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R v Nikora

R v Nikora

Case [2014] QCA 192 12 August 2014

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Nikora [2014] QCA 192

PARTIES:

R
v
NIKORA, Rikihana Kimiora Patara
(applicant)

FILE NO/S:

CA No 26 of 2014
DC No 324 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

12 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

19 June 2014

JUDGES:

Fraser and Morrison JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was convicted pursuant to s 328A(4) of the Criminal Code 1899 (Qld) of dangerous operation of a vehicle causing death of two persons while adversely affected by an intoxicating substance and speeding – where the applicant was sentenced to seven years imprisonment, with parole eligibility after two and a half years – where the applicant was almost 19 years old – where the applicant held a provisional licence subject to a condition that no alcohol was permitted in the blood when driving – where the applicant had been drinking at a New Year’s Eve party – where the applicant reversed into another vehicle and was too drunk to provide his details – where the applicant was driving through a residential area at more than double the 60 kilometre per hour speed limit with two passengers for an extended period of time – where the applicant lost control of the vehicle and the vehicle rolled and crashed – where the two passengers were thrown from the vehicle and died at the scene – where an hour and a half after the accident the applicant’s blood alcohol concentration was 0.171 per cent – where the applicant’s only criminal history was a conviction for wilful damage – where the applicant’s traffic history contained no offences relating to speed or intoxication – where the deceased were the applicant’s cousins and the applicant’s extended family provided positive references – where the applicant was remorseful and had good prospects of rehabilitation – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER – where the learned sentencing judge was incorrectly informed of the maximum penalty in two authorities – where the applicant contends his Honour’s misapprehension as to the maximum penalty in those two authorities was an error entitling this Court to exercise its sentencing discretion afresh – whether the error caused the learned sentencing judge’s sentencing discretion to miscarry

Criminal Code 1899 (Qld), s 328A(4)

Director of Public Prosecutions v Edwards [2012] VSCA 293, considered
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
R v Armstrong[2007] QCA 146, considered
R v Blanch[2008] QCA 253, considered
R v CAN[2009] QCA 59, considered
R v Evans[2005] QCA 455, considered
R…

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 Nikora

Details

AGLC: R v Nikora [2014] QCA 192
Case: [2014] QCA 192
Decision Date: 12 August 2014

CaseChat Overview and Summary

The case of R v Nikora concerns an appeal against the sentence imposed on the applicant, who was convicted of dangerous operation of a vehicle causing the death of two people, under s 328A(4) of the Criminal Code 1899 (Qld). The applicant was found to be adversely affected by an intoxicating substance and speeding at the time of the offence. The applicant was sentenced to seven years imprisonment, with eligibility for parole after two and a half years. The applicant, who was almost 19 years old at the time of the offence, had a provisional licence with a condition prohibiting alcohol consumption while driving. The applicant had been drinking at a New Year’s Eve party before the incident. He reversed into another vehicle and was too intoxicated to provide his details. The applicant was driving through a residential area at more than double the speed limit with two passengers, leading to the loss of control of the vehicle, which subsequently rolled and crashed, resulting in the deaths of the two passengers. The applicant's blood alcohol concentration was found to be 0.171 per cent an hour and a half after the accident. The applicant had no prior criminal history and no traffic offences relating to speed or intoxication. The deceased were the applicant’s cousins, and his extended family provided positive references. The applicant expressed remorse and had good prospects of rehabilitation.

The primary legal issue before the court was whether the sentence imposed on the applicant was manifestly excessive. The applicant argued that his Honour, the sentencing judge, was incorrectly informed of the maximum penalty in two authorities, and that this misapprehension constituted an error that entitled the court to exercise its sentencing discretion afresh. The applicant contended that the error caused the sentencing judge's discretion to miscarry, thus warranting a reduction in the sentence. The court needed to determine whether the error in the maximum penalty was significant enough to warrant a fresh sentencing exercise and if it affected the overall discretion of the sentencing judge.

The court found that the sentencing judge's error regarding the maximum penalty in the cited authorities did not constitute grounds for interference with the sentence. The court held that the error did not cause the sentencing judge's discretion to miscarry. The court further found that the sentence was not manifestly excessive, taking into account the gravity of the offence, the applicant's age, the lack of prior criminal history, and the prospects for rehabilitation. The court emphasised the tragic consequences of the applicant's actions and the need for deterrence.

The application for a reduction in the sentence was refused. The court upheld the original sentence of seven years imprisonment, with parole eligibility after two and a half years.

Orders

Orders of the court

Application refused.

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.

