R v Rowley - [1998] QCA 339

COURT OF APPEAL

[1998] QCA 339

McMURDO P PINCUS JA AMBROSE J

CA No 240 of 1998
THE QUEEN
v.

ANTHONY ROBERT ROWLEY

BRISBANE
..DATE 26/08/98
270898 T31/LZG14 M/T COA209/98
THE PRESIDENT: This is an application for leave to appeal
against a sentence imposed in the District Court at Brisbane
on 18 June 1998 on one charge of dangerous operation of a
vehicle causing grievous bodily harm with a circumstance of
aggravation. The applicant was sentenced to four years'
imprisonment with a recommendation for release on parole after
16 months. He was also disqualified from holding or obtaining
a driver's licence for two years.

The grounds of the application are firstly that the sentence is manifestly excessive. Secondly, it is claimed the learned sentencing judge failed to give full weight (a) to the extent of the applicant's personal injuries and need for ongoing medical and hospital treatment, (b) to the remorse demonstrated by the applicant, (c) to his cooperation with police and early plea by way of ex officio indictment, (d) the fact that the applicant's personal injuries made his time in prison more difficult for him, and (e) that he has not driven a motor vehicle since the offence occurred. Thirdly, he submits the prosecutor failed in his duty to the court to present the evidence against him fairly in that (a) he did not verify details of the victim's impact statement which was tendered to the Court unsigned, and (b) did not address the Court on the applicant's personal injuries and whether he would receive ongoing treatment and medical services whilst in gaol. This last ground was not pressed by the applicant, who represents himself, today.

The offence occurred at about 5.10 a.m. on 31 August 1997 when the applicant was driving his sedan along Nudgee Road, 270898 T31/LZG14 M/T COA209/98

Northgate. The weather was fine, the road was dry and it was still dark. Nudgee Road at that location was a built-up area with a speed limit of 60 km/h and was considered a "well travelled road". The applicant passed another vehicle travelling in the same direction at a speed estimated at about 100 km/h. He then entered an s-curve without braking. Police investigators estimated his speed at this time based on measurements taken at the scene from tyre marks at approximately 89 km/h.

The complainant was travelling in the opposite direction at about 50-60 km/h on his way to work. He was a 55-year-old horse trainer. The applicant's vehicle failed to negotiate the kerb and travelled onto the incorrect side of the road, colliding head on with the complainant's vehicle.

The complainant has suffered severe injuries, including a flail chest with multiple bilateral rib fractures; a compound fracture of the right knee; an acetabular fracture of the right hip; a fractured right ankle; a puncture wound to the left thigh; and assorted minor injuries. The most severe injury, the flail chest, if left untreated would have resulted in respiratory failure and death. The complainant was in…

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 Rowley

Details

AGLC: R v Rowley [1998] QCA 339
Case: [1998] QCA 339
Decision Date: 26/08/1998

CaseChat Overview and Summary

The case of R v Rowley involved an application for leave to appeal against a sentence imposed by the District Court at Brisbane. The applicant, Anthony Robert Rowley, was sentenced to four years' imprisonment with a recommendation for release on parole after 16 months, as well as a two-year disqualification from holding or obtaining a driver's licence, for dangerous operation of a vehicle causing grievous bodily harm with a circumstance of aggravation. The applicant contended that the sentence was manifestly excessive and that the sentencing judge failed to give full weight to various mitigating factors. The applicant also argued that the prosecutor did not present the evidence fairly, though this ground was not pressed. The key legal issues revolved around the appropriateness of the sentence and whether the sentencing judge adequately considered the mitigating factors presented.

The Court of Appeal, comprising McMurdo P, Pincus JA, and Ambrose J, found that the sentence was not manifestly excessive and that the sentencing judge had indeed considered the mitigating factors, including the applicant's personal injuries, remorse, and cooperation with authorities. The Court highlighted that the applicant had a prior history of alcohol-related driving offences and other convictions. The maximum penalty for the offence was 14 years imprisonment, but both the prosecution and defence agreed that four years was an appropriate sentence. The recommendation for parole recognised the mitigating factors of the case. The Court also noted that the prosecutor was not required to address the applicant's personal injuries and ongoing medical needs as these had been sufficiently presented by the defence. The Court found that the sentencing judge appropriately considered the victim impact statement, despite it not being signed by the victim.

The Court of Appeal unanimously dismissed the application for leave to appeal. It was recommended that the applicant receive treatment for his orthopaedic problems while incarcerated. The orders were that the application for leave to appeal against sentence was dismissed, and the Court recommended the applicant receive treatment as soon as possible for his orthopaedic problems whilst incarcerated.

Orders