R v Robinson - [2004] QCA 467

SUPREME COURT OF QUEENSLAND

CITATION:

R v Robinson [2004] QCA 467

PARTIES:

R
v
ROBINSON, David Nial
(applicant)

FILE NO/S:

CA No 330 of 2004
DC No 3205 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

3 December 2004

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2004

JUDGES:

McPherson and Jerrard JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for leave to amend the notice of appeal and to appeal the conviction dismissed

2. Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY – PARTICULAR CASES – where applicant sought to withdraw plea of guilty on appeal – where applicant pleaded guilty to dangerous operation of a motor vehicle causing grievous bodily harm while adversely affected by alcohol – where applicant’s BAC reading after incident was 0.06 per cent – whether that circumstance of aggravation made out on the evidence – whether failure to set aside plea would result in miscarriage of justice

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where applicant convicted of dangerous operation of a motor vehicle causing grievous bodily harm while adversely affected by alcohol – where applicant sentenced to two and a half years imprisonment suspended after nine months – whether sentence manifestly excessive

Meissner v The Queen (1995) 184 CLR 132, cited
R v McGuire; ex parte A-G(Qld) [2002] QCA 439; CA No 197 of 2002, 18 October 2002, considered
R v Wickett [2003] QCA 57; CA No 359 of 2002, 20 February 2003, considered

COUNSEL:

K A Mellifont for the applicant
B G Campbell for the respondent

SOLICITORS:

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

McPHERSON JA: I agree with Jerrard JA that this application for leave to appeal against sentence should be dismissed.

Matters that lend weight to the conclusion that this is a serious example of dangerous driving meriting the punishment imposed is that it took place right outside the entrance to a suburban State school at or shortly after 3 pm when the children and their parents were, as everyone knows and can see on such occasions, milling around in readiness for going home. It therefore behoved the applicant to take extra care for the safety of those persons and particularly the young children, who are prone to act impulsively and unpredictably in conditions like those.

Instead, the applicant drove his vehicle at an excessive speed estimated at some 20 kph above the prescribed limit of 40 kph in such an area. To avoid a car ahead of him, which was waiting to turn right and indicating an intention of doing so,…

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 Robinson

Details

AGLC: R v Robinson [2004] QCA 467
Case: [2004] QCA 467
Decision Date: 3 December 2004

CaseChat Overview and Summary

In the case of R v Robinson, the applicant appealed against his conviction and sentence in the Court of Appeal. The applicant pleaded guilty to dangerous operation of a motor vehicle causing grievous bodily harm while adversely affected by alcohol. The applicant sought to withdraw his guilty plea, arguing that the circumstances of aggravation did not exist, and that his sentence was manifestly excessive. The court was required to determine whether the circumstances of aggravation were made out on the evidence, whether the failure to set aside the plea would result in a miscarriage of justice, and whether the sentence was manifestly excessive.

The court examined the evidence and concluded that the circumstances of aggravation were made out on the evidence. The court found that the applicant's blood alcohol concentration reading after the incident was 0.06 per cent, which was an aggravating circumstance. The court also found that the failure to set aside the plea would not result in a miscarriage of justice. The court considered the seriousness of the offence, the need for deterrence, and the need to protect the community. The court concluded that the sentence was not manifestly excessive.

The court dismissed the application for leave to amend the notice of appeal and to appeal the conviction. The court also dismissed the application for leave to appeal against sentence. The court found that the applicant's arguments did not provide sufficient grounds for allowing the appeal against conviction or sentence. The court noted that the applicant had pleaded guilty to a serious offence and that the sentence reflected the seriousness of the offence. The court also noted that the applicant had a previous conviction for a similar offence, which was a relevant factor in determining the sentence.

Orders

Orders of the court

1. Application for leave to amend the notice of appeal and to appeal the conviction dismissed

2. Application for leave to appeal against sentence dismissed

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.

CITATION:	R v Robinson [2004] QCA 467
PARTIES:	R v ROBINSON, David Nial (applicant)
FILE NO/S:	CA No 330 of 2004 DC No 3205 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	3 December 2004
DELIVERED AT:	Brisbane
HEARING DATE:	23 November 2004
JUDGES:	McPherson and Jerrard JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to amend the notice of appeal and to appeal the conviction dismissed 2. Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY – PARTICULAR CASES – where applicant sought to withdraw plea of guilty on appeal – where applicant pleaded guilty to dangerous operation of a motor vehicle causing grievous bodily harm while adversely affected by alcohol – where applicant’s BAC reading after incident was 0.06 per cent – whether that circumstance of aggravation made out on the evidence – whether failure to set aside plea would result in miscarriage of justice CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where applicant convicted of dangerous operation of a motor vehicle causing grievous bodily harm while adversely affected by alcohol – where applicant sentenced to two and a half years imprisonment suspended after nine months – whether sentence manifestly excessive Meissner v The Queen (1995) 184 CLR 132, cited R v McGuire; ex parte A-G(Qld) [2002] QCA 439; CA No 197 of 2002, 18 October 2002, considered R v Wickett [2003] QCA 57; CA No 359 of 2002, 20 February 2003, considered
COUNSEL:	K A Mellifont for the applicant B G Campbell for the respondent
SOLICITORS:	Russo Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent