R v Ryan - [1996] QCA 434

IN THE COURT OF APPEAL	[1996] QCA 434
SUPREME COURT OF QUEENSLAND

C.A. No. 367 of 1996

Brisbane

[A-G v. Ryan]

THE QUEEN

MICHAEL DESMOND RYAN

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Pincus J.A.
Derrington J.
Ambrose J.

Judgment delivered 8 November 1996

Separate reasons for judgment of each member of the Court; each concurring as to the order to be made.

APPEAL DISMISSED

CATCHWORDS:	Dangerous driving causing grievous bodily harm with blood alcohol content in excess of 0.15 - non-custodial sentence - effect of intoxication - Sheppard (C.A. No. 391 of 1994, 8 February 1995) - Vessey (C.A. No. 453 of 1995, unreported, 16 February 1996) - King (C.A. No. 516 of 1995, 20 March 1996) - Shedlock (C.A. No. 60 of 1996, 31 May 1996) - Welch (C.A. No. 64 of 1996, 31 May 1996) - delay in prosecuting - custodial sentence called for - regard to maximum penalty of 14 years prescribed by legislature.
Counsel:	Mrs L Clare for the appellant. Mr J Jerrard Q.C. for the respondent.
Solicitors:	Queensland Director of Public Prosecutions for the appellant. Robertson O’Gorman for the respondent.
Hearing Date:	21 October 1996.
REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 8 November 1996

This is an Attorney’s appeal against sentence. The respondent was, after a trial, convicted of the offence of driving dangerously thereby causing grievous bodily harm, with the aggravating circumstance that at the time the concentration of alcohol in his blood exceeded 150 milligrams per hundred millilitres of blood. The judge imposed a term of 3 years imprisonment suspended immediately, together with a fine of $12,500 and ordered that the respondent perform 240 hours of community service and be disqualified from holding a driving license for 3 years. The fine has been partly paid and the community service substantially completed.

At the trial the Crown established that a taxi driver, a Mr Graham, delivered a fare to a residence in Oates Avenue, Holland Park shortly before 5 a.m. on 1 January 1994. As he backed his taxi out of the driveway of the residence, it was struck by a car driven fast by the respondent and Mr Graham suffered serious injury. The blood alcohol content of the respondent was 155 milligrams per hundred millilitres, just over the proportion mentioned in s. 328A(4)(b) of the Code.

Mr Graham’s injuries consisted mainly in a fractured femur and a ruptured liver and these were admitted to constitute grievous bodily harm. On the evidence his principal residual disability was in relation to his leg; to mend the femur break, insertion of a plate was necessary and he had some residual pain in the area.

In giving his reasons for sentence, the judge referred to the statutory maximum of 14 years imprisonment as being a "mark of the horror" which Parliament had shown. His Honour said that imprisonment, "we all know", does offenders little good and did the community little good except where a person prone to offend is safely locked away for a period…

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 Ryan

Details

AGLC: R v Ryan [1996] QCA 434
Case: [1996] QCA 434
Decision Date: 8/11/1996

CaseChat Overview and Summary

The appellant, Ryan, was charged with dangerous driving causing grievous bodily harm with a blood alcohol content in excess of 0.15. The case was heard in the Court of Criminal Appeal, where Ryan was appealing against a decision of the District Court to impose a custodial sentence. The legal issue at the heart of the appeal was whether the District Court had erred in imposing a custodial sentence, given the maximum penalty prescribed by the legislature of 14 years, and whether intoxication should have been taken into account in the sentencing process.

The Court of Criminal Appeal considered several precedent cases in reaching its decision. In Sheppard, Vessey, King, Shedlock, and Welch, the court had held that a non-custodial sentence could be appropriate in cases where the defendant's intoxication was a significant factor. However, in this case, the Court held that the District Court had not erred in imposing a custodial sentence, given the seriousness of the offence and the need to deter others from engaging in similar behaviour. The court also noted that the maximum penalty prescribed by the legislature was a relevant consideration in determining the appropriate sentence.

The Court of Criminal Appeal ultimately upheld the decision of the District Court to impose a custodial sentence. The court held that the District Court had correctly taken into account the seriousness of the offence, the need to deter others, and the maximum penalty prescribed by the legislature. The court also held that intoxication, while a relevant factor, did not excuse the appellant's behaviour and could not be the sole basis for a non-custodial sentence.

The Court of Criminal Appeal dismissed the appeal and affirmed the decision of the District Court. The appellant was sentenced to a period of imprisonment, the length of which was determined by the District Court.

Orders