R v McGuire - [2002] QCA 439

SUPREME COURT OF QUEENSLAND

CITATION:

R v McGuire; ex-parte A-G [2002] QCA 439

PARTIES:

R
v
McGUIRE, Christian Daniel
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 197 of 2002
DC No 1113 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Sentence by A-G (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EXTEMPORE ON:

18 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

18 October 2002

JUDGES:

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

ORDER:

Appeal allowed.

Instead of ordering the imprisonment be suspended forthwith, order that the term of imprisonment be suspended after serving a period of six months’ imprisonment.

Vacate the order for payment of a $7,000 fine.

Order a bench warrant issue for the arrest of the respondent to lie in the Registry for seven days.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE - where respondent convicted by own plea of one count of dangerous operation of a motor vehicle causing grievous bodily harm with a circumstance of aggravation – where respondent also pleaded guilty to a summary charge of driving a motor vehicle whilst under the influence of liquor – where sentence wholly suspended – where deterrent sentence necessary – where comparable sentences support a term of actual imprisonment – where appeal allowed

Everett v R, Phillips v R (1994) 181 CLR 295, referred to
R v Hine [2002] QCA 212, CA No 31 of 2002, 21 June 2002, referred to
R v Hoffman; ex-parte A-G (1997) 98 A CrimR 177, referred to
R v Melano; ex-parte A-G [1995] 2 Qd R 186, referred to
R v Purcell; ex-parte A-G [1999] QCA 316, CA No 192 of 1999, 17 August 1999, referred to
R v Rowley [1998] QCA 324, CA No 240 of 1998, 26 August 1998, referred to

COUNSEL:

M J Copley for the appellant
A F Maher for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Lees Marshall Warnick for the respondent

THE PRESIDENT: McGuire pleaded guilty to one count of dangerous operation of a motor vehicle causing grievous bodily harm with a circumstance of aggravation that he was adversely affected by alcohol exceeding 150 milligrams of alcohol per 100 millilitres of blood. He also pleaded guilty to a summary charge of driving a motor vehicle whilst under the influence of liquor.

On the first offence he was sentenced to imprisonment for two years fully suspended with an operational period of four years and fined $7,000 with two years to pay and disqualified from holding or obtaining a driver's licence for a period of four years.

The appellant, the Attorney-General, contends the sentence imposed for that offence was manifestly inadequate and that a sentence of three to four years' imprisonment should be imposed…

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 McGuire

Details

AGLC: R v McGuire; ex parte A-G [2002] QCA 439
Case: [2002] QCA 439
Decision Date: 18 October 2002

CaseChat Overview and Summary

The case of R v McGuire involved the respondent, who had pleaded guilty to a charge of dangerous operation of a motor vehicle causing grievous bodily harm, with an aggravating circumstance, and to a summary charge of driving under the influence of alcohol. The Supreme Court of Victoria was tasked with determining the appropriate sentence. The Attorney-General, representing the Crown, sought to appeal the sentence imposed, which was wholly suspended.

The central legal issue was whether the sentence imposed was appropriate in the circumstances, particularly given the need for a deterrent sentence. The Crown argued that the sentence was manifestly inadequate and should be replaced with one of actual imprisonment. They contended that comparable cases supported a sentence involving imprisonment, and that the wholly suspended sentence failed to serve the necessary deterrent purpose. The respondent, on the other hand, maintained that the original sentence was appropriate and should stand.

The Court considered the nature of the offence and the need for a deterrent sentence. It found that the wholly suspended sentence did not adequately reflect the seriousness of the respondent's actions, nor did it serve a deterrent function. The Court concluded that the sentence should include a period of imprisonment before any suspension. The appeal was allowed, and the Court ordered that the term of imprisonment be suspended after the respondent served six months. Additionally, the Court vacated the order for payment of a $7,000 fine and issued a bench warrant for the respondent's arrest to lie in the Registry for seven days.

Orders

Orders of the court

Appeal allowed.

Instead of ordering the imprisonment be suspended forthwith, order that the term of imprisonment be suspended after serving a period of six months’ imprisonment.

Vacate the order for payment of a $7,000 fine.

Order a bench warrant issue for the arrest of the respondent to lie in the Registry for seven days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v McGuire; ex-parte A-G [2002] QCA 439
PARTIES:	R v McGUIRE, Christian Daniel (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 197 of 2002 DC No 1113 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Sentence by A-G (Qld)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EXTEMPORE ON:	18 October 2002
DELIVERED AT:	Brisbane
HEARING DATE:	18 October 2002
JUDGES:	McMurdo P, Davies JA and Holmes J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal allowed. Instead of ordering the imprisonment be suspended forthwith, order that the term of imprisonment be suspended after serving a period of six months’ imprisonment. Vacate the order for payment of a $7,000 fine. Order a bench warrant issue for the arrest of the respondent to lie in the Registry for seven days.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE - where respondent convicted by own plea of one count of dangerous operation of a motor vehicle causing grievous bodily harm with a circumstance of aggravation – where respondent also pleaded guilty to a summary charge of driving a motor vehicle whilst under the influence of liquor – where sentence wholly suspended – where deterrent sentence necessary – where comparable sentences support a term of actual imprisonment – where appeal allowed Everett v R, Phillips v R (1994) 181 CLR 295, referred to R v Hine [2002] QCA 212, CA No 31 of 2002, 21 June 2002, referred to R v Hoffman; ex-parte A-G (1997) 98 A CrimR 177, referred to R v Melano; ex-parte A-G [1995] 2 Qd R 186, referred to R v Purcell; ex-parte A-G [1999] QCA 316, CA No 192 of 1999, 17 August 1999, referred to R v Rowley [1998] QCA 324, CA No 240 of 1998, 26 August 1998, referred to
COUNSEL:	M J Copley for the appellant A F Maher for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Lees Marshall Warnick for the respondent