R v Obern - [2002] QCA 444

SUPREME COURT OF QUEENSLAND

CITATION:

R v Obern [2002] QCA 444

PARTIES:

R
v
OBERN, Herbert John
(applicant)

FILE NO/S:

CA No 231 of 2002
DC No 671 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

25 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

3 October 2002

JUDGES:

Davies and Jerrard JJA and Helman J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Dismiss the application for leave to appeal against sentence

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant pleaded guilty to dangerous driving causing grievous bodily harm – where applicant was sentenced to 12 months imprisonment suspended after four months and disqualified from holding or obtaining a drivers’ licence for five years – where applicant complains only of the licence disqualification – where applicant contends that possession of a drivers’ licence is crucial to his employment – where applicant contends that disqualification of his licence will have a significant impact on his financial circumstances – whether licence disqualification period is manifestly excessive

Traffic Act 1949 (Qld), s 108BB
Transport Operation (Road Use Management) Act 1995 (Qld), s 86(3), s 131(2)
Transport Operations (Road Use Management – Driver Licensing) Regulation 1999 (Qld), reg 25

R v Broadbridge [1994] QCA 278; CA No 195 of 1994, 5 August 1994, distinguished
R v Whye [1997] QCA 320; CA No 234 of 1997, 17 July 1997, distinguished

COUNSEL:

The applicant appeared on his own behalf
MD Nicholson for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Qld) for the respondent

DAVIES JA: I agree with the reasons for judgment of Jerrard JA and with the order he proposes.

JERRARD JA: On 17 November 1999 the applicant Herbert Obern parked his Toyota Utility in Wickham Street in the Valley in Brisbane at about 7.45 a.m. Where he parked was a clearway from 7.00a.m to 9.00a.m. each Monday to Friday. An officer of the Queensland Police Service, Hunter Nicol authorised two employees from Ready Towing to remove the vehicle. Mr Obern returned to the utility as preparations were being made to tow it away. He entered the vehicle, and ignored Senior Sergeant Nicol’s identification of himself as a police officer, and his instructions to turn the utility engine off. Senior Sergeant Nicol feared Mr Obern might drive over one of the tow truck employees, who was crouched at the front of the utility trying to chain it. Sergeant Nicol attempted to remove the key from the vehicle, and Mr Obern seized Sergeant Nicol’s arm, reversed the vehicle, and then drove forward with the police officer’s arm trapped inside the vehicle. He drove across Wickham Street dragging with him the police officer, whose legs forcefully struck a pole, reversed the vehicle, and then drove further down Wickham Street.…

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 Obern

Details

AGLC: R v Obern [2002] QCA 444
Case: [2002] QCA 444
Decision Date: 25 October 2002

CaseChat Overview and Summary

The case of R v Obern involved the applicant who pleaded guilty to charges of dangerous driving causing grievous bodily harm. The applicant was sentenced to 12 months imprisonment, suspended after serving four months, and was also disqualified from holding or obtaining a driver’s licence for a period of five years. The applicant sought leave to appeal against the severity of the licence disqualification component of the sentence. The primary issue before the court was whether the disqualification period imposed on the applicant was manifestly excessive, particularly considering his reliance on his driver’s licence for employment and the significant impact such disqualification would have on his financial circumstances.

The court considered the factors relevant to sentencing, including the nature and circumstances of the offence, the culpability of the offender, and the need for deterrence and protection of the community. The court also took into account the personal circumstances of the applicant, including his employment status and the necessity of a driver’s licence for his livelihood. In assessing the disqualification period, the court evaluated whether it was proportionate to the offence committed and whether there were any mitigating factors that warranted a lesser penalty. Ultimately, the court determined that the sentence, including the licence disqualification, was not manifestly excessive and reflected the appropriate balance between punishment and deterrence.

Based on the above considerations, the court dismissed the application for leave to appeal against the sentence. The court found that the disqualification period was commensurate with the seriousness of the offence and did not constitute an unjust or disproportionate penalty. The court’s decision emphasised the importance of maintaining public safety and ensuring that sentences reflect the gravity of the criminal conduct, even in circumstances where the applicant’s personal circumstances may be adversely affected.

Orders

Orders of the court

Dismiss the application for leave to appeal against sentence

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 Obern [2002] QCA 444
PARTIES:	R v OBERN, Herbert John (applicant)
FILE NO/S:	CA No 231 of 2002 DC No 671 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	25 October 2002
DELIVERED AT:	Brisbane
HEARING DATE:	3 October 2002
JUDGES:	Davies and Jerrard JJA and Helman J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Dismiss the application for leave to appeal against sentence
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant pleaded guilty to dangerous driving causing grievous bodily harm – where applicant was sentenced to 12 months imprisonment suspended after four months and disqualified from holding or obtaining a drivers’ licence for five years – where applicant complains only of the licence disqualification – where applicant contends that possession of a drivers’ licence is crucial to his employment – where applicant contends that disqualification of his licence will have a significant impact on his financial circumstances – whether licence disqualification period is manifestly excessive Traffic Act 1949 (Qld), s 108BB Transport Operation (Road Use Management) Act 1995 (Qld), s 86(3), s 131(2) Transport Operations (Road Use Management – Driver Licensing) Regulation 1999 (Qld), reg 25 R v Broadbridge [1994] QCA 278; CA No 195 of 1994, 5 August 1994, distinguished R v Whye [1997] QCA 320; CA No 234 of 1997, 17 July 1997, distinguished
COUNSEL:	The applicant appeared on his own behalf MD Nicholson for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Qld) for the respondent