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R v Schoner

R v Schoner

Case [2015] QCA 190 9 October 2015

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Schoner [2015] QCA 190

PARTIES:

R
v
SCHONER, Bronya
(applicant)

FILE NO/S:

CA No 135 of 2015
DC No 31 of 2014
DC No 10 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Warwick – Unreported, 19 February 2015

DELIVERED ON:

9 October 2015

DELIVERED AT:

Brisbane

HEARING DATE:

2 October 2015

JUDGES:

Gotterson JA and Philip McMurdo and Peter Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Grant the applicant’s application for an extension of time within which to apply for leave to appeal against sentence.

2.   Treat the hearing as the hearing of the application for leave to appeal against sentence, and the appeal.

3.   Grant the application for leave to appeal.

4.   Allow the appeal against sentence.

5.   For the term of five years’ imprisonment, suspended after two years, with an operational period of five years, for the offence of dangerous operation of a motor vehicle causing death and grievous bodily harm, substitute a sentence of four years’ imprisonment, suspended forthwith, with an operational period of four years.

6.   Otherwise not vary the sentences imposed at first instance.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to, amongst other things, dangerous operation of a motor vehicle causing death and grievous bodily harm – where, as a result of the collision, one person died, another was seriously injured, and a third was injured – where, prior to the collision, the applicant had driven about 1,600 kilometres in a little less than 18 hours with some breaks – where, in the course of giving the applicant a speeding ticket about an hour and a quarter before the collision, a police officer noted that the applicant was tired – where the sentencing judge was not prepared to sentence the applicant on the basis that she was then in such a state of fatigue that she ought to have known that she should stop driving – where, at the time of the collision, the applicant was disqualified from driving – where, for the dangerous operation of a vehicle offence, the applicant was sentenced to five years’ imprisonment, suspended after two years – where the applicant applied for an extension of time within which to appeal against her sentence – whether a demonstrable miscarriage of justice could be perpetuated by the refusal of the extension – whether the sentence was manifestly excessive

R v Blanch[2008] QCA 253, discussed
R v CBI[2013] QCA 186, cited
R v Evans[2005] QCA 455, discussed
R v Gallaher[2004] QCA 240, discussed
R v Gruenert; Ex parte Attorney-General (Qld)[2005] QCA 154, cited
R v Harris; Ex parte Attorney-General of Queensland[1999] QCA 392, discussed
R v Hart[2008] QCA…

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 Schoner

Details

AGLC: R v Schoner [2015] QCA 190
Case: [2015] QCA 190
Decision Date: 9 October 2015

CaseChat Overview and Summary

The case of R v Schoner involves the applicant who pleaded guilty to dangerous operation of a motor vehicle causing death and grievous bodily harm, among other charges. The collision resulted in the death of one person, serious injury to another, and injury to a third party. The applicant had driven approximately 1,600 kilometres over 18 hours with breaks, and a police officer had noted her fatigue an hour and a quarter before the incident. The sentencing judge declined to consider the applicant's fatigue as a mitigating factor, believing she should have known to stop driving. The applicant was also disqualified from driving at the time of the collision. For the dangerous operation charge, she was sentenced to five years' imprisonment, suspended after two years. The applicant sought an extension of time to appeal against her sentence, arguing that the refusal of the extension could result in a demonstrable miscarriage of justice and that the sentence was manifestly excessive.

The court was required to determine whether a demonstrable miscarriage of justice could result from the refusal of the extension, and whether the sentence imposed was manifestly excessive. The court considered the circumstances leading to the collision, the fatigue experienced by the applicant, and the impact of the sentence on her. The court also examined whether the sentence was appropriate given the gravity of the offence and the circumstances of the applicant.

The court granted the applicant’s application for an extension of time within which to appeal against her sentence. The court treated the hearing as the hearing of the application for leave to appeal against sentence, and the appeal. The court granted the application for leave to appeal and allowed the appeal against sentence. The original sentence of five years’ imprisonment, suspended after two years, was substituted with a sentence of four years’ imprisonment, suspended forthwith, with an operational period of four years. The court did not vary the other sentences imposed at first instance.

