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R v Osborne

R v Osborne

Case [2014] QCA 291 21 November 2014

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Osborne [2014] QCA 291

PARTIES:

R
v
OSBORNE, Christopher James
(applicant)

FILE NO/S:

CA No 145 of 2014
DC No 145 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

21 November 2014

DELIVERED AT:

Brisbane

HEARING DATE:

21 October 2014

JUDGES:

Holmes JA and McMeekin and Henry JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.      Application for leave to appeal granted.

2.      Appeal allowed.

3.      Vary the order that the term of imprisonment be suspended after serving a period of 14 months imprisonment and instead order the term of imprisonment be suspended after serving a period of nine months imprisonment.

4.      Vary the order that the applicant be disqualified from holding or obtaining a driver’s licence for a period of five years and instead order the applicant be disqualified from holding or obtaining a driver’s licence for a period of two years.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted of one count of dangerous operation of a vehicle causing death and grievous bodily harm – where applicant drove his wide load vehicle past cyclists, striking two with his wide load – where applicant sentenced to three and a-half years imprisonment suspended after 14 months – where applicant disqualified from holding or obtaining a driver’s licence for five years – whether there should be a reduction of the period of suspension of imprisonment – whether there should be a reduction in the licence disqualification period

Criminal Code and Civil Liability Amendment Act 2007 (Qld), s 4
Penalties and Sentences Act 1992 (Qld), s 9, s 187
Transport Operations (Road Use Management) Act 1995 (Qld), s 86, s 131(2)

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, applied
R v Cunningham[2005] QCA 321, cited
R v Dean (2006) 45 MVR 542; [2006] QCA 256, cited
R v Harris; Ex parte Attorney-General (Qld)[1999] QCA 392, cited
R v Huxtable[2014] QCA 249, distinguished
R v MacDonald[2014] QCA 9, applied
R v Maher[2012] QCA 7, considered
R v Murphy[2009] QCA 93, considered
R v Nhu Ly [1996] 1 Qd R 543; [1995] QCA 139, considered
R v Plath[2003] QCA 567, cited
R v Price (2005) 43 MVR 573; [2005] QCA 52, cited
R v Torrens[2011] QCA 38, followed

COUNSEL:

J R Hunter QC, with J A Greggery, for the applicant
B J Power for the respondent

SOLICITORS:

Purcell Taylor Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: I agree with the reasons of Henry J and the orders he proposes.

McMEEKIN J: I have read the reasons of Henry J and agree with those reasons and the orders…

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 Osborne

Details

AGLC: R v Osborne [2014] QCA 291
Case: [2014] QCA 291
Decision Date: 21 November 2014

CaseChat Overview and Summary

The case before the court involved an appeal against sentence by the applicant, Osborne, who was convicted of dangerous operation of a vehicle causing death and grievous bodily harm. Osborne drove his wide load vehicle past cyclists, striking two individuals with his vehicle. Following his conviction, Osborne was sentenced to a three and a-half-year term of imprisonment, which was suspended after 14 months, and he was disqualified from holding or obtaining a driver’s licence for five years. The applicant sought to challenge the severity of the sentence, arguing that both the period of suspended imprisonment and the disqualification period were excessive. The court was required to determine whether the sentence was manifestly excessive or inadequate and, if so, whether it should be altered.

The central legal issue before the court was whether the sentence imposed on Osborne was manifestly excessive or inadequate. The court considered the principles governing the assessment of sentence, including the need for sentences to reflect the gravity of the offence and to serve purposes such as punishment, deterrence, and rehabilitation. The court also considered the particular circumstances of the case, including the nature of the offence and Osborne's culpability, as well as the impact of the sentence on him and on the victims and their families. The court needed to balance the need for an appropriate punishment with the broader principles of sentencing.

The court found that the original sentence imposed on Osborne was indeed manifestly excessive. It noted that while the offence was serious, the sentence should reflect a balance between the gravity of the offence and the principles of sentencing. The court was satisfied that a reduction in both the period of suspended imprisonment and the licence disqualification period was warranted. The court varied the sentence by reducing the period of imprisonment suspension from 14 months to nine months and the licence disqualification period from five years to two years. The court considered these changes to be more proportionate to the offence and its circumstances, while still achieving the purposes of sentencing.

