R v Ruka

Case [2009] QCA 113 5 May 2009

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Ruka [2009] QCA 113

PARTIES:

R
v
RUKA, Jody Kane
(applicant)

FILE NO/S:

CA No 36 of 2009
DC No 396 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

5 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

24 April 2009

JUDGES:

Muir and Chesterman JJA and Wilson 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 refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted on plea of guilty of dangerous operation of a motor vehicle causing death under s 328A of the Criminal Code 1899 (Qld) – where applicant sentenced to two years imprisonment with parole release date after serving six months – where applicant automatically suspended from holding a driver’s licence for six months – where applicant fell asleep at wheel – where applicant’s vehicle drifted on to wrong side of road into path of oncoming vehicle – where collision occurred – where driver of oncoming vehicle was killed – where applicant was aged 37 at time of offence – where applicant had no criminal history and some traffic history – whether sentencing judge erred in finding that a fully suspended sentence would be inappropriate – whether sentencing judge erred in finding case not one of momentary inattention – whether sentence manifestly excessive

Criminal Code 1899 (Qld), s 328A

Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14, applied
R v Cottam; ex parte A-G (Qld) (2004) 42 MVR 150; [2004] QCA 351, distinguished
R v Hart (2008) 50 MVR 424; [2008] QCA 199, considered
R v Manahan [2000] QCA 382, considered
R v Murphy [2009] QCA 93, considered
R v Pellow [1997] NSWSC 286, applied
R v Satalich (2004) 41 MVR 435; [2004] VSCA 132, cited
R v Vance; ex parte A-G (Qld) (2007) 48 MVR 375; [2007] QCA 269, applied
R v WR[2007] QCA 16, cited
R v Wood 130 A Crim R 518; [2002] WASCA 95, cited

COUNSEL:

P E Smith for the applicant
M B Lehane for the respondent

SOLICITORS:

Carne Reidy Herd Lawyers for the applicant
Director of Public Prosecutions (Qld) for the respondent

MUIR JA: I agree that the application for leave to appeal against sentence should be dismissed for the reasons given by Wilson J.

CHESTERMAN JA: I agree that the application for leave to appeal against sentence should be dismissed for the reasons given by Wilson J.

WILSON J: On 6 February 2009 the applicant pleaded guilty to a charge of dangerous operation of a motor vehicle causing death.[1] He was convicted and sentenced to two years imprisonment. The sentencing judge fixed the parole release date as 6…

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 Ruka

Details

AGLC: R v Ruka [2009] QCA 113
Case: [2009] QCA 113
Decision Date: 5 May 2009

CaseChat Overview and Summary

The applicant, Ruka, appealed against his sentence in the Queensland Court of Appeal. Ruka was convicted on a plea of guilty for dangerous operation of a motor vehicle causing death under section 328A of the Criminal Code 1899 (Qld). He was sentenced to two years imprisonment, with a parole release date after serving six months, and was automatically suspended from holding a driver’s licence for six months. Ruka fell asleep at the wheel, causing his vehicle to drift into the path of an oncoming vehicle, resulting in the death of the other driver. Ruka, aged 37 at the time of the offence, had no criminal history but had some traffic history. The appeal focused on whether the sentencing judge erred in deciding that a fully suspended sentence would be inappropriate and whether the judge erred in finding the case was not one of momentary inattention, as well as whether the sentence was manifestly excessive.

The court examined whether the sentencing judge applied the wrong principle or made an error of law that warranted interference. The court considered the principles governing sentencing for dangerous driving causing death and whether the sentence imposed was manifestly excessive or inadequate. The court noted that the sentencing judge had taken into account the seriousness of the offence, the need for deterrence, and the personal circumstances of the offender. The court concluded that the sentencing judge did not err in finding that a fully suspended sentence would be inappropriate and that the case was not one of momentary inattention. The court also found that the sentence was not manifestly excessive, as it was within the range of sentences that could be imposed for such an offence.

Accordingly, the court dismissed the application for leave to appeal against sentence. The original sentence of two years imprisonment, with parole release after serving six months, and the automatic suspension of Ruka's driver's licence for six months, was upheld. The court determined that the sentencing judge had appropriately balanced the various considerations and that the sentence imposed was neither manifestly excessive nor inadequate.

Orders

Orders of the court

Application for leave to appeal against sentence refused

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.

Citations

AGLC Citation

R v Ruka [2009] QCA 113

Most Recent Citation

R v Maher [2012] QCA 7

Cases citing this decision · 9 of 9 shown

National Heavy Vehicle Regulator v Obst; National Heavy Vehicle Regulator v Turnbull
[2021] SASC 37 Para 23

…is to protect the community against the inherent dangers of driving a heavy vehicle for too long a period and without adequate rest.[2] [2] R v Ruka [2009] QCA 113 at [17] per Wilson J (with whom Muir and Chesterman JJA agreed) ; National Heavy Vehicle Regulator v Mounce [2020] SASC 91, (2020) 92 MVR 212 at [20]…
R v Lightbody
[2019] QCA 61 Para 18

…(Qld) [2002] QCA 501; R v Murphy [2009] QCA 93; R v Hoad (2005) 43 MVR 475; [2005] QCA 92; R v Evans [2005] QCA 455; R v Ruka (2009) 53 MVR 304; [2009] QCA 113; R v Hopper [2011] QCA 296.…
R v Etheridge
[2016] QCA 241 Para 2

…the increase in penalty were reviewed, including R v Ruka ,[48] R v Hopper ,[49] R v Maher ,[50] Nikora , R v Huxtable [51] and R v Osborn .[52] [48][2009] QCA 113. [49][2011] QCA 296. [50][2012] QCA 7. [51][2014] QCA 249. [52][2014] QCA 291.…
R v Stevenson
[2016] QCA 162 Para 18

…t, his age (56), and his good character, the four years was disproportionate to the offence. [10]Referring to R v Damrow [2009] QCA 245; R v Ruka [2009] QCA 113 and R v Allen [2012] QCA 259.…
R v Schoner
[2015] QCA 190 Para 1

…ntion, but one where the defendant failed to respond to increasing signs that he was in danger of becoming unable to control his vehicle.[74] [72][2009] QCA 113. [73] Maher at [36]. [74] Ruka at [9]-[10].…
Miller v Commissioner of Police
[2015] QDC 213 Para 1

…nd I refer, for example, to the cases that are cited in R v Maher [2012] QCA 7. For example, at paragraph 37 there is reference to a decision of Ruka [2009] QCA 113 in which Justice Wilson, with whom Justices Muir and Chesterman agreed, noted that the sentencing Judge appreciated the importance of identifying the…
Kershaw v The State of Western Australia
[2014] WASCA 111 Para 6

…As Wilson J, with whom Muir and Chesterman JJA agreed, observed in R v Ruka [2009] QCA 113 [17], fatigue is widely recognised as a major cause of traffic accidents. It is the responsibility of all drivers, but particularly of a professional truck driver in control of a heavy vehicle, not to endanger the lives and…
Collier v Commissioner of Police
[2012] QDC 87

…In The Queen -v- Carney [2009] QCA 113, the applicant was refused leave to appeal a sentence of 12 months' imprisonment suspended after two months with an operational period of 12 months. That case was involved the deliberate driving of a vehicle at a police officer. Carney also had an extensive criminal history…
R v Maher
[2012] QCA 7 Para 1

…which the increased penalty was applied they would give the most assistance. It is useful to consider those decisions first. [29][2009] QCA 245. [30][2009] QCA 113.…

View all 9 citing cases →

Cases cited in this decision · 10 of 10 shown

R v Murphy
[2009] QCA 93 Para 1

…olve actual custody. That approach was reaffirmed in the recent decision of this Court in R v Murphy. [14] [13](2008) 50 MVR 424; [2008] QCA 199. [14][2009] QCA 93.…
R v Hart
[2008] QCA 199 Para 1

…a sentence will involve actual custody. That approach was reaffirmed in the recent decision of this Court in R v Murphy. [14] [13](2008) 50 MVR 424; [2008] QCA 199. [14][2009] QCA 93.…
R v. Vance ; ex parte A-G (Qld)
[2007] QCA 269 Para 1

…ention. See also the decision of the WA Court of Criminal Appeal in R v Wood [9] and that of the Victorian Court of Appeal in R v Satalich. [10] [8][2007] QCA 269. [9]130 A Crim R 518. [10][2004] VSCA 132.…
R v WR
[2007] QCA 16 Para 1

…al evidence. He submitted that the failure to give such a warning was a breach of the rules of procedural fairness. [5]Appeal Record, p 40; R v W R [2007] QCA 16.…
R v Cottam; Ex Parte
[2004] QCA 351 Para 1

