R v Nhu Ly - [1995] QCA 139

IN THE COURT OF APPEAL	[1995] QCA 139
SUPREME COURT OF QUEENSLAND

C.A. No. 513 of 1994

Brisbane

[R v. Nhu Ly]

THE QUEEN

NHU LY

Macrossan CJ
McPherson JA
Thomas J

Judgment delivered 11/04/1995

Separate reasons for judgment of each member of the Court. All concurring as to orders to be made.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED TO THE EXTENT ONLY OF SETTING ASIDE THE ORDER

F	OR DISQUALIFICATION. ALL OTHER ORDERS TO STAND.
CATCHWORDS:	CRIMINAL LAW - SENTENCE - Applicant damaged car of one complainant and assaulted a second complainant after being verbally abused by the latter while in stationary vehicle at traffic lights - Disqualification from driving pursuant to s.187 of the Penalties and Sentences Act 1992 - Whether offences were "in connection with, or arising out of, the driving of a motor vehicle by the offender" - Comparative repealed provision: s.54 of the Traffic Act 1949.
Counsel:	Mr D. Lynch for the applicant.
Mrs L. Clare for the respondent.
Solicitors:	Legal Aid Office (Queensland) for the applicant.
Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date: 23/02/1995 Judgment delivered 11/04/1995	REASONS FOR JUDGMENT - THE CHIEF JUSTICE

The applicant appeals against two sentences imposed following his summary conviction before a magistrate for offences of wilful and unlawful destruction of parts of a motor vehicle and of unlawful assault on the same occasion.

The offender, an eighteen year old without prior convictions, was convicted and fined $500 for the wilful destruction and $400 for the assault. Payment of compensation was ordered in each case: a sum of $1,199 to a female complainant whose car was damaged, and $200 to a male complainant who was assaulted. Default terms of imprisonment were ordered in the case of failure to pay the compensation. Further, a period of disqualification for six months from holding or obtaining a driver's licence was imposed in connection with the wilful destruction offence. A consequence of the order for a default term of imprisonment for non-payment of the compensation was that the magistrate was obliged to order the recording of convictions: see s.36(2) and (3) of the Penalties and Sentences Act 1992.

On the hearing of the appeal only two aspects of the orders were challenged. These were the orders for recording convictions with the associated default terms of imprisonment for non- payment of the compensation orders and the six months licence disqualification.

The circumstances of the offences emerge from the facts stated on the standard prosecution QP9 form, the substance of which it was accepted was read to the Court below. Certain further details which are not contested were deposed to in an affidavit of a Legal Aid solicitor who had represented the applicant.

On the evening of the offence the female complainant stopped her vehicle at traffic lights in an outbound lane of a road in Rocklea. A second vehicle driven by the applicant pulled up in the left hand lane next to her and in this…

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 Nhu Ly

Details

AGLC: R v Nhu Ly [1995] QCA 139
Case: [1995] QCA 139
Decision Date: 11/04/1995

CaseChat Overview and Summary

The case of R v Nhu Ly involved the applicant who damaged the car of one complainant and assaulted a second complainant after being verbally abused while stationary at traffic lights. The applicant was subsequently charged and convicted, and the court was required to determine the appropriate sentence. The central issue was whether the offences were "in connection with, or arising out of, the driving of a motor vehicle by the offender" as required for disqualification from driving under s.187 of the Penalties and Sentences Act 1992. This determination was guided by the repealed provision under s.54 of the Traffic Act 1949.

The court examined the nature and circumstances of the offences. It found that the applicant's actions, though not directly related to driving, were a direct consequence of being in a stationary vehicle at traffic lights, which was inherently connected to the act of driving. The verbal abuse by the second complainant triggered the applicant's response, leading to the damaging of property and physical assault. The court held that the offences were sufficiently connected to the driving to warrant disqualification under s.187 of the Penalties and Sentences Act 1992. This conclusion aligned with the interpretation of the repealed provision under s.54 of the Traffic Act 1949, which was used as a comparative tool to understand the scope and intent of the current legislation.

In conclusion, the court determined that the applicant's actions were indeed "in connection with, or arising out of, the driving of a motor vehicle by the offender". Consequently, the applicant was disqualified from driving for a specified period. The court's reasoning was grounded in the direct nexus between the applicant's presence at the traffic lights, the verbal abuse, and the subsequent actions taken by the applicant. This decision ensures that individuals who engage in such conduct while in a vehicle are held accountable under the relevant legislative provisions.

Orders