R v Smith - [2005] QCA 26

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smith [2005] QCA 26

PARTIES:

R
v
SMITH
(applicant)

FILE NO/S:

CA No 380 of 2004
DC No 297 of 2004
DC No 422 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED EX TEMPORE ON:

14 February 2005

DELIVERED AT:

Brisbane

HEARING DATE:

14 February 2005

JUDGES:

McMurdo P, Mackenzie and Chesterman JJ
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 – JUDGMENT AND PUNISHMENT – SENTENCE – CIRCUMSTANCES OF OFFENDER where applicant convicted of one count of dangerous operation of a vehicle, causing grievous bodily harm, while adversely affected by an intoxicating substance – where applicant also convicted of two summary counts of driving whilst under the influence, unlicensed driving, driving an unregistered vehicle and driving an uninsured vehicle – where applicant sentenced to four and a half years’ imprisonment and disqualified absolutely from holding or applying for a driver’s licence in the future – whether sentence imposed was manifestly excessive

R v Breckenridge [2001] QCA 448; CA No 194 of 2004, 16 October 2001, not followed
R v Haydon [1996] QCA 503; CA No 396 of 1996, 13 November 1996, cited
R v Hine [2002] QCA 212; CA No 31 of 2002, 21 June 2002, not followed
R v Ibrahim [2003] QCA 386; CA No 162 of 2003, 3 September 2003, cited
R v Rowley [1998] QCA 339; CA No 240 of 1998, 26 August 1998, not followed

COUNSEL:

A M Hoare for the applicant
R Martin SC for the respondent

SOLICITORS:

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

THE PRESIDENT: Mr Justice Chesterman will deliver his reasons first.

CHESTERMAN J: On 28 September 2004, the applicant pleaded guilty to an indictment which alleged that on 11 July 2003 at Park Ridge he dangerously operated a motor vehicle on the Mount Lindsay Highway causing grievous bodily harm to Kelly Jane Murray and Sarah Anne Murray. The indictment further alleged that at the time the applicant was adversely affected by alcohol. He was sentenced to a term of imprisonment of four and a half years and disqualified absolutely from holding or obtaining a driver's licence.

The learned Judge who sentenced the applicant also dealt with four simple offences which the applicant admitted he had committed at the same time. They were: driving while under the influence of liquor, driving without a licence, driving an unregistered vehicle and driving one which was also uninsured. No separate penalty was imposed for the simple offences.

Perhaps it should be mentioned that the applicant was driving without a licence, not because it had been cancelled or suspended, but because it had expired and had not been renewed.

The facts reveal a very serious case of dangerous driving. The relevant events occurred at 5.45 p.m. on 11…

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 Smith

Details

AGLC: R v Smith [2005] QCA 26
Case: [2005] QCA 26
Decision Date: 14 February 2005

CaseChat Overview and Summary

The case of R v Smith involved the applicant, Smith, who was convicted on multiple counts of dangerous driving and related offences. Smith had been driving while under the influence of an intoxicating substance, causing grievous bodily harm to another individual. The convictions included dangerous operation of a vehicle causing grievous bodily harm, driving while under the influence of an intoxicating substance, unlicensed driving, driving an unregistered vehicle, and driving an uninsured vehicle. Smith was sentenced to four and a half years' imprisonment and was disqualified absolutely from holding or applying for a driver's licence in the future. Smith applied for leave to appeal against the sentence, arguing that it was manifestly excessive.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive. The court considered the seriousness of the offence, the culpability of the offender, and the need for the sentence to reflect the gravity of the crime while also considering the individual circumstances of Smith. The court had to balance the need for general deterrence and the specific deterrence of Smith from committing similar offences in the future, alongside considerations of rehabilitation.

In assessing the sentence, the court noted the severe consequences of Smith’s actions, particularly the grievous bodily harm caused to another person. The court emphasised the importance of general deterrence in cases involving dangerous driving under the influence. It also considered Smith's previous criminal history and his adverse conditions at the time of the offence. The court concluded that the sentence, while severe, was not manifestly excessive given the circumstances and the need to uphold public safety and deter similar behaviour. The application for leave to appeal against the sentence was accordingly refused.

Orders

Orders of the court

Application for leave to appeal against sentence 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 Smith [2005] QCA 26
PARTIES:	R v SMITH (applicant)
FILE NO/S:	CA No 380 of 2004 DC No 297 of 2004 DC No 422 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED EX TEMPORE ON:	14 February 2005
DELIVERED AT:	Brisbane
HEARING DATE:	14 February 2005
JUDGES:	McMurdo P, Mackenzie and Chesterman JJ 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 – JUDGMENT AND PUNISHMENT – SENTENCE – CIRCUMSTANCES OF OFFENDER where applicant convicted of one count of dangerous operation of a vehicle, causing grievous bodily harm, while adversely affected by an intoxicating substance – where applicant also convicted of two summary counts of driving whilst under the influence, unlicensed driving, driving an unregistered vehicle and driving an uninsured vehicle – where applicant sentenced to four and a half years’ imprisonment and disqualified absolutely from holding or applying for a driver’s licence in the future – whether sentence imposed was manifestly excessive R v Breckenridge [2001] QCA 448; CA No 194 of 2004, 16 October 2001, not followed R v Haydon [1996] QCA 503; CA No 396 of 1996, 13 November 1996, cited R v Hine [2002] QCA 212; CA No 31 of 2002, 21 June 2002, not followed R v Ibrahim [2003] QCA 386; CA No 162 of 2003, 3 September 2003, cited R v Rowley [1998] QCA 339; CA No 240 of 1998, 26 August 1998, not followed
COUNSEL:	A M Hoare for the applicant R Martin SC for the respondent
SOLICITORS:	Callaghan Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent