R v Proesser

[2007] QCA 61

SUPREME COURT OF QUEENSLAND

CITATION:

R v Proesser [2007] QCA 61

PARTIES:

R
v
PROESSER, Guy Elvis
(applicant/appellant)

FILE NO/S:

CA No 19 of 2007
DC No 693 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED EX TEMPORE ON:

5 March 2007

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2007

JUDGES:

Jerrard JA, Keane JA and Muir J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application allowed
2. Appeal allowed
3. Suspend the sentence immediately

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE – WHEN GRANTED – GENERALLY – where the applicant/appellant pleaded guilty to a charge of dangerous operation of a motor vehicle causing grievous bodily harm – where the case was characterised as one of momentary inattention – where the sentencing judge considered the importance of deterrence in sentencing the applicant/appellant – whether the sentence was manifestly excessive

R v Anderson [1998] QCA 355; CA no 284 of 1998, 10 November 1998, distinguished
R v Gruenert; ex parte A-G (Qld) [2005] QCA 154; CA No 439 of 2004, 13 May 2005 applied
R v Harris [1999] QCA 392; CA No 161 of 1999, 21 September 1999, considered

COUNSEL:

T Moynihan SC for the applicant/appellant
D R Mackenzie for the respondent

SOLICITORS:

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

JERRARD JA:  On the 29th of January 2007 Mr Proesser pleaded guilty in the Southport District Court to a charge of dangerous operation of a motor vehicle causing grievous bodily harm to another.  He was sentenced to 18 months imprisonment suspended after he had served three months with an operational period of 18 months.  He was also disqualified from holding or obtaining a driver's licence for three years.  He has applied for leave to appeal against that sentence arguing that it was manifestly excessive and that this Court should now suspend it.

The offence was committed on the 22nd of November 2005 when Mr Proesser was driving a borrowed vehicle, with which he was not familiar, along Smith Street at Southport, driving at the speed limit of 70 kilometres per hour and towards the intersection of that street with Kumbari Avenue.  He looked down to adjust the radio and when he looked back up he saw that the lights had turned amber and that the car in front of his was stopped at the intersection.  In an attempt to avoid colliding with the rear of that vehicle he applied the brakes and swerved his vehicle into the adjacent left turning lane.  His vehicle skidded and hit the complainant, who was on a pedestrian crossing on that lane.  The complainant suffered grievous bodily harm and spent four weeks in hospital.

The applicant does not complain that the head sentence…