilty. That said, there were mitigating features. Despite her criminal and traffic history, she had never before been sentenced to a term of imprisonment. She did plead guilty at an early stage. She had dependent children for whom her imprisonment will be difficult. In light of the increase in the maximum penalty to seven years imprisonment for the offence of serious assault, the cases to which the applicant has referred this Court do not demonstrate that the effective sentence of two and a half years imprisonment with an operational period of four years, suspended after 13 months, for the totality of the applicant’s offending, was manifestly excessive. The fact that a different judge may have imposed a slightly lesser head sentence suspended at the one third point is of no assistance to the applicant. The application for leave to appeal must be refused.OrderThe application for leave to appeal against sentence is refused. HOLMES JA: I agree with the reasons of Margaret McMurdo P and the order she proposes.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v McCoy [2015] QCA 48
PARTIES:	R v McCOY, Melinda Anne (applicant)
FILE NO/S:	CA No 216 of 2014 DC No 188 of 2012 DC No 113 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	10 April 2015
DELIVERED AT:	Brisbane
HEARING DATE:	12 February 2015
JUDGES:	Margaret McMurdo P and Holmes JA and Jackson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to serious assault of a police officer acting in the execution of his duty, dangerous operation of a vehicle with the circumstance of aggravation that she was adversely affected by alcohol, unlicensed driving and leaving the scene of an accident in which a person had been injured – where the applicant was a passenger in a vehicle which pulled over on the side of a road in response to a direction from a police officer – where the applicant swapped seats with her partner, the driver of the vehicle and got in through the driver’s door – where the police officer directed the applicant to stop – where the applicant continued to drive slowly forward towards the police officer – where the police officer placed both hands on the bonnet of the car and held up his hands in a clear stop signal – where the applicant’s vehicle then rapidly increased speed forcing the police officer onto its bonnet – where the police officer struck the windscreen before falling onto the road – where the police officer suffered a dislocated and broken right shoulder and was unable to return to work for a month – where the applicant was adversely affected by alcohol – where the applicant contended that she believed the police officer was directing her to leave the scene when she unintentionally struck him; that this belief was unreasonable but formed due to her intoxicated stated; and that she left the scene knowing she had struck him – where the prosecution alleged that the applicant acted deliberately or was motivated by reckless indifference – where the applicant had a criminal history and an extensive traffic history – where the trial judge found that the applicant’s actions in striking the police officer were deliberate to enable her to leave the scene and avoid arrest – where the applicant was sentenced to two and a half years imprisonment suspended after 13 months – whether the sentence was manifestly excessive Evidence Act 1977 (Qld), s 21A, s 93A R v Broadbridge[1994] QCA 278, cited R v Obern[2002] QCA 444, cited R v Whye [1997] QCA 320, cited
COUNSEL:	J M Sharp for the applicant B J Merrin…