R v Smout - [2005] QCA 120

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smout [2005] QCA 120

PARTIES:

R
v
SMOUT, Norman Henry

(applicant)

FILE NO/S:

CA No 31 of 2005

DC No 2447 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING
COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

15 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

19 April 2005

JUDGES:

McPherson and Williams JJA and Philippides J

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

ORDERS:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – where applicant sentenced to 6 years’ imprisonment with a recommendation for post prison community based release after 2½ years for dangerous operation of a motor vehicle causing death whilst adversely affected – where applicant had a blood alcohol concentration exceeding 0.150% – where applicant was cautioned against driving – whether sentence imposed manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(4)(d)

R v Breckenridge [2001] QCA 448; CA No 194 of 2001; 16 October 2001, considered
R v Dingle [2003] QCA 007; CA No 267 of 2002; 31 January 2003, considered
R v Hoad [2005] QCA 92; CA No 434 of 2004; 9 April 2005, considered
R v McKinnon [1999] QCA 075; CA No 372 of 1998; 19 March 1999, considered
R v Smith [2005] QCA 026; CA No 380 of 2004; 14 February 2005, considered

White v R [2003] WASCA 197; CCA No 1 of 2003; 17 April 2003, considered

COUNSEL:

The applicant appeared on his own behalf

M Byrne for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: I would ask Justice Philippides to give the first judgment in this matter.

PHILIPPIDES J: The applicant, Norman Henry Smout, was convicted on 4 February 2005 on his plea to a charge of dangerous operation of a vehicle causing the death of two persons whilst adversely affected by an intoxicating substance, namely alcohol, and the concentration of alcohol in his blood at the time exceeded 150 milligrams of alcohol per 100 millilitres of blood.

For that offence he was sentenced to six years’ imprisonment with a recommendation for post-prison community-based release after two and a half years. The applicant was also disqualified from holding or obtaining a drivers licence for five years. The applicant also pleaded to a summary offence of driving whilst under the influence of alcohol and for that offence a conviction was recorded and no further punishment imposed.

The applicant seeks leave to appeal against that sentence on the basis that it was manifestly excessive. In support of that the applicant raised two matters. Firstly, it was said that the family of the deceased did not blame him for the death of the two deceased and additionally it was said that the applicant's prior criminal history did not involve any term…

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 Smout

Details

AGLC: R v Smout [2005] QCA 120
Case: [2005] QCA 120
Decision Date: 15 April 2005

CaseChat Overview and Summary

The case of R v Smout involved the applicant, who was sentenced to six years in prison with a recommendation for community-based release after serving 2½ years. The sentence was imposed for dangerous driving of a motor vehicle while adversely affected by alcohol, resulting in the death of another person. The applicant had a blood alcohol concentration exceeding 0.150% and had previously been cautioned against driving. The applicant sought leave to appeal against the sentence, arguing that it was manifestly excessive.

The court was required to determine whether the sentence was manifestly excessive. The court considered the relevant statutory provisions and the principles of sentencing. It examined the severity of the offence, the applicant's culpability, and the need for deterrence and rehabilitation. The court also took into account the applicant's prior caution and the high level of intoxication at the time of the offence.

In dismissing the application, the court held that the sentence was not manifestly excessive. It found that the sentence reflected the seriousness of the offence and the need to protect the community from dangerous driving. The court noted that the applicant's prior caution and high level of intoxication were significant aggravating factors. The court was satisfied that the sentence was appropriate and proportionate to the offence.

No further orders were made. The court dismissed the application for leave to appeal against the sentence.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

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 Smout [2005] QCA 120
PARTIES:	R v SMOUT, Norman Henry (applicant)
FILE NO/S:	CA No 31 of 2005 DC No 2447 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	15 April 2005
DELIVERED AT:	Brisbane
HEARING DATE:	19 April 2005
JUDGES:	McPherson and Williams JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDERS:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – where applicant sentenced to 6 years’ imprisonment with a recommendation for post prison community based release after 2½ years for dangerous operation of a motor vehicle causing death whilst adversely affected – where applicant had a blood alcohol concentration exceeding 0.150% – where applicant was cautioned against driving – whether sentence imposed manifestly excessive Penalties and Sentences Act 1992 (Qld), s 9(4)(d) R v Breckenridge [2001] QCA 448; CA No 194 of 2001; 16 October 2001, considered R v Dingle [2003] QCA 007; CA No 267 of 2002; 31 January 2003, considered R v Hoad [2005] QCA 92; CA No 434 of 2004; 9 April 2005, considered R v McKinnon [1999] QCA 075; CA No 372 of 1998; 19 March 1999, considered R v Smith [2005] QCA 026; CA No 380 of 2004; 14 February 2005, considered White v R [2003] WASCA 197; CCA No 1 of 2003; 17 April 2003, considered
COUNSEL:	The applicant appeared on his own behalf M Byrne for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent