R v Saltmarsh - [2007] QCA 25

SUPREME COURT OF QUEENSLAND

CITATION:

R v Saltmarsh [2007] QCA 25

PARTIES:

R
v
SALTMARSH, Tammy Cherie

(applicant)

FILE NO/S:

CA No 267 of 2006
DC No 835 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

6 February 2007

DELIVERED AT:

Brisbane

HEARING DATE:

6 February 2007

JUDGES:

de Jersey CJ, Williams JA, Keane JA

Separate reasons for judgement of each member of the Court, each concurring as to the order made

ORDER:

The application is refused

CATCHWORDS:

CRIMINAL LAW – DRIVING OFFENCES – CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM – where applicant grossly intoxicated – where applicant collided with a pedestrian and failed to stop – where applicant had no prior criminal history but had traffic history – where general deterrence should be secured – whether sentence imposed was manifestly excessive

R v Hoad [2005] QCA 92; CA No 434 of 2004, 8 April 2005 distinguished
R v Hook [2006] QCA 458; Appeal No 220 of 2006, 10 November 2006, distinguished
R v Smith[2005] QCA 26; CA No 380 of 2004, 14 February 2005, followed

COUNSEL:

M J Byrne QC for the applicant
D L Meredith for the respondent

SOLICITORS:

Callaghan Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE: The applicant pleaded guilty to the dangerous operation of a motor vehicle causing grievous bodily harm while adversely affected by alcohol.

She was sentenced to four years, nine months imprisonment, suspended after 21 months for an operational period of five years. A seven year licence disqualification was imposed.
She seeks leave to appeal against the sentence on the ground that it is manifestly excessive.

The offence occurred in the afternoon of 8th August, 2005 at Redcliffe. The applicant, then 32 years of age, was driving her Honda Accord motor vehicle in a northerly direction on Prince Edward Parade at about 3.15 p.m. She was driving in a built up area, intending to pick up her children from school. Witnesses saw her driving erratically with the vehicle drifting within the lane. She was not, however, speeding.

The complainant, Mr Smith, a 78 year old man was out walking with his grandson at about 3.30 p.m. The grandson's attention to the applicant's vehicle was attracted by the screeching of its tyres. He observed the vehicle mount the footpath and head towards his grandfather and him. The vehicle collided with a fence then bounced back on to the road surface and then struck the complainant from behind.

Mr Smith was thrown into the air then rolled back onto the bonnet and windscreen of the car, fracturing the windscreen, and then he fell onto the road surface. He suffered an unstable fracture of the second cervical vertebra, a subarachnoid haemorrhage and a fractured proximal right fibula. If left untreated the first of those injuries would have endangered his life and would likely have caused permanent injury in the form…

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 Saltmarsh

Details

AGLC: R v Saltmarsh [2007] QCA 25
Case: [2007] QCA 25
Decision Date: 6 February 2007

CaseChat Overview and Summary

The case of R v Saltmarsh involved the applicant, who was charged with culpable or dangerous driving causing death or bodily harm after a collision with a pedestrian while grossly intoxicated. The applicant failed to stop after the incident and had no prior criminal history, although they did have a traffic history. The matter was heard in the relevant court, which was required to decide whether the sentence imposed on the applicant was manifestly excessive.

The primary legal issue before the court was whether the sentence imposed on the applicant was manifestly excessive. The court considered the nature of the offence, the applicant's intoxication at the time of the incident, their failure to stop after the collision, and their lack of prior criminal history. The court also took into account the need for general deterrence in cases of this nature.

After considering the relevant factors, the court found that the sentence imposed on the applicant was not manifestly excessive. The court acknowledged the seriousness of the offence and the need for general deterrence, but also recognised the applicant's lack of prior criminal history and their intoxication at the time of the incident. The court concluded that the sentence imposed was appropriate and did not constitute an error of law.

As a result, the application was refused. The court upheld the sentence imposed on the applicant, finding that it was not manifestly excessive and did not constitute an error of law. The court's decision in this case serves as a reminder of the importance of general deterrence in cases involving dangerous driving and the need to balance this with other relevant factors when determining an appropriate sentence.

Orders

Orders of the court

The application is refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Saltmarsh [2007] QCA 25
PARTIES:	R v SALTMARSH, Tammy Cherie (applicant)
FILE NO/S:	CA No 267 of 2006 DC No 835 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	6 February 2007
DELIVERED AT:	Brisbane
HEARING DATE:	6 February 2007
JUDGES:	de Jersey CJ, Williams JA, Keane JA Separate reasons for judgement of each member of the Court, each concurring as to the order made
ORDER:	The application is refused
CATCHWORDS:	CRIMINAL LAW – DRIVING OFFENCES – CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM – where applicant grossly intoxicated – where applicant collided with a pedestrian and failed to stop – where applicant had no prior criminal history but had traffic history – where general deterrence should be secured – whether sentence imposed was manifestly excessive R v Hoad [2005] QCA 92; CA No 434 of 2004, 8 April 2005 distinguished R v Hook [2006] QCA 458; Appeal No 220 of 2006, 10 November 2006, distinguished R v Smith[2005] QCA 26; CA No 380 of 2004, 14 February 2005, followed
COUNSEL:	M J Byrne QC for the applicant D L Meredith for the respondent
SOLICITORS:	Callaghan Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent