R v Roser - [2005] QCA 457

SUPREME COURT OF QUEENSLAND

CITATION:

R v Roser [2005] QCA 457

PARTIES:

R
v
ROSER, Margaret Ellen
(applicant)

FILE NO/S:

CA No 157 of 2005
DC No 801 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

9 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2005

JUDGES:

McPherson and Keane JJA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

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 SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - GENERALLY - where the applicant was convicted on her own plea of guilty of dangerous operation of a motor vehicle causing grievous bodily harm whilst adversely affected by an intoxicating substance - where the applicant had been overtaking in a dangerous manner that resulted in a head on collision with a vehicle travelling in the other direction - where the driver of the other vehicle suffered grievous bodily harm and was left with a permanent facial disfigurement - where the applicant's blood alcohol concentration at the time of the crash was estimated at between .11 and .15 - where the applicant had previously been fined on a number of occasions for drink driving - where the applicant was sentenced to imprisonment for four and a half years with a recommendation for post-prison community based release after 16 months - where the applicant was also disqualified from holding a driver's licence for three years - where the applicant had committed four further traffic offences between the date of the crash and the date of sentence - whether the sentence imposed on the applicant was manifestly excessive

Transport Operations (Road Use Management) Act 1995 (Qld), s 79(2), s 79A(2)

R v Anderson [2005] QCA 304; CA No 71 of 2005, 23 August 2005, cited

R v Balic [2005] QCA 212; CA No 57 of 2005, 17 June 2005, considered

R v Russell [2002] QCA 285; CA No 91 of 2002, 6 August 2002, considered

COUNSEL:

The applicant appeared on her own behalf
M J Copley for the respondent

SOLICITORS:

The applicant appeared on her own behalf
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: No reason has been shown for interfering with the sentence imposed in this case. For the reasons given by Keane JA, I would dismiss the application for leave to appeal.

KEANE JA: On 20 May 2005, the applicant was convicted on her own plea of guilty of the dangerous operation of a motor vehicle causing grievous bodily harm whilst adversely affected by an intoxicating substance. She was sentenced to imprisonment for four and a half years, with a recommendation for post-prison community based release ("ppcbr") after serving 16 months. She was also disqualified from holding or obtaining a…

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 Roser

Details

AGLC: R v Roser [2005] QCA 457
Case: [2005] QCA 457
Decision Date: 9 December 2005

CaseChat Overview and Summary

The appellant, Roser, was convicted on her own plea of guilty of dangerous operation of a motor vehicle causing grievous bodily harm while adversely affected by an intoxicating substance. The incident involved the appellant overtaking in a dangerous manner, leading to a head-on collision with another vehicle. The driver of the other vehicle suffered grievous bodily harm and a permanent facial disfigurement. The appellant's blood alcohol concentration at the time of the crash was estimated to be between 0.11 and 0.15, and she had previously been fined multiple times for drink driving. The court sentenced the appellant to imprisonment for four and a half years with a recommendation for post-prison community-based release after 16 months, along with a three-year disqualification from holding a driver's licence. The appellant subsequently committed four further traffic offences before sentencing.

The legal issues before the court were whether the sentence imposed on the appellant was manifestly excessive, and if the court should grant leave to appeal against the sentence. The court examined relevant case law and statutory provisions, including the Transport Operations (Road Use Management) Act 1995 (Qld), sections 79(2) and 79A(2). The court also considered precedent cases such as R v Anderson [2005] QCA 304; CA No 71 of 2005, 23 August 2005, R v Balic [2005] QCA 212; CA No 57 of 2005, 17 June 2005, and R v Russell [2002] QCA 285; CA No 91 of 2002, 6 August 2002.

The court found that the sentence imposed was not manifestly excessive. The court considered the gravity of the offence, the appellant's previous convictions, and her subsequent traffic offences. The court held that the sentence was appropriate given the circumstances of the case. The court also noted that the appellant had shown remorse and had taken steps to address her alcohol-related issues. The court concluded that the sentence was not manifestly excessive and dismissed the application for leave to appeal against the sentence.

The court dismissed the application for leave to appeal against the sentence.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

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 Roser [2005] QCA 457
PARTIES:	R v ROSER, Margaret Ellen (applicant)
FILE NO/S:	CA No 157 of 2005 DC No 801 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	9 December 2005
DELIVERED AT:	Brisbane
HEARING DATE:	22 November 2005
JUDGES:	McPherson and Keane JJA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	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 SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - GENERALLY - where the applicant was convicted on her own plea of guilty of dangerous operation of a motor vehicle causing grievous bodily harm whilst adversely affected by an intoxicating substance - where the applicant had been overtaking in a dangerous manner that resulted in a head on collision with a vehicle travelling in the other direction - where the driver of the other vehicle suffered grievous bodily harm and was left with a permanent facial disfigurement - where the applicant's blood alcohol concentration at the time of the crash was estimated at between .11 and .15 - where the applicant had previously been fined on a number of occasions for drink driving - where the applicant was sentenced to imprisonment for four and a half years with a recommendation for post-prison community based release after 16 months - where the applicant was also disqualified from holding a driver's licence for three years - where the applicant had committed four further traffic offences between the date of the crash and the date of sentence - whether the sentence imposed on the applicant was manifestly excessive Transport Operations (Road Use Management) Act 1995 (Qld), s 79(2), s 79A(2) R v Anderson [2005] QCA 304; CA No 71 of 2005, 23 August 2005, cited R v Balic [2005] QCA 212; CA No 57 of 2005, 17 June 2005, considered R v Russell [2002] QCA 285; CA No 91 of 2002, 6 August 2002, considered
COUNSEL:	The applicant appeared on her own behalf M J Copley for the respondent
SOLICITORS:	The applicant appeared on her own behalf Director of Public Prosecutions (Queensland) for the respondent