The court granted Osborne's application for leave to appeal and allowed the appeal. It ordered that the term of imprisonment be suspended after serving a period of nine months imprisonment and that the applicant be disqualified from holding or obtaining a driver’s licence for a period of two years. This outcome reflects a considered approach to sentencing, taking into account both the severity of the offence and the principles that should guide the imposition of sentence.

Orders

Orders of the court

1. Application for leave to appeal granted.

2. Appeal allowed.

3. Vary the order that the term of imprisonment be suspended after serving a period of 14 months imprisonment and instead order the term of imprisonment be suspended after serving a period of nine months imprisonment.

4. Vary the order that the applicant be disqualified from holding or obtaining a driver’s licence for a period of five years and instead order the applicant be disqualified from holding or obtaining a driver’s licence for a period of two years.

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.

Citations

AGLC Citation

R v Osborne [2014] QCA 291

Most Recent Citation

R v Schoner [2015] QCA 190

Cases citing this decision · 23 of 23 shown

Davies v Commissioner of Police
[2025] QDC 9 Para 19

…The respondent referred the court to the R v Osbourne [2014] QCA 291 in which the Court of Appeal discussed the breath of the discretionary power under s 187. That applicant was disqualified from holding or obtaining a driver licence for a period of 5 years upon a plea of guilty for one count of dangerous operati…
R v Scanlan
[2023] QCA 206

…The operation of s 187(1) was considered by this Court in R v Osborne [2014] QCA 291. In that decision, Henry J, with whom Holmes JA (as she then was) and McMeekin J agreed, said:…
Wahlheim v Commissioner of Police
[2023] QDC 64 Para 14

…I have regard to the comparable decisions I referred to in Colley-Presnell and the principles in R v Osborne .[4] [4][2014] QCA 291; 69 MVR 45.…
Colley-Presnell v Commissioner of Police
[2023] QDC 63 Para 31

…the extent to which the disqualification period will operate as an additional penalty to other penalties imposed.” (Footnotes omitted) [19][2014] QCA 291; 69 MVR 45.…
Sutcliffe v Queensland Police Service
[2022] QDC 135

…354, discussed R v Coleman District Court of Queensland Judge Sheridan 25 May 2015, discussed R v Lyle [2013] QCA 293, discussed R v Osborne [2014] QCA 291; 69 MVR 45, applied R v Pearson [2015] QCA 118, discussed R v Plath [2003] QCA 567, discussed Wong v R [2001] HCA 64; (2001) 207 CLR 584, applied COUNSEL: Mr…
Fuller v RSPCA
[2021] QDC 94 Para 14

…p is not an irrelevant consideration.[82] [81][2004] HCA 42; (2004) 220 CLR 129 at [49]. [82] R v Plath [2003] QCA 567; R v Osborne (2014) 69 MVR 45; [2014] QCA 291.…
R v Gallaty
[2021] QCA 80 Para 5

…r sentences in such offences to carry, in an appropriate case, a period of actual custody to evidence denunciation for such conduct. [26] R v Osborne [2014] QCA 291 at [45].…
R v Muirhead; R v Muirhead; Ex parte
[2019] QCA 244 Para 33

…R v Huxtable ,[4] R v Osborne ,[5] R v Schoner [6] and R v Browning .[7] [1][2008] QCA 199. [2][2012] QCA 7. [3][2012] QCA 259. [4][2014] QCA 249. [5][2014] QCA 291. [6][2015] QCA 190. [7][2018] QCA 337.…
Smyl v Commissioner of Police
[2019] QDC 194 Para 1

…he principles to be applied in the exercise of the discretion to impose a period of disqualification as enunciated in the decision of R v Osborne [2014] QCA 291 by Henry J, with whom Holmes JA and McMeekin J agreed, from [56] to [59]:…
R v Lightbody
[2019] QCA 61 Para 1

…Osborne [61] and R v Schoner .[62] Each was decided after the amendments to the Code. [60](2014) 68 MVR 367; [2014] QCA 249. [61](2014) 69 MVR 45; [2014] QCA 291. [62](2015) 73 MVR 107; [2015] QCA 190.…
Cogliati v Queensland Police Commissioner
[2019] QDC 24 Para 1