Actions

Citations

R v Nikora [2014] QCA 192

Most Recent Citation

R v Thomas [2015] QCA 20

Cases Citing This Decision

R v James [2024] QCA 142
Citation 1

…lowed R v MBM (2011) 210 A Crim R 317; [2011] QCA 100, considered R v Nikora (2014) 243 A Crim R 498; [2014] QCA 192 , cited R v Norris; Ex parte Attorney-General (Qld) [2018] 3 Qd R 420; [2018] QCA 27 , followed R v Rogers [2009] QCA 10 , considered COUNSEL: S J Hedge for the applicant S L Dennis for the respond…
R v Middleton [2021] QCA 288
Citation 2

…dent – whether the sentence imposed was manifestly excessive R v Hopper [2011] QCA 296, cited R v Nikora (2014) 243 A Crim R 498; [2014] QCA 192, cited R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited COUNSEL: M J Copley QC for the applicant C N Marco for the respondent SOLICITORS: Anderson Legal for the applica…
R v Etheridge [2016] QCA 241
Citation 3 (Para 26)

…,[14] R v Blanch ,[15] R v Grabovica ,[16] R v Wilde, ex parte Attorney-General (Qld) ,[17] and R v Vance, ex parte Attorney-General (Qld) .[18] [14][2014] QCA 192. [15][2008] QCA 253. [16][2012] QCA 180. [17][2002] QCA 501. [18][2007] QCA 269.…
R v Schoner [2015] QCA 190
Citation 4 (Para 1)

…re imposed.[21] [14]T1-30. [15]T1-31. [16]T1-32. [17][2011] QCA 113. [18][2012] QCA 7. [19]T1-36. [20][2008] QCA 253 at [22]; cited in R v Nikora [2014] QCA 192. [21]T1-37.…
R v Thomas [2015] QCA 20
Citation 5 (Para 9)

…ed in those cases, neither seems to us to support the argument that the present applicant’s conduct was deserving of a nine year sentence. [9][2014] QCA 192. [10][2011] QCA 296 Conclusion…

See all citing cases →

Cases Cited

Director of Public Prosecutions v Edwards [2012] VSCA 293
Citation 1

…rry Criminal Code 1899 (Qld), s 328A(4) Director of Public Prosecutions v Edwards [2012] VSCA 293, considered Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Armstrong [2007] QCA 146, considered R v Blanch [2008] QCA 253, considered R v CAN [2009] QCA 59, considered R v Evans [2005] QCA 455, con…
R v Johnson [2011] QCA 78
Citation 2

…R 151; [2004] QCA 309, considered R v Gray [2005] QCA 280, considered R v Johnson [2011] QCA 78, considered R v Pham (2009) 197 A Crim R 246; [2009] QCA 242, cited R v Ross [2009] QCA 7, considered R v Sanderson [1998] QCA 237, considered R v Sheedy; ex parte A-G (Qld) [2007] QCA 183, considered R v Vessey; ex p…
R v Pham [2009] QCA 242
Citation 3

…onsidered R v Johnson [2011] QCA 78, considered R v Pham (2009) 197 A Crim R 246; [2009] QCA 242, cited R v Ross [2009] QCA 7, considered R v Sanderson [1998] QCA 237, considered R v Sheedy; ex parte A-G (Qld) [2007] QCA 183, considered R v Vessey; ex parte A-G (1996) 86 A Crim R 290; [1996] QCA 11, cited COUNSEL…
R v CAN [2009] QCA 59
Citation 4

…rmstrong [2007] QCA 146, considered R v Blanch [2008] QCA 253, considered R v CAN [2009] QCA 59, considered R v Evans [2005] QCA 455, considered R v Frost; ex parte A-G (2004) 149 A Crim R 151; [2004] QCA 309, considered R v Gray [2005] QCA 280, considered R v Johnson [2011] QCA 78, considered R v Pham (2009) 19…
R v Ross [2009] QCA 7
Citation 5

…A 78, considered R v Pham (2009) 197 A Crim R 246; [2009] QCA 242, cited R v Ross [2009] QCA 7, considered R v Sanderson [1998] QCA 237, considered R v Sheedy; ex parte A-G (Qld) [2007] QCA 183, considered R v Vessey; ex parte A-G (1996) 86 A Crim R 290; [1996] QCA 11, cited COUNSEL: T A Ryan for the applicant…
R v Blanch [2008] QCA 253
Citation 6 (Para 1)

…G (Qld) [18], R v Blanch [19], R v Gray [20] and R v Evans .[21] [18] R v Sheedy; ex parte A-G (Qld) [2007] QCA 183 (“ Sheedy ”). [19] R v Blanch [2008] QCA 253 (“ Blanch ”). [20] R v Gray [2005] QCA 280 (“ Gray ”). [21] R v Evans [2005] QCA 455 (“ Evans ”).…
R v Sheedy; ex parte A-G (Qld) [2007] QCA 183
Citation 7 (Para 1)

…the applicant referred to R v Sheedy; ex parte A-G (Qld) [18], R v Blanch [19], R v Gray [20] and R v Evans .[21] [18] R v Sheedy; ex parte A-G (Qld) [2007] QCA 183 (“ Sheedy ”). [19] R v Blanch [2008] QCA 253 (“ Blanch ”). [20] R v Gray [2005] QCA 280 (“ Gray ”). [21] R v Evans [2005] QCA 455 (“ Evans ”).…
R v Armstrong [2007] QCA 146
Citation 8

