R v Ross

Case [2009] QCA 7 10 February 2009

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Ross [2009] QCA 7

PARTIES:

R
v
ROSS, Alan Edward
(applicant)

FILE NO/S:

CA No 276 of 2008
DC No 204 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED EX TEMPORE ON:

10 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2009

JUDGES:

de Jersey CJ, Fraser JA and P Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Application refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCSSIVE OR INADEQUATE – where the applicant was sentenced to 8 years imprisonment for dangerous operation of a motor vehicle causing the deaths of his two infant children – where the applicant was intoxicated – where the applicant was speeding – where the applicant left the scene before police arrived – whether the sentence was manifestly excessive because of the absence of a parole recommendation

Criminal Code Act 1899 (Qld), s 328A(4)

R v Frost; ex parte A-G (Qld) (2004) 149 A Crim R 151; [2004] QCA 309, distinguished
R v Vessey; ex parte A-G (Qld) (1996) 86 A Crim R 290; [1996] QCA 11, distinguished

COUNSEL:

C Reid for the applicant
G Cummings for the respondent

SOLICITORS:

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

THE CHIEF JUSTICE: The applicant was sentenced in October of 2008 to eight years imprisonment with no recommendation as to parole for the dangerous operation of a motor vehicle causing the deaths of his two infant children, who were passengers in the vehicle along with their mother, his defacto partner.

One of the children died at the scene. That was Khye, who was then aged two years and eight months. The other child, Zac, who was aged eight months, died subsequently as a result of severe injuries he suffered in consequence of the crash.

The charge included three circumstances of aggravation. The applicant was intoxicated, he was speeding and he left the scene knowing of the death and the injuries before any police officer arrived. The maximum penalty under section 328A(4) of the Criminal Code, which had been substantially amended with effect from 20 March 2007, was 14 years imprisonment.

The applicant seeks leave to appeal against the sentence. Mr Reid, his counsel, has submitted that a recommendation for parole after one third of the eight year head term - that is - after 32 months - should have been added. Or alternatively, that the applicant should have been sentenced to seven years imprisonment.

At the time of the offence, the applicant was 25 years of age. The offence occurred in June 2007. He had a relatively short criminal history, which had not involved imprisonment, and a history of traffic offending including unlicensed driving - four instances of that - and two instances of drink driving - offences…

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 Ross

Details

AGLC: R v Ross [2009] QCA 7
Case: [2009] QCA 7
Decision Date: 10 February 2009

CaseChat Overview and Summary

In the case of R v Ross, the applicant appealed against his sentence of eight years imprisonment, imposed after he was convicted of dangerous operation of a motor vehicle causing the deaths of his two infant children. The primary issue for the court was to determine whether the sentence was manifestly excessive or inadequate in light of the unique circumstances surrounding the incident. The applicant had been intoxicated, speeding, and had fled the scene before the police arrived, all of which contributed to the tragic outcome. The court was tasked with examining the severity of the sentence and whether the absence of a parole recommendation warranted interference.

The court considered various factors in assessing whether the sentence was manifestly excessive, including the nature and circumstances of the offence, the culpability of the offender, and the need for the sentence to serve as a deterrent and to protect the community. It was noted that the applicant's actions were egregious and resulted in the loss of two young lives, which warranted a significant punishment. The court also acknowledged the importance of considering the offender's level of remorse and the potential for rehabilitation. However, the absence of a parole recommendation was not deemed to be a sufficient ground for interference with the sentence.

Ultimately, the court found that the sentence was not manifestly excessive or inadequate. The court emphasised the gravity of the offence and the need to uphold the principles of general and specific deterrence, as well as the protection of the community. The court held that the absence of a parole recommendation did not render the sentence manifestly excessive, as it was still within the range of sentences that could be considered appropriate for the offence. The application for appeal against the sentence was therefore refused.

Orders

Orders of the court

Application refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Ross [2009] QCA 7

Most Recent Citation

R v Blackaby [2010] QCA 84

Cases citing this decision · 7 of 7 shown

Day v Commissioner of Police
[2017] QDC 77 Para 1

…the one third mark is “an important way of properly recognising the significance of pleas of guilty and other mitigating circumstances”: R v Ross [2009] QCA 7 at [6]; and see R v Torrens [2011] QCA 38, and R v Robertson [2008] QCA 164 at [2]-[6].…
R v Moody
[2016] QCA 92 Para 6

…further submitted that Frost , where there was a sentence of nine years with no recommendation for parole, was a significantly more serious case. [6][2009] QCA 7. [7](2004) 149 A Crim R 151.…
R v Thomas
[2015] QCA 20 Para 7

…been driving and how the accident had occurred. That absence of remorse was no doubt a factor in the decision to make no parole recommendation. [6][2009] QCA 7.…
R v Sheldon
[2014] QCA 328 Para 1