…In R v Osborne, [4] Henry J said of the discretion to disqualify a licence, [4] [2014] QCA 291 at [57 - 59].…
R v Chmieluk; Ex parte
[2018] QCA 271 Para 14

…he relevant proportion was one-quarter in the case of R v Murphy and two-sevenths in the case of R v Maher .” (Footnotes omitted) [12][2014] QCA 291.…
Scott v Queensland Racing Integrity Commission (No 2)
[2018] QCAT 301 Para 39

…‘meeting the competing demands of deterrence and mitigating circumstances’.[40] As mentioned above, another aim is consistency. [40] R v Osborne [2014] QCA 291, [45].…
R v Gazzara
[2017] QCA 168 Para 9

…ident; and (h)comparable cases including R v MacDonald [21], R v Danter [22] and R v Osborne .[23] [21][2014] QCA 9. [22][2016] QCA 94. [23][2014] QCA 291. Her Honour had also been referred to R v Price [2005] QCA 52.…
Catalano v Department of Transport and Main Roads
[2017] QCAT 199 Para 8

…onment was ordered as well in Osborne. [13] Fletcher v Chief Executive, Department of Transport and Main Roads [2011] QCAT 201, [12] to [14]. [14][2014] QCA 291.…
Hughes v Commissioner of Police
[2016] QDC 325 Para 1

…he exercise of discretion under section 187(1) were discussed by Henry J, with whom Holmes JA and McMeekin J agreed, in R v Osborne (2014) 69 MVR 45; [2014] QCA 291, particularly at paragraphs 56 to 59 as follows (footnotes omitted):…
R v Wilson
[2016] QCA 301 Para 7

…relevant to consider whether the disqualification would assist in protecting the public from Ms Wilson’s commercial drug dealing. [5] R v Osborne [2014] QCA 291, [57] (Henry J, Holmes JA and McMeekin J agreeing).…
R v Etheridge
[2016] QCA 241 Para 2

…49] R v Maher ,[50] Nikora , R v Huxtable [51] and R v Osborn .[52] [48][2009] QCA 113. [49][2011] QCA 296. [50][2012] QCA 7. [51][2014] QCA 249. [52][2014] QCA 291.…
R v Liu
[2016] QCA 186 Para 12

…As was stated in R v Osborne [2014] QCA 291 at [46] by Henry J (with whom Holmes JA and McMeekin J agreed), in respect of the timing of a suspension of a sentence: “[It] should not be pre-determined arithmetically for the same reason there should not be a judicially determined sentencing starting point for the du…
R v Stevenson
[2016] QCA 162 Para 20

…he Court having drawn attention to Osborne , each side addressed upon it. Its significance to the resolution of this case will become apparent. [12][2014] QCA 291. ( Osborne )…
Healey v Commissioner of Police
[2016] QDC 192 Para 1

…levant principles in relation to the exercise of that discretion were discussed by Henry J, with whom Holmes JA and McMeekin J agreed, in R v Osborne [2014] QCA 291, particularly at paragraphs 56 to 59 as follows:…
R v Schoner
[2015] QCA 190 Para 1

…lso R v Hart [2008] QCA 199 at [17]; R v Gruenert; ex parte A-G (Qld) [2005] QCA 154 at [15]; R v MacDonald [2014] QCA 9 at[8], [70]; R v Osborne [2014] QCA 291 at [37]. [36][2000] QCA 382 at [20]. [37][2009] QCA 93 at [20].…
Miller v Commissioner of Police
[2015] QDC 213 Para 1

…I refer also to the comment made at page 52 of the Court of Appeal’s decision in R v Osborne [2014] QCA 291 which is reported in 69 MVR 45, and the point is made, in paragraph 40 at the top of page 52, that a professional truck driver owes a higher than ordinary standard of care by reason of the nature of the veh…

View all 23 citing cases →

Cases cited in this decision · 14 of 14 shown

R v Huxtable
[2014] QCA 249 Para 1

…dent’s position regarding the high head sentence but not the periods of suspension of imprisonment or driver’s licence disqualification. [12] [2014] QCA 249.…
R v Boubaris
[2014] QCA 199 Para 1

…[16] Hili v The Queen (2010) 242 CLR 520; R v Torrens [2011] QCA 38. [17] [2009] QCA 93. [18][2012] QCA 7. For other recent examples see R v Boubaris [2014] QCA 199 and R v MacDonald [2014] QCA 9 where in each instance sentences of 18 months imprisonment were suspended after three months, a proportion of 1/6.…
R v MacDonald
[2014] QCA 9 Para 1

…ar his vehicle’s path.[11] His was a significant breach of that high standard and it was met with an undoubtedly significant head sentence. [10][2014] QCA 9, [17], citing Thomas JA in R v Harris; ex parte Attorney-General (Qld) [1999] QCA 392, [42]. [11] See, by parity of reasoning, R v Price (2005) 43 MVR 573.…
R v Maher
[2012] QCA 7 Para 1

…phy [17] and two-sevenths in the case of R v Maher .[18] [16] Hili v The Queen (2010) 242 CLR 520; R v Torrens [2011] QCA 38. [17] [2009] QCA 93. [18][2012] QCA 7. For other recent examples see R v Boubaris [2014] QCA 199 and R v MacDonald [2014] QCA 9 where in each instance sentences of 18 months imprisonment…
R v Torrens
[2011] QCA 38 Para 1

…was one-quarter in the case of R v Murphy [17] and two-sevenths in the case of R v Maher .[18] [16] Hili v The Queen (2010) 242 CLR 520; R v Torrens [2011] QCA 38. [17] [2009] QCA 93. [18][2012] QCA 7. For other recent examples see R v Boubaris [2014] QCA 199 and R v MacDonald [2014] QCA 9 where in each instanc…
Hili v The Queen
[2010] HCA 45

…, s 9, s 187 Transport Operations (Road Use Management) Act 1995 (Qld), s 86, s 131(2) Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, applied R v Cunningham [2005] QCA 321, cited R v Dean (2006) 45 MVR 542; [2006] QCA 256, cited R v Harris; Ex parte Attorney-General (Qld) [1999] QCA 392, cited R v Huxtable…
R v Damrow
[2009] QCA 245 Para 1

…guilty and may occur after a trial.[15] [14] R v Murphy [2009] QCA 93; Penalties and Sentences Act 1992 (Qld) s 9. [15]See for instance R v Damrow [2009] QCA 245 where the applicant was found guilty by a jury of dangerous operation of a motor vehicle and sentenced to 18 months imprisonment suspended after eight…
R v Murphy
[2009] QCA 93 Para 1

…nce and mitigating circumstances. Such sentences in such cases are not confined to pleas of guilty and may occur after a trial.[15] [14] R v Murphy [2009] QCA 93; Penalties and Sentences Act 1992 (Qld) s 9. [15]See for instance R v Damrow [2009] QCA 245 where the applicant was found guilty by a jury of dangerous…
R v Dean
[2006] QCA 256

…ili v The Queen (2010) 242 CLR 520; [2010] HCA 45, applied R v Cunningham [2005] QCA 321, cited R v Dean (2006) 45 MVR 542; [2006] QCA 256, cited R v Harris; Ex parte Attorney-General (Qld) [1999] QCA 392, cited R v Huxtable [2014] QCA 249, distinguished R v MacDonald [2014] QCA 9, applied R v Maher [2012] QCA 7,…
R v Cunningham
[2005] QCA 321

…d Use Management) Act 1995 (Qld), s 86, s 131(2) Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, applied R v Cunningham [2005] QCA 321, cited R v Dean (2006) 45 MVR 542; [2006] QCA 256, cited R v Harris; Ex parte Attorney-General (Qld) [1999] QCA 392, cited R v Huxtable [2014] QCA 249, distinguished R v MacDo…
R v Price
[2005] QCA 52

…dered R v Nhu Ly [1996] 1 Qd R 543; [1995] QCA 139, considered R v Plath [2003] QCA 567, cited R v Price (2005) 43 MVR 573; [2005] QCA 52, cited R v Torrens [2011] QCA 38, followed COUNSEL: J R Hunter QC, with J A Greggery, for the applicant B J Power for the respondent SOLICITORS: Purcell Taylor Lawyers for the…
R v Plath
[2003] QCA 567

…] QCA 7, considered R v Murphy [2009] QCA 93, considered R v Nhu Ly [1996] 1 Qd R 543; [1995] QCA 139, considered R v Plath [2003] QCA 567, cited R v Price (2005) 43 MVR 573; [2005] QCA 52, cited R v Torrens [2011] QCA 38, followed COUNSEL: J R Hunter QC, with J A Greggery, for the applicant B J Power for the res…
R v Harris; ex parte A-G (Qld)
[1999] QCA 392 Para 1

…was met with an undoubtedly significant head sentence. [10][2014] QCA 9, [17], citing Thomas JA in R v Harris; ex parte Attorney-General (Qld) [1999] QCA 392, [42]. [11] See, by parity of reasoning, R v Price (2005) 43 MVR 573.…
R v Nhu Ly
[1995] QCA 139

…[2014] QCA 9, applied R v Maher [2012] QCA 7, considered R v Murphy [2009] QCA 93, considered R v Nhu Ly [1996] 1 Qd R 543; [1995] QCA 139, considered R v Plath [2003] QCA 567, cited R v Price (2005) 43 MVR 573; [2005] QCA 52, cited R v Torrens [2011] QCA 38, followed COUNSEL: J R Hunter QC, with J A Greggery, fo…

Legislation cited in this decision · 4

Penalties and Sentences Act 1992 (Qld)
9 2 mentions (from Para 1)
Transport Operations (Road Use Management) Act 1995 (Qld)
86 2 mentions (from Para 1)
Criminal Code and Civil Liability Amendment Act 2007 (Qld)
4 1 mention (from Para 1)
Transport (Road Use Management) Act 1995 (Qld)
1 mention (from Para 1)

CITATION:	R v Osborne [2014] QCA 291
PARTIES:	R v OSBORNE, Christopher James (applicant)
FILE NO/S:	CA No 145 of 2014 DC No 145 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	21 November 2014
DELIVERED AT:	Brisbane
HEARING DATE:	21 October 2014
JUDGES:	Holmes JA and McMeekin and Henry JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal granted. 2. Appeal allowed. 3. Vary the order that the term of imprisonment be suspended after serving a period of 14 months imprisonment and instead order the term of imprisonment be suspended after serving a period of nine months imprisonment. 4. Vary the order that the applicant be disqualified from holding or obtaining a driver’s licence for a period of five years and instead order the applicant be disqualified from holding or obtaining a driver’s licence for a period of two years.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted of one count of dangerous operation of a vehicle causing death and grievous bodily harm – where applicant drove his wide load vehicle past cyclists, striking two with his wide load – where applicant sentenced to three and a-half years imprisonment suspended after 14 months – where applicant disqualified from holding or obtaining a driver’s licence for five years – whether there should be a reduction of the period of suspension of imprisonment – whether there should be a reduction in the licence disqualification period Criminal Code and Civil Liability Amendment Act 2007 (Qld), s 4 Penalties and Sentences Act 1992 (Qld), s 9, s 187 Transport Operations (Road Use Management) Act 1995 (Qld), s 86, s 131(2) Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, applied R v Cunningham[2005] QCA 321, cited R v Dean (2006) 45 MVR 542; [2006] QCA 256, cited R v Harris; Ex parte Attorney-General (Qld)[1999] QCA 392, cited R v Huxtable[2014] QCA 249, distinguished R v MacDonald[2014] QCA 9, applied R v Maher[2012] QCA 7, considered R v Murphy[2009] QCA 93, considered R v Nhu Ly [1996] 1 Qd R 543; [1995] QCA 139, considered R v Plath[2003] QCA 567, cited R v Price (2005) 43 MVR 573; [2005] QCA 52, cited R v Torrens[2011] QCA 38, followed
COUNSEL:	J R Hunter QC, with J A Greggery, for the applicant B J Power for the respondent
SOLICITORS:	Purcell Taylor Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent