R v Misumi

[2002] QCA 491

SUPREME COURT OF QUEENSLAND

CITATION:	R v Misumi [2002] QCA 491
PARTIES:	R v MISUMI, Kenji (applicant)
FILE NO/S:	CA No 256 of 2002 DC No 140 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED EXTEMPORE ON:	12 November 2002
DELIVERED AT:	Brisbane
HEARING DATE:	12 November 2002
JUDGES:	de Jersey CJ, Williams JA, Mullins J Separate reasons for judgment of each member of the court, each concurring as to the order made
ORDER:	Application for leave to appeal refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – GENERALLY – where applicant sentenced to six months imprisonment to be served by way of intensive correction order for dangerous operation of a motor vehicle causing grievous bodily harm – conviction recorded – where applicant driving under speed limit – where applicant indicated and turned right but collided with complainant’s vehicle which the applicant did not see – where applicant had no prior criminal or traffic history – whether sentence imposed is manifestly excessive – where sentence within range  R v Brown, CA No 167 of 1993, 4 August 1993,  distinguished R v Edwards [1996] QCA 141;CA No 430 of 1995, 31 January 1996, distinguished R v Hamilton [2000] QCA 286; CA No 75 of 2000, 21 July 2000, considered R v Harris; ex parte A-G (Qld) [1999] QCA 392; CA No 161 of 1999, 21 September 1999, considered R v Russo [1994] QCA 388; CA No 140 of 1994, 5 October 1994, considered
COUNSEL:	M E Johnson for the applicant D L Meredith for the respondent
SOLICITORS:	Price & Roobottom for applicant Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE:  I invite Justice Mullins to deliver the first judgment.

MULLINS J:  The applicant applies for leave to appeal against the sentence of six months' imprisonment, to be served by way of intensive correction order, imposed on him in the District Court at Southport, on 1 August 2002, for dangerous operation of a motor vehicle, causing grievous bodily harm.

The applicant was driving his Landrover four wheel drive in a northerly direction along Bailey Crescent, Southport, on
11 December 2000 and the complainant was driving his Ford Festiva sedan in the opposite direction.

The complainant was seen to be drinking from a bottle of beer and immediately prior to the impact between the two vehicles, the complainant's vehicle was seen to veer towards the centre of the carriageway, but not cross the centre line, before correcting its path of travel.

The applicant's vehicle was travelling slower than the designated speed limit of 50 kilometres per hour.  The right turn indicator was activated and the applicant's vehicle was then seen to turn right, cutting the corner across the path of the oncoming vehicle and a collision occurred.

The…