…incident, a sentence of eight years imprisonment was imposed without any recommendation for parole (despite a plea of guilty). [6][1996] QCA 11. [7][2009] QCA 7. [8][2011] QCA 296. [9][2009] QCA 96.…
R v Nikora
[2014] QCA 192

…A 78, considered R v Pham (2009) 197 A Crim R 246; [2009] QCA 242, cited R v Ross [2009] QCA 7, considered R v Sanderson [1998] QCA 237, considered R v Sheedy; ex parte A-G (Qld) [2007] QCA 183, considered R v Vessey; ex parte A-G (1996) 86 A Crim R 290; [1996] QCA 11, cited COUNSEL: T A Ryan for the applicant…
R v Hopper
[2011] QCA 296 Para 1

…The applicant also referred to a case in which eight years’ imprisonment was imposed, R v Ross [2009] QCA 7. It was said to be a “far worse … case.” Ross’s dangerous driving killed his two infant children. He was drunk and driving at about 138 kmph in a 70 kmph zone. The car failed to take a turn and became air…
R v Blackaby
[2010] QCA 84 Para 1

…d principally on the decision in R v Hallett [1] although her Honour was undoubtedly influenced by the decision in R v Ross. [2] [1][2009] QCA 96. [2][2009] QCA 7.…

View all 7 citing cases →

Cases cited in this decision · 7 of 7 shown

R v. Hodges
[2008] QCA 335

…lly higher term of imprisonment. I am not suggesting, however, any mathematical approach to the analysis. As to R v Hodges; ex parte Attorney General [2008] QCA 335, it was a case of one death, and a four and a half year term imposed was plainly considered lenient, even though not increased on appeal.…
R v Blanch
[2008] QCA 253

…A 247 where the sentence was six years with parole eligibility after two and a half years, there was one consequent death; and as with the R v Blanch [2008] QCA 253, where the penalty was six years imprisonment with parole after one third, and there was one death, together with a case of grievous bodily harm, the…
R v. Bains
[2008] QCA 247

…because of the multiple deaths it should, I consider, be seen as more extreme than Vessey . Of the other cases to which we were referred, in R v Bain [2008] QCA 247 where the sentence was six years with parole eligibility after two and a half years, there was one consequent death; and as with the R v Blanch [2008…
R v Armstrong
[2007] QCA 146

…005] QCA 120, where the sentence sustained on appeal was six years imprisonment with parole recommended after two and a half years, and R v Armstrong [2007] QCA 146, where the penalty was five years imprisonment suspended after 20 months. In Armstrong's case, there was one death. Each was a prisoner's appeal that…
R v Smout
[2005] QCA 120

…Counsel for the applicant relied on R v Smout [2005] QCA 120, where the sentence sustained on appeal was six years imprisonment with parole recommended after two and a half years, and R v Armstrong [2007] QCA 146, where the penalty was five years imprisonment suspended after 20 months. In Armstrong's case, there…
R v Frost; ex parte A-G
[2004] QCA 309

…e absence of a parole recommendation Criminal Code Act 1899 (Qld), s 328A(4) R v Frost; ex parte A-G (Qld) (2004) 149 A Crim R 151; [2004] QCA 309, distinguished R v Vessey; ex parte A-G (Qld) (1996) 86 A Crim R 290; [1996] QCA 11, distinguished COUNSEL: C Reid for the applicant G Cummings for the respondent SOLI…
R v Vessey; ex parte A-G (Qld)
[1996] QCA 11

…t; ex parte A-G (Qld) (2004) 149 A Crim R 151; [2004] QCA 309, distinguished R v Vessey; ex parte A-G (Qld) (1996) 86 A Crim R 290; [1996] QCA 11, distinguished COUNSEL: C Reid for the applicant G Cummings for the respondent SOLICITORS: Legal Aid Queensland for the applicant Director of Public Prosecutions (Quee…

Legislation cited in this decision · 1

Criminal Code Act 1899 (Qld)
328A(4) 1 mention

CITATION:	R v Ross [2009] QCA 7
PARTIES:	R v ROSS, Alan Edward (applicant)
FILE NO/S:	CA No 276 of 2008 DC No 204 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED EX TEMPORE ON:	10 February 2009
DELIVERED AT:	Brisbane
HEARING DATE:	10 February 2009
JUDGES:	de Jersey CJ, Fraser JA and P Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCSSIVE OR INADEQUATE – where the applicant was sentenced to 8 years imprisonment for dangerous operation of a motor vehicle causing the deaths of his two infant children – where the applicant was intoxicated – where the applicant was speeding – where the applicant left the scene before police arrived – whether the sentence was manifestly excessive because of the absence of a parole recommendation Criminal Code Act 1899 (Qld), s 328A(4) R v Frost; ex parte A-G (Qld) (2004) 149 A Crim R 151; [2004] QCA 309, distinguished R v Vessey; ex parte A-G (Qld) (1996) 86 A Crim R 290; [1996] QCA 11, distinguished
COUNSEL:	C Reid for the applicant G Cummings for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent