R v Purcell; ex parte - [1999] QCA 316

IN THE COURT OF APPEAL [1999] QCA 316
SUPREME COURT OF QUEENSLAND

C A No 192 of 1999

Brisbane
[R v Purcell; ex parte A-G]

THE QUEEN
v

JAMES WILLIAM PURCELL
Respondent

EX PARTE: ATTORNEY-GENERAL OF QUEENSLAND
Appellant

McMurdo P
Thomas JA
Derrington J

Judgment delivered 17 August 1999
Joint reasons for judgment of McMurdo P and Thomas JA, separate concurring reasons of Derrington J
THE ATTORNEY-GENERAL'S APPEAL AGAINST SENTENCE IS ALLOWED.
THE SENTENCE IMPOSED BELOW IS SET ASIDE AND IN LIEU THEREOF IT IS ORDERED THAT THE RESPONDENT BE IMPRISONED FOR THREE YEARS WITH A RECOMMENDATION THAT HE BE CONSIDERED ELIGIBLE FOR RELEASE ON PAROLE AFTER SERVING 12 MONTHS OF THAT SENTENCE.
IT IS ORDERED THAT THE RESPONDENT BE DISQUALIFIED FROM HOLDING OR OBTAINING A DRIVER'S LICENCE FOR THREE YEARS.
CATCHWORDS: CRIMINAL LAW - APPEAL & NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL - APPLICATION TO INCREASE SENTENCE - whether sentence of two years imprisonment with a recommendation for parole after six months for dangerous operation of a vehicle causing grievous bodily harm with a circumstance of aggravation namely, a blood alcohol concentration of 0.174 was manifestly inadequate - whether sentence, upon review of comparable sentences, is within appropriate range.

R v Melano; ex parte Attorney-General [1995] 2 Qd R 183, followed.
R v de Rooy CA 105 of 1991, 1 August 1991; R v Quinlan CA 297 of 1994, 13 September 1994; R v King CA 516 of 1995, 20 March 1996; R v Shedlock [1996] QCA 164, CA 60 of 1996, 31 May 1996; R v Wurzbacher [1996] QCA 347, CA 264 of 1996, 20 September 1996; R v Ryan [1996] QCA 434, CA 367 of 1996, 8 November 1996; R v Ekstrom CA 229 of 1997, 23 September 1997; R v Rowley CA 240 of 1998, 26 August 1998, considered.
Penalties and Sentences Act 1992 s 9(2)(a), s 9(3)

Counsel:Mr W Clark for the appellant
Mr M Shanahan for the respondent

Solicitors:Director of Public Prosecutions (Queensland) for the appellant
Legal Aid Queensland for the respondent

Hearing Date: 3 August 1999

JOINT REASONS FOR JUDGMENT - McMURDO P AND THOMAS JA
Judgment delivered 17 August 1999

The respondent pleaded guilty in the District Court at Rockhampton on 14 May 1999 to one count of dangerous operation of a vehicle causing grievous bodily harm with a circumstance of aggravation that he was adversely affected by alcohol and the concentration of alcohol in the blood exceeded 150 mg of alcohol per 100 mg of blood. In fact, he had a blood alcohol concentration of 0.174 per cent. This offence occurred on 30 January 1999. The respondent was sentenced to two years imprisonment with a recommendation for release on parole after six months and he was disqualified from holding or obtaining a driver's licence for two and a half years.
The respondent was 24 years of age and had no prior criminal history, although, significantly, he had been charged under the Traffic Act 1949…

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 Purcell; ex parte

Details

AGLC: R v Purcell; ex parte [1999] QCA 316
Case: [1999] QCA 316
Decision Date: 17 August 1999

CaseChat Overview and Summary

The case before the court was an appeal by the Attorney-General against a sentence imposed on the respondent, Purcell, who had been convicted of driving while under the influence of alcohol and causing grievous bodily harm to a passenger. The court was required to determine whether the sentence imposed was appropriate in light of the seriousness of the offence and the need for general deterrence. The appeal was heard by Derrington J, who found that the sentence imposed was substantially inadequate.

The court considered the gravity of the harm caused by the respondent's driving and the importance of general deterrence in such cases. The respondent's driving was deemed to be seriously criminal, and his fault was not mere inadvertence or misjudgment. The respondent was on remand for an earlier drink driving charge at the time of the offence, and his level of intoxication was such that he had been warned not to drive. The respondent caused grievous bodily harm to his passenger, and the degree of harm was reasonably substantial. There were no unusual mitigating factors present in the case, such as serious personal injury to the respondent himself or substantial delay in bringing the charge. While the respondent's work history was creditable, the court noted that offences of this kind are sometimes committed by persons who might otherwise be of good character.

The court found that the sentence imposed was substantially inadequate and set it aside. In its place, the court ordered that the respondent be imprisoned for three years with a recommendation that he be considered eligible for release on parole after serving 12 months. The court also ordered that the respondent be disqualified from holding or obtaining a driver's licence for three years. The Attorney-General's appeal was allowed, and the sentence imposed by the lower court was set aside.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

We would allow the Attorney-General's appeal, set aside the sentence imposed below and in lieu thereof order that the respondent be imprisoned for three years with a recommendation that he be considered eligible for release on parole after serving 12 months of that sentence. In addition, we would order that he be disqualified from holding or obtaining a driver's licence for three years.REASONS FOR JUDGMENT - DERRINGTON JJudgment delivered 17 August 1999 The circumstances of the offence and other relevant facts relating to the sentence are set out in the decision of the President and Thomas JA. So too are the principal comparative sentences. This case has some serious features which certainly remove it from the bottom of the range. The respondent’s driving was seriously criminal and his fault was not mere inadvertence or misjudgment. He was on remand in respect of an earlier drink driving charge of which he was subsequently convicted, and on this occasion, such was his intoxication that he was warned not to drive at all. It is inherent in the charge that he caused his passenger grievous bodily harm, and its degree was reasonably substantial. There is no unusual mitigating factor about this case, such as serious personal injury to the respondent himself, or substantial delay in the bringing of the charge. His work history is creditable, but unfortunately offences of this kind are sometimes committed by persons who might otherwise be of good character. Such is the gravity of the harm done and so important is the need for general deterrence that prior good character loses much of its mitigating effect if the offence is serious. Consequently, despite the mitigating features present in this case, because of the gravity of the matters adverted to above, the sentence imposed was substantially inadequate and the sentence proposed by the President and Thomas JA in substitution for it, with which I respectfully agree, is the least that might be expected in circumstances of this kind.

Ratio Decidendi

Legal Principle Established

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