…was not obliged to warn counsel for the applicant that his contention might be rejected. There was no breach of the rules of procedural fairness. [11][2004] QCA 351.…
R v Satalich
[2004] VSCA 132 Para 1

…ourt of Criminal Appeal in R v Wood [9] and that of the Victorian Court of Appeal in R v Satalich. [10] [8][2007] QCA 269. [9]130 A Crim R 518. [10][2004] VSCA 132.…
Wood v The Queen
[2002] WASCA 95

…rte A-G (Qld) (2007) 48 MVR 375; [2007] QCA 269, applied R v WR [2007] QCA 16, cited R v Wood 130 A Crim R 518; [2002] WASCA 95, cited COUNSEL: P E Smith for the applicant M B Lehane for the respondent SOLICITORS: Carne Reidy Herd Lawyers for the applicant Director of Public Prosecutions (Qld) for the respondent…
R v Manahan
[2000] QCA 382 Para 1

…Hart and R v Murphy reflects what de Jersey CJ has described as “the ultimate gravity of causing the death of a fellow human being.”[16] [15][2000] QCA 382, at para 20. [16] R v Vance ; ex parte A-G (Qld) [2007] QCA 269, per de Jersey CJ.…
Jiminez v the Queen
[1992] HCA 14

…whether sentence manifestly excessive Criminal Code 1899 (Qld), s 328A Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14, applied R v Cottam; ex parte A-G (Qld) (2004) 42 MVR 150; [2004] QCA 351, distinguished R v Hart (2008) 50 MVR 424; [2008] QCA 199, considered R v Manahan [2000] QCA 382, considered R v…
R v Pellow
[1997] NSWSC 286

…008] QCA 199, considered R v Manahan [2000] QCA 382, considered R v Murphy [2009] QCA 93, considered R v Pellow [1997] NSWSC 286, applied R v Satalich (2004) 41 MVR 435; [2004] VSCA 132, cited R v Vance; ex parte A-G (Qld) (2007) 48 MVR 375; [2007] QCA 269, applied R v WR [2007] QCA 16, cited R v Wood 130 A Crim R…

Legislation cited in this decision · 3

Crimes Act 1900 (ACT)
52A 1 mention (from Para 1)
Penalties and Sentences Act 1992 (Qld)
9(3) 1 mention (from Para 1)
Transport Operations (Road Use Management) Act 1995 (Qld)
86(3) 1 mention (from Para 1)

CITATION:	R v Ruka [2009] QCA 113
PARTIES:	R v RUKA, Jody Kane (applicant)
FILE NO/S:	CA No 36 of 2009 DC No 396 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	5 May 2009
DELIVERED AT:	Brisbane
HEARING DATE:	24 April 2009
JUDGES:	Muir and Chesterman JJA and Wilson 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 refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL –APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted on plea of guilty of dangerous operation of a motor vehicle causing death under s 328A of the Criminal Code 1899 (Qld) – where applicant sentenced to two years imprisonment with parole release date after serving six months – where applicant automatically suspended from holding a driver’s licence for six months – where applicant fell asleep at wheel – where applicant’s vehicle drifted on to wrong side of road into path of oncoming vehicle – where collision occurred – where driver of oncoming vehicle was killed – where applicant was aged 37 at time of offence – where applicant had no criminal history and some traffic history – whether sentencing judge erred in finding that a fully suspended sentence would be inappropriate – whether sentencing judge erred in finding case not one of momentary inattention – whether sentence manifestly excessive Criminal Code 1899 (Qld), s 328A Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14, applied R v Cottam; ex parte A-G (Qld) (2004) 42 MVR 150; [2004] QCA 351, distinguished R v Hart (2008) 50 MVR 424; [2008] QCA 199, considered R v Manahan [2000] QCA 382, considered R v Murphy [2009] QCA 93, considered R v Pellow [1997] NSWSC 286, applied R v Satalich (2004) 41 MVR 435; [2004] VSCA 132, cited R v Vance; ex parte A-G (Qld) (2007) 48 MVR 375; [2007] QCA 269, applied R v WR[2007] QCA 16, cited R v Wood 130 A Crim R 518; [2002] WASCA 95, cited
COUNSEL:	P E Smith for the applicant M B Lehane for the respondent
SOLICITORS:	Carne Reidy Herd Lawyers for the applicant Director of Public Prosecutions (Qld) for the respondent