…ered Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Armstrong [2007] QCA 146, considered R v Blanch [2008] QCA 253, considered R v CAN [2009] QCA 59, considered R v Evans [2005] QCA 455, considered R v Frost; ex parte A-G (2004) 149 A Crim R 151; [2004] QCA 309, considered R v Gray [2005] QCA…
R v Evans [2005] QCA 455
Citation 9 (Para 1)

…G (Qld) [2007] QCA 183 (“ Sheedy ”). [19] R v Blanch [2008] QCA 253 (“ Blanch ”). [20] R v Gray [2005] QCA 280 (“ Gray ”). [21] R v Evans [2005] QCA 455 (“ Evans ”).…
R v Gray [2005] QCA 280
Citation 10 (Para 1)

…d R v Evans .[21] [18] R v Sheedy; ex parte A-G (Qld) [2007] QCA 183 (“ Sheedy ”). [19] R v Blanch [2008] QCA 253 (“ Blanch ”). [20] R v Gray [2005] QCA 280 (“ Gray ”). [21] R v Evans [2005] QCA 455 (“ Evans ”).…
Markarian v The Queen [2005] HCA 25
Citation 11

…s v Edwards [2012] VSCA 293, considered Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Armstrong [2007] QCA 146, considered R v Blanch [2008] QCA 253, considered R v CAN [2009] QCA 59, considered R v Evans [2005] QCA 455, considered R v Frost; ex parte A-G (2004) 149 A Crim R 151; [2004] QCA…
R v Frost; ex parte A-G [2004] QCA 309
Citation 12

…Evans [2005] QCA 455, considered R v Frost; ex parte A-G (2004) 149 A Crim R 151; [2004] QCA 309, considered R v Gray [2005] QCA 280, considered R v Johnson [2011] QCA 78, considered R v Pham (2009) 197 A Crim R 246; [2009] QCA 242, cited R v Ross [2009] QCA 7, considered R v Sanderson [1998] QCA 237, considered…
DPP v Lawrence [2004] VSCA 154
Citation 13

…[48](2004) 10 VR 125.…
R v Collier [2003] QCA 314
Citation 14 (Para 22)

…[40] Blanch at [22], citing R v Collier [2003] QCA 314 and R v Gray [2005] QCA 280 at [15].…
R v Sanderson [1998] QCA 237
Citation 15

…Crim R 246; [2009] QCA 242, cited R v Ross [2009] QCA 7, considered R v Sanderson [1998] QCA 237, considered R v Sheedy; ex parte A-G (Qld) [2007] QCA 183, considered R v Vessey; ex parte A-G (1996) 86 A Crim R 290; [1996] QCA 11, cited COUNSEL: T A Ryan for the applicant D A Holliday for the respondent SOLICITOR…
R v Vessey; ex parte A-G (Qld) [1996] QCA 11
Citation 16 (Para 1)

…son demonstrates that the applicant’s sentence was manifestly excessive; in fact, it supports the sentence imposed. [23] R v Vessey; ex parte A-G [1996] QCA 11.…

Legislation Cited

No legislation cited in this judgment.

CITATION:	R v Nikora [2014] QCA 192
PARTIES:	R v NIKORA, Rikihana Kimiora Patara (applicant)
FILE NO/S:	CA No 26 of 2014 DC No 324 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	12 August 2014
DELIVERED AT:	Brisbane
HEARING DATE:	19 June 2014
JUDGES:	Fraser and Morrison JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was convicted pursuant to s 328A(4) of the Criminal Code 1899 (Qld) of dangerous operation of a vehicle causing death of two persons while adversely affected by an intoxicating substance and speeding – where the applicant was sentenced to seven years imprisonment, with parole eligibility after two and a half years – where the applicant was almost 19 years old – where the applicant held a provisional licence subject to a condition that no alcohol was permitted in the blood when driving – where the applicant had been drinking at a New Year’s Eve party – where the applicant reversed into another vehicle and was too drunk to provide his details – where the applicant was driving through a residential area at more than double the 60 kilometre per hour speed limit with two passengers for an extended period of time – where the applicant lost control of the vehicle and the vehicle rolled and crashed – where the two passengers were thrown from the vehicle and died at the scene – where an hour and a half after the accident the applicant’s blood alcohol concentration was 0.171 per cent – where the applicant’s only criminal history was a conviction for wilful damage – where the applicant’s traffic history contained no offences relating to speed or intoxication – where the deceased were the applicant’s cousins and the applicant’s extended family provided positive references – where the applicant was remorseful and had good prospects of rehabilitation – whether the sentence was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER – where the learned sentencing judge was incorrectly informed of the maximum penalty in two authorities – where the applicant contends his Honour’s misapprehension as to the maximum penalty in those two authorities was an error entitling this Court to exercise its sentencing discretion afresh – whether the error caused the learned sentencing judge’s sentencing discretion to miscarry Criminal Code 1899 (Qld), s 328A(4) Director of Public Prosecutions v Edwards [2012] VSCA 293, considered Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Armstrong[2007] QCA 146, considered R v Blanch[2008] QCA 253, considered R v CAN[2009] QCA 59, considered R v Evans[2005] QCA 455, considered R…