R v Russo - [1994] QCA 388

IN THE COURT OF APPEAL [1994] QCA 388

SUPREME COURT OF QUEENSLAND

C.A. No. 140 of 1994

Brisbane

[R v. Russo]

T H E Q U E E N

PATRICIA ROSE RUSSO

(Applicant)

Fitzgerald P McPherson JA
Ambrose J

Judgment delivered : 05/10/1994

Reasons for judgment of McPherson JA and Ambrose J; separate dissenting reasons of Fitzgerald P.

APPLICATION FOR LEAVE TO APPEAL DISMISSED.

CATCHWORDS:	CRIMINAL LAW - Sentence - to record a conviction for momentary inattention is not manifestly excessive - Not shown by applicant that the conviction would impede her present work direction.
Counsel:	P. Lafferty for the Appellant

L. Clare for the Respondent

Solicitors:

Spina Kyle Roati for the Appellant

Director of Prosecutions for the Respondent

Hearing Date:

26 August 1994

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 05 /10/94

While I acknowledge the force of the reasons given by Ambrose J. for refusing the application for leave to appeal, I would set aside the recording of the conviction.

This is a tragic case in which the consequences, the deaths of two persons, are totally disproportionate to the applicant's material misbehaviour, momentary inattention. Young people with much more culpable conduct but who are of good character and unlikely to offend again regularly do not have convictions recorded, and the applicant should not be placed in any worse position. While a conviction might not impede the applicant's progress through her chosen profession, it can scarcely be doubted that it might hurt her chances of obtaining employment and would adversely affect her economic and social wellbeing: Penalties and Sentences Act 1992 subsections 12(1) and (2).
Since I cannot identify any reason for doing so, a conviction being unnecessary to punish the applicant, unlikely to be material to deterrence and irrelevant to any future punishment for other offences, I would not jeopardise her prospects by recording a conviction.

The application for leave to appeal should be granted, the appeal allowed and the sentence imposed below varied to remove the order that a conviction be recorded and to substitute an order that a conviction not be recorded. The sentence imposed below should otherwise stand.

JOINT REASONS FOR JUDGMENT OF McPHERSON JA
AND AMBROSE J
Judgment Delivered: 05/10/1994

This is an application for leave to appeal against a sentence passed on the applicant upon her conviction upon a charge that on 4 December 1992 she drove a motor vehicle dangerously, thereby causing two deaths.
The applicant appealed against her conviction and sought leave to appeal against the sentence imposed. However, when the matter was brought on for hearing, the appeal was abandoned and therefore struck out and the applicant then pursued her application for leave to appeal against sentence.
Stated briefly, the applicant was driving a motor vehicle along Heaths Road on the northern outskirts of Mackay, with two friends as passengers, at a speed of between 60 and 80 kilometres per hour, when she failed to slow down or stop at a stop sign at the intersection of…

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 Russo

Details

AGLC: R v Russo [1994] QCA 388
Case: [1994] QCA 388
Decision Date: 5/10/1994

CaseChat Overview and Summary

The case of R v Russo involved the defendant, Russo, and the prosecution, represented by the Crown. Russo was convicted of dangerous driving occasioning grievous bodily harm, and the matter was brought before the court to determine the appropriate sentence. The court had to consider the principles of sentencing in criminal law, specifically in relation to the offence of dangerous driving occasioning grievous bodily harm.

The primary legal issues before the court were whether the sentence imposed by the lower court was manifestly excessive and whether the conviction would impede Russo's ability to continue in her current line of work. The court was required to balance the need for punishment and deterrence with the potential impact of the conviction on the defendant's career. The court also needed to assess whether the sentence reflected the gravity of the offence and the circumstances surrounding it.

In reaching its decision, the court considered the severity of the offence, the degree of danger posed by Russo's actions, and the harm caused to the victim. The court found that the sentence was not manifestly excessive, as it took into account the momentary inattention of the defendant and the mitigating factors present in the case. Furthermore, the court determined that the conviction would not impede Russo's ability to continue in her current work direction, as there was no evidence presented to suggest that her career would be negatively affected by the conviction.

As a result of the court's reasoning and findings, the appeal against the sentence was dismissed. The court upheld the sentence imposed by the lower court, considering it to be appropriate and proportionate to the offence committed by Russo. The court did not find it necessary to impose a new sentence, affirming the original determination made by the lower court.

Orders