The court’s orders included granting the applicant’s application for an extension of time to appeal against her sentence, treating the hearing as the hearing of the application for leave to appeal against sentence and the appeal, granting the application for leave to appeal, allowing the appeal against sentence, and substituting the original sentence with a sentence of four years’ imprisonment, suspended forthwith, with an operational period of four years. The court did not vary the other sentences imposed at first instance.

Orders

Orders of the court

1. Grant the applicant’s application for an extension of time within which to apply for leave to appeal against sentence.

2. Treat the hearing as the hearing of the application for leave to appeal against sentence, and the appeal.

3. Grant the application for leave to appeal.

4. Allow the appeal against sentence.

5. For the term of five years’ imprisonment, suspended after two years, with an operational period of five years, for the offence of dangerous operation of a motor vehicle causing death and grievous bodily harm, substitute a sentence of four years’ imprisonment, suspended forthwith, with an operational period of four years.

6. Otherwise not vary the sentences imposed at first instance.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

R v Schoner [2015] QCA 190

Most Recent Citation

R v Etheridge [2016] QCA 241

Cases Citing This Decision

R v Muirhead; R v Muirhead; Ex parte [2019] QCA 244
Citation 1 (Para 33)

…v Osborne ,[5] R v Schoner [6] and R v Browning .[7] [1][2008] QCA 199. [2][2012] QCA 7. [3][2012] QCA 259. [4][2014] QCA 249. [5][2014] QCA 291. [6][2015] QCA 190. [7][2018] QCA 337.…
R v Lightbody [2019] QCA 61
Citation 2 (Para 1)

…h was decided after the amendments to the Code. [60](2014) 68 MVR 367; [2014] QCA 249. [61](2014) 69 MVR 45; [2014] QCA 291. [62](2015) 73 MVR 107; [2015] QCA 190.…
R v Etheridge [2016] QCA 241
Citation 3 (Para 31)

…harm. The offender was 37 years old at the offence, and 38 at sentence. She was sentenced to five years imprisonment, suspended after two years. [40][2015] QCA 190.…

See all citing cases →

Cases Cited

R v Osborne [2014] QCA 291
Citation 1 (Para 1)

…lso R v Hart [2008] QCA 199 at [17]; R v Gruenert; ex parte A-G (Qld) [2005] QCA 154 at [15]; R v MacDonald [2014] QCA 9 at[8], [70]; R v Osborne [2014] QCA 291 at [37]. [36][2000] QCA 382 at [20]. [37][2009] QCA 93 at [20].…
R v Murray [2014] QCA 250
Citation 2 (Para 1)

…o some of the earlier cases. [38] Criminal Code and Civil Liability Amendment Act 2007 (Qld) s 4. [39] R v CBI [2013] QCA 186 at [19]; R v Murray [2014] QCA 250 at [16]; in each case per Fraser JA.…
R v Huxtable [2014] QCA 249
Citation 3 (Para 1)

…s sentenced to a term of imprisonment of three and a half years, suspended after 14 months, with an operational period of three and a half years. [83][2014] QCA 249.…
R v Nikora [2014] QCA 192
Citation 4 (Para 1)

…re imposed.[21] [14]T1-30. [15]T1-31. [16]T1-32. [17][2011] QCA 113. [18][2012] QCA 7. [19]T1-36. [20][2008] QCA 253 at [22]; cited in R v Nikora [2014] QCA 192. [21]T1-37.…
R v MacDonald [2014] QCA 9
Citation 5 (Para 1)

…9] QCA 392. [35] Harris at [42]; See also R v Hart [2008] QCA 199 at [17]; R v Gruenert; ex parte A-G (Qld) [2005] QCA 154 at [15]; R v MacDonald [2014] QCA 9 at[8], [70]; R v Osborne [2014] QCA 291 at [37]. [36][2000] QCA 382 at [20]. [37][2009] QCA 93 at [20].…
R v CBI [2013] QCA 186
Citation 6 (Para 1)

…] Nevertheless I propose to refer to some of the earlier cases. [38] Criminal Code and Civil Liability Amendment Act 2007 (Qld) s 4. [39] R v CBI [2013] QCA 186 at [19]; R v Murray [2014] QCA 250 at [16]; in each case per Fraser JA.…
R v Maher [2012] QCA 7
Citation 7 (Para 1)

…s to deter precisely this category of offender that condign punishments are imposed.[21] [14]T1-30. [15]T1-31. [16]T1-32. [17][2011] QCA 113. [18][2012] QCA 7. [19]T1-36. [20][2008] QCA 253 at [22]; cited in R v Nikora [2014] QCA 192. [21]T1-37.…
R v Hopper [2011] QCA 296
Citation 8 (Para 1)

…ing control of his vehicle, resulting in a collision in which a passenger died. This case is of no assistance on the present application. [75][2011] QCA 296.…
R v Nl [2011] QCA 113
Citation 9 (Para 1)

…s young; rather it is to deter precisely this category of offender that condign punishments are imposed.[21] [14]T1-30. [15]T1-31. [16]T1-32. [17][2011] QCA 113. [18][2012] QCA 7. [19]T1-36. [20][2008] QCA 253 at [22]; cited in R v Nikora [2014] QCA 192. [21]T1-37.…
R v Ruka [2009] QCA 113
Citation 10 (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].…
R v Murphy [2009] QCA 93
Citation 11 (Para 1)

…rte A-G (Qld) [2005] QCA 154 at [15]; R v MacDonald [2014] QCA 9 at[8], [70]; R v Osborne [2014] QCA 291 at [37]. [36][2000] QCA 382 at [20]. [37][2009] QCA 93 at [20].…
R v Blanch [2008] QCA 253
Citation 12 (Para 1)

…egory of offender that condign punishments are imposed.[21] [14]T1-30. [15]T1-31. [16]T1-32. [17][2011] QCA 113. [18][2012] QCA 7. [19]T1-36. [20][2008] QCA 253 at [22]; cited in R v Nikora [2014] QCA 192. [21]T1-37.…
R v Hart [2008] QCA 199
Citation 13 (Para 1)

…are typically unforeseen, and both unintended and outside the control of the offender. [34][1999] QCA 392. [35] Harris at [42]; See also R v Hart [2008] QCA 199 at [17]; R v Gruenert; ex parte A-G (Qld) [2005] QCA 154 at [15]; R v MacDonald [2014] QCA 9 at[8], [70]; R v Osborne [2014] QCA 291 at [37]. [36][2000]…
R v. Vance ; ex parte A-G (Qld) [2007] QCA 269
Citation 14 (Para 1)

…r six months for an operational period of two years, having pleaded guilty to a charge of dangerous operation of a motor vehicle causing death. [65][2007] QCA 269. [66] Maher at [38]. [67] Murphy at [23].…
R v Sheedy; ex parte A-G (Qld) [2007] QCA 183
Citation 15 (Para 1)

…cutor referred to R v Sheedy; Ex parte Attorney-General (Qld) [5]; R v Hoad [6]; R v Wilde; Ex parte Attorney-General (Qld) [7] and R v Evans .[8] [5][2007] QCA 183. [6][2005] QCA 92. [7][2002] QCA 501. [8][2005] QCA 455.…
R v Evans [2005] QCA 455
Citation 16 (Para 1)

…(Qld) [5]; R v Hoad [6]; R v Wilde; Ex parte Attorney-General (Qld) [7] and R v Evans .[8] [5][2007] QCA 183. [6][2005] QCA 92. [7][2002] QCA 501. [8][2005] QCA 455.…
R v Gruenert; ex parte A-G (Qld) [2005] QCA 154
Citation 17 (Para 1)

…the control of the offender. [34][1999] QCA 392. [35] Harris at [42]; See also R v Hart [2008] QCA 199 at [17]; R v Gruenert; ex parte A-G (Qld) [2005] QCA 154 at [15]; R v MacDonald [2014] QCA 9 at[8], [70]; R v Osborne [2014] QCA 291 at [37]. [36][2000] QCA 382 at [20]. [37][2009] QCA 93 at [20].…
R v Hoad [2005] QCA 92
Citation 18 (Para 1)

…v Sheedy; Ex parte Attorney-General (Qld) [5]; R v Hoad [6]; R v Wilde; Ex parte Attorney-General (Qld) [7] and R v Evans .[8] [5][2007] QCA 183. [6][2005] QCA 92. [7][2002] QCA 501. [8][2005] QCA 455.…
R v Gallaher [2004] QCA 240
Citation 19 (Para 1)

