R v Nielsen - [2006] QCA 2

SUPREME COURT OF QUEENSLAND

CITATION:

R v Nielsen [2006] QCA 2

PARTIES:

R
v
NIELSEN, Bryan Harold
(applicant)

FILE NO/S:

CA No 301 of 2005
SC No 172 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

31 January 2006

DELIVERED AT:

Brisbane

HEARING DATE:

31 January 2006

JUDGES:

McMurdo P, McPherson JA and Muir 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 refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY – where applicant convicted on three counts of doing a malicious act with intent to do grievous bodily harm – where applicant had deliberately driven his car onto footpath and towards groups of people injuring three separate complainants – where applicant's blood alcohol level was over four times the lawful limit – where injuries to complainants did not have serious long-term effects – where applicant was remorseful – where applicant entered late plea of guilty –whether primary judge erred in giving insufficient weight to applicant's late plea of guilty – whether primary judge erred in imposing sentence of six years' imprisonment on each count of malicious act with intent – whether sentence was manifestly excessive in all the circumstances

Criminal Code 1899 (Qld), s 317, s 598

Cameron v The Queen (2002) 209 CLR 339, distinguished
R v Amituanai (1995) 78 A Crim R 588, cited
R v Hazeltine [1967] 2 QB 857, cited

R v Treptow; ex parte Attorney-General (Qld) [1995] QCA 582, followed

COUNSEL:

A W Moynihan for the applicant
B G Campbell for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: On 18 October 2005, the applicant pleaded guilty to three counts of doing a malicious act with intent to do grievous bodily harm. The prosecution accepted those pleas of guilty in satisfaction of the indictment before the court which also charged in the first alternative three counts of attempted murder and in the third alternative two counts of assault occasioning bodily harm whilst armed and one count of common assault, and in addition a count of dangerous operation of a vehicle with a circumstance of aggravation. The applicant was sentenced to six years imprisonment on each count of malicious act with intent. He applies for leave to appeal against his sentence contending that it is manifestly excessive and that the learned sentencing judge erred in giving insufficient weight to his plea of guilty. His counsel submits that a sentence of five years imprisonment suspended after serving 20 months should have been imposed.

The maximum penalty for each offence of malicious act with intent under s 317 Criminal Code is life imprisonment.

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 Nielsen

Details

AGLC: R v Nielsen [2006] QCA 2
Case: [2006] QCA 2
Decision Date: 31 January 2006

CaseChat Overview and Summary

The case of R v Nielsen involved an appeal against the sentence imposed by a primary judge following the applicant's conviction on three counts of doing a malicious act with intent to do grievous bodily harm. The applicant deliberately drove his car onto a footpath and towards groups of people, injuring three separate complainants. At the time of the incident, the applicant's blood alcohol level was over four times the lawful limit. The injuries sustained by the complainants did not have serious long-term effects. The applicant entered a late plea of guilty and expressed remorse for his actions.

The primary legal issues before the court were whether the primary judge erred in giving insufficient weight to the applicant's late plea of guilty, whether the primary judge erred in imposing a sentence of six years' imprisonment on each count of malicious act with intent, and whether the sentence was manifestly excessive in all the circumstances. The court had to consider the factors relevant to sentencing, including the nature and circumstances of the offence, the degree of culpability, and the interests of society.

The court held that the primary judge did not err in the weight given to the applicant's late plea of guilty. It was noted that the plea of guilty was an important factor to consider in sentencing, but it was not determinative of the sentence. The court also found that the primary judge did not err in imposing a sentence of six years' imprisonment on each count of malicious act with intent. The court considered the seriousness of the offences, the applicant's level of culpability, and the need for deterrence and denunciation. The court held that the sentence was not manifestly excessive in all the circumstances, as the applicant had committed a serious offence with a high degree of culpability.

The application for leave to appeal against the sentence was refused. The court held that the sentence imposed by the primary judge was within the range of appropriate sentences for the offences committed, and there were no grounds for the court to interfere with the sentence. The applicant's appeal against the sentence was dismissed, and the original sentence of six years' imprisonment on each count of malicious act with intent was upheld.

Orders

Orders of the court

Application for leave to appeal against sentence refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Nielsen [2006] QCA 2
PARTIES:	R v NIELSEN, Bryan Harold (applicant)
FILE NO/S:	CA No 301 of 2005 SC No 172 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	31 January 2006
DELIVERED AT:	Brisbane
HEARING DATE:	31 January 2006
JUDGES:	McMurdo P, McPherson JA and Muir 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 refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY – where applicant convicted on three counts of doing a malicious act with intent to do grievous bodily harm – where applicant had deliberately driven his car onto footpath and towards groups of people injuring three separate complainants – where applicant's blood alcohol level was over four times the lawful limit – where injuries to complainants did not have serious long-term effects – where applicant was remorseful – where applicant entered late plea of guilty –whether primary judge erred in giving insufficient weight to applicant's late plea of guilty – whether primary judge erred in imposing sentence of six years' imprisonment on each count of malicious act with intent – whether sentence was manifestly excessive in all the circumstances Criminal Code 1899 (Qld), s 317, s 598 Cameron v The Queen (2002) 209 CLR 339, distinguished R v Amituanai (1995) 78 A Crim R 588, cited R v Hazeltine [1967] 2 QB 857, cited R v Treptow; ex parte Attorney-General (Qld) [1995] QCA 582, followed
COUNSEL:	A W Moynihan for the applicant B G Campbell for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent