R v Roser - [2004] QCA 318

SUPREME COURT OF QUEENSLAND

CITATION:

R v Roser [2004] QCA 318

PARTIES:

R
v
ROSER, Matthew Scott
(applicant)

FILE NO/S:

CA No 265 of 2004
DC No 1432 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED EX TEMPORE ON:

1 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

1 September 2004

JUDGES:

McMurdo P and Williams and Jerrard JJA
Separate reasons for judgment of each member of the Court, McMurdo P and Jerrard JA concurring as to the orders made, Williams JA dissenting

ORDERS:

1.   Grant application for leave to appeal against sentence

2.   Allow the appeal

3.   Instead of ordering that the imprisonment be suspended after three months order that it be suspended forthwith

CATCHWORDS:

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FIRST OFFENDERS – SUSPENSION OF SENTENCE – PARTICULAR CASES – where applicant convicted of dangerous operation of a motor vehicle – where sentenced to 12 months imprisonment suspended after three months – where applicant admitted at the scene to driving 40 km over the speed limit and causing head-on collision – where driver in oncoming car sustained substantial injuries – where applicant showed immediate remorse and had no criminal history – whether fully suspended sentence was within range

R v Anderson (1998) 104 A Crim R 489, cited
R v Grant [1998] QCA 238; CA No 143 of 1998, 15 July 1998, cited
R v Hamilton [2000] QCA 286; CA No 75 of 2000; 21 July 2000, cited
R v Harris; ex parte A-G (Qld) [1999] QCA 392; CA No 161 of 1999, 21 September 1999, cited
R v Wales [2002] QCA 463; CA No 254 of 2002, 31 October 2002, distinguished

COUNSEL:

S P Barry for the applicant
M J Copley for the respondent

SOLICITORS:

Ryan & Bosscher for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: The applicant pleaded guilty on 30 July this year to one count of dangerous operation of a motor vehicle causing grievous bodily harm on 10 November 2003. He was convicted and sentenced to 12 months imprisonment suspended after three months and was disqualified from holding or obtaining a driver's licence for two years. In respect of a summary offence of unlicensed driving he was convicted but not further punished. He contends that the sentence was manifestly excessive.

He has no criminal history or traffic history. He was 17 at the time of the offences and is now 18 years old. The maximum penalty was seven years imprisonment.

The circumstances of his offending are as follows. At about 9.30 p.m. he drove his mother's car, without her permission, south on Deebing Creek Road near Ipswich, a sealed semi-rural road, at speeds of up to 120 kilometres per hour. The speed limit is 80 kilometres per hour. The complainant, a 19 year old woman, was driving her car in the opposite direction. When the applicant saw the lights of her car he braked hard,…

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 [2004] QCA 318
Case: [2004] QCA 318
Decision Date: 1 September 2004

CaseChat Overview and Summary

The case of R v Roser involved the applicant, who was convicted of dangerous operation of a motor vehicle. The applicant had driven at a speed 40 km over the limit, resulting in a head-on collision with another vehicle. The driver of the oncoming car sustained substantial injuries. The applicant had no criminal history and demonstrated immediate remorse at the scene of the accident. The court sentenced the applicant to 12 months imprisonment, suspended after three months.

The legal issues before the court were whether the sentence imposed was within the appropriate range and whether the court should consider the applicant's remorse and lack of criminal history. The court had to determine if the sentence was lenient enough given the seriousness of the offence and the consequences of the applicant's actions. The applicant argued that the sentence was too harsh, and the suspension period was insufficient, considering their remorse and clean criminal record.

The court found that while the offence was serious, the applicant's immediate remorse and lack of criminal history were significant mitigating factors. The court held that the sentence was too severe, and the period of suspension was inadequate. Consequently, the court allowed the appeal and substituted the original sentence with one that was suspended forthwith, reflecting the mitigating factors present in the case. The court's decision emphasised the importance of considering individual circumstances in sentencing, particularly for first offenders who display remorse.

Orders

Orders of the court

1. Grant application for leave to appeal against sentence

2. Allow the appeal

3. Instead of ordering that the imprisonment be suspended after three months order that it be suspended forthwith

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 [2004] QCA 318
PARTIES:	R v ROSER, Matthew Scott (applicant)
FILE NO/S:	CA No 265 of 2004 DC No 1432 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED EX TEMPORE ON:	1 September 2004
DELIVERED AT:	Brisbane
HEARING DATE:	1 September 2004
JUDGES:	McMurdo P and Williams and Jerrard JJA Separate reasons for judgment of each member of the Court, McMurdo P and Jerrard JA concurring as to the orders made, Williams JA dissenting
ORDERS:	1. Grant application for leave to appeal against sentence 2. Allow the appeal 3. Instead of ordering that the imprisonment be suspended after three months order that it be suspended forthwith
CATCHWORDS:	CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FIRST OFFENDERS – SUSPENSION OF SENTENCE – PARTICULAR CASES – where applicant convicted of dangerous operation of a motor vehicle – where sentenced to 12 months imprisonment suspended after three months – where applicant admitted at the scene to driving 40 km over the speed limit and causing head-on collision – where driver in oncoming car sustained substantial injuries – where applicant showed immediate remorse and had no criminal history – whether fully suspended sentence was within range R v Anderson (1998) 104 A Crim R 489, cited R v Grant [1998] QCA 238; CA No 143 of 1998, 15 July 1998, cited R v Hamilton [2000] QCA 286; CA No 75 of 2000; 21 July 2000, cited R v Harris; ex parte A-G (Qld) [1999] QCA 392; CA No 161 of 1999, 21 September 1999, cited R v Wales [2002] QCA 463; CA No 254 of 2002, 31 October 2002, distinguished
COUNSEL:	S P Barry for the applicant M J Copley for the respondent
SOLICITORS:	Ryan & Bosscher for the applicant Director of Public Prosecutions (Queensland) for the respondent