…, who had been driving the on-coming vehicle. The sentence of three and a half years was held not to be manifestly excessive. [44][2004] QCA 240. [45][2009] QCA 93 at [25]. [46] Gallaher at [2]. [47] Gallaher at [4]. [48] Gallaher at [8].…
R v Wilde; ex parte A-G (Qld) [2002] QCA 501
Citation 20 (Para 1)

…e Attorney-General (Qld) [5]; R v Hoad [6]; R v Wilde; Ex parte Attorney-General (Qld) [7] and R v Evans .[8] [5][2007] QCA 183. [6][2005] QCA 92. [7][2002] QCA 501. [8][2005] QCA 455.…
R v Manahan [2000] QCA 382
Citation 21 (Para 1)

…at [17]; R v Gruenert; ex parte A-G (Qld) [2005] QCA 154 at [15]; R v MacDonald [2014] QCA 9 at[8], [70]; R v Osborne [2014] QCA 291 at [37]. [36][2000] QCA 382 at [20]. [37][2009] QCA 93 at [20].…
R v Harris; ex parte A-G (Qld) [1999] QCA 392
Citation 22 (Para 1)

…the appropriate punishment, notwithstanding that they are typically unforeseen, and both unintended and outside the control of the offender. [34][1999] QCA 392. [35] Harris at [42]; See also R v Hart [2008] QCA 199 at [17]; R v Gruenert; ex parte A-G (Qld) [2005] QCA 154 at [15]; R v MacDonald [2014] QCA 9 at[8]…
R v Nhu Ly [1995] QCA 139
Citation 23

…A 382, cited R v Murphy [2009] QCA 93, discussed R v Murray [2014] QCA 250, cited R v Nhu Ly [1996] 1 Qd R 543; [1995] QCA 139, cited R v Nikora [2014] QCA 192, discussed R v Osborne [2014] QCA 291, cited R v Ruka [2009] QCA 113, discussed R v Sheedy; Ex parte Attorney-General (Qld) [2007] QCA 183, discussed R v…

Legislation Cited

Criminal Code and Civil Liability Amendment Act 2007 (Qld) 4
1 mention (from Para 1)

CITATION:	R v Schoner [2015] QCA 190
PARTIES:	R v SCHONER, Bronya (applicant)
FILE NO/S:	CA No 135 of 2015 DC No 31 of 2014 DC No 10 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Warwick – Unreported, 19 February 2015
DELIVERED ON:	9 October 2015
DELIVERED AT:	Brisbane
HEARING DATE:	2 October 2015
JUDGES:	Gotterson JA and Philip McMurdo and Peter Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant the applicant’s application for an extension of time within which to apply for leave to appeal against sentence. 2. Treat the hearing as the hearing of the application for leave to appeal against sentence, and the appeal. 3. Grant the application for leave to appeal. 4. Allow the appeal against sentence. 5. For the term of five years’ imprisonment, suspended after two years, with an operational period of five years, for the offence of dangerous operation of a motor vehicle causing death and grievous bodily harm, substitute a sentence of four years’ imprisonment, suspended forthwith, with an operational period of four years. 6. Otherwise not vary the sentences imposed at first instance.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to, amongst other things, dangerous operation of a motor vehicle causing death and grievous bodily harm – where, as a result of the collision, one person died, another was seriously injured, and a third was injured – where, prior to the collision, the applicant had driven about 1,600 kilometres in a little less than 18 hours with some breaks – where, in the course of giving the applicant a speeding ticket about an hour and a quarter before the collision, a police officer noted that the applicant was tired – where the sentencing judge was not prepared to sentence the applicant on the basis that she was then in such a state of fatigue that she ought to have known that she should stop driving – where, at the time of the collision, the applicant was disqualified from driving – where, for the dangerous operation of a vehicle offence, the applicant was sentenced to five years’ imprisonment, suspended after two years – where the applicant applied for an extension of time within which to appeal against her sentence – whether a demonstrable miscarriage of justice could be perpetuated by the refusal of the extension – whether the sentence was manifestly excessive R v Blanch[2008] QCA 253, discussed R v CBI[2013] QCA 186, cited R v Evans[2005] QCA 455, discussed R v Gallaher[2004] QCA 240, discussed R v Gruenert; Ex parte Attorney-General (Qld)[2005] QCA 154, cited R v Harris; Ex parte Attorney-General of Queensland[1999] QCA 392, discussed R v Hart[2008] QCA…