R v Stevenson - [2016] QCA 162

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stevenson [2016] QCA 162

PARTIES:

R
v
STEVENSON, Philip Conley
(applicant)

FILE NO/S:

CA No 285 of 2015
DC No 96 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville – Date of Sentence: 29 October 2015

DELIVERED ON:

17 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

30 May 2016

JUDGES:

Morrison and Philippides JJA and Henry J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:
1.   The appeal against conviction is dismissed.

2.   The application for leave to appeal against sentence is granted.

3.   The appeal against sentence is allowed.

4.   Set aside that part of the sentence imposed on 29 October 2015, which ordered that the appellant be disqualified from holding or obtaining a driver’s licence for a period of four years.

5.   In lieu thereof, order that the appellant be disqualified from holding or obtaining a driver’s licence for a period of two years from 29 October 2015.

6.   Order that the portion of the disqualification that had not expired when the appeal against conviction was lodged on 26 November 2015, shall take effect from 27 November 2015.

7.   Otherwise the sentence imposed on 29 October 2015 is confirmed.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted, after a trial, of dangerous operation of a motor vehicle causing grievous bodily harm – where the applicant was sentenced to imprisonment for 18 months, suspended after serving nine months, for an operational period of three years – where the applicant was also disqualified from holding or obtaining a divers’ licence for four years – where the applicant seeks to appeal against the part of his sentence that imposes the licence disqualification on the ground that it is manifestly excessive – where the applicant was driving his prime mover and semi-trailer towards an intersection – where the applicant ran a red light and collided with a car which, in turn, collided with a second car – where the complainant, the occupant of the second car sustained serious injuries, which amounted to grievous bodily harm by the applicant – where the applicant repeatedly blamed the driver of the first vehicle he collided with – where the applicant’s main source of income is as a driver – where the applicant has a family to support – whether the sentence relating to the disqualification of the drivers’ licence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 187
Transport Operations (Road Use Management) Act 1995 (Qld), s 131(2), s 131(2AA), s 131(2C), s 131(3A), s 131(3B), s 187

R v Allen[2012] QCA 259, cited
R v Damrow[2009] QCA 245, cited
R v MacDonald (2014) 244 A Crim R 148; [2014] QCA 9, considered
R v Nhu Ly [1996] 1 Qd R 543; [1995] 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 Stevenson

Details

AGLC: R v Stevenson [2016] QCA 162
Case: [2016] QCA 162
Decision Date: 17 June 2016

CaseChat Overview and Summary

The applicant in this case, Mr Stevenson, sought to appeal against the sentence imposed upon him for dangerous operation of a motor vehicle causing grievous bodily harm. The primary issue before the court was whether the disqualification from holding or obtaining a driver's licence, which was part of the sentence, was manifestly excessive. Mr Stevenson argued that the four-year disqualification was excessive given his reliance on driving for income and the need to support his family.

The court considered the nature of the offence, Mr Stevenson's culpability, and the impact of the sentence on his ability to earn a living. The court also noted that the disqualification would have continued to run even if Mr Stevenson had not appealed against his conviction and was serving his sentence in jail. The court concluded that the original four-year disqualification was manifestly excessive and substituted it with a two-year disqualification, starting from the date of the original sentence.

The appeal against the conviction was dismissed, but the appeal against the sentence was allowed. The court ordered that Mr Stevenson be disqualified from holding or obtaining a driver's licence for two years from 29 October 2015, with the portion of the disqualification that had not expired when the appeal against conviction was lodged to take effect from 27 November 2015. The remainder of the original sentence was confirmed. The judges agreed with the proposed orders.

Orders

Orders of the court

1. The appeal against conviction is dismissed.

2. The application for leave to appeal against sentence is granted.

3. The appeal against sentence is allowed.

4. Set aside that part of the sentence imposed on 29 October 2015, which ordered that the appellant be disqualified from holding or obtaining a driver’s licence for a period of four years.

5. In lieu thereof, order that the appellant be disqualified from holding or obtaining a driver’s licence for a period of two years from 29 October 2015.

6. Order that the portion of the disqualification that had not expired when the appeal against conviction was lodged on 26 November 2015, shall take effect from 27 November 2015.

7. Otherwise the sentence imposed on 29 October 2015 is confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The application of s 131(3B) would mean that Mr Stevenson’s disqualification would be extended by the (nearly) seven months between 26 November 2015 and now, unless another order is made. In my view, it would be appropriate to make such an order, as the appeal against conviction has been abandoned, and in the interim Mr Stevenson has remained in jail without any chance to drive. Had the appeal against conviction not been lodged, then the time of disqualification would have continued running, notwithstanding that Mr Stevenson was in jail and unable to drive. I see no good reason why the time when he can resume his employment should be extended further than necessary.Conclusion For the reasons expressed above I would grant leave to appeal, allow the appeal and substitute a period of disqualification, from holding or obtaining a driver’s licence, of two years from 29 October 2015. I would also order that the portion of the disqualification that had not expired when the appeal against conviction was lodged on 26 November 2015, shall take effect from 27 November 2015. I propose the following orders:1. The appeal against conviction is dismissed.2. The application for leave to appeal against sentence is granted.3. The appeal against sentence is allowed.4. Set aside that part of the sentence imposed on 29 October 2015, which ordered that the appellant be disqualified from holding or obtaining a driver’s licence for a period of four years.5. In lieu thereof, order that the appellant be disqualified from holding or obtaining a driver’s licence for a period of two years from 29 October 2015.6. Order that the portion of the disqualification that had not expired when the appeal against conviction was lodged on 26 November 2015, shall take effect from 27 November 2015.7. Otherwise the sentence imposed on 29 October 2015 is confirmed. PHILIPPIDES JA: For the reasons given by Morrison JA, I agree with the orders proposed by his Honour. HENRY J: I have read the reasons of Morrison JA. I agree with those reasons and the orders proposed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Stevenson [2016] QCA 162
PARTIES:	R v STEVENSON, Philip Conley (applicant)
FILE NO/S:	CA No 285 of 2015 DC No 96 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville – Date of Sentence: 29 October 2015
DELIVERED ON:	17 June 2016
DELIVERED AT:	Brisbane
HEARING DATE:	30 May 2016
JUDGES:	Morrison and Philippides JJA and Henry J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal against conviction is dismissed. 2. The application for leave to appeal against sentence is granted. 3. The appeal against sentence is allowed. 4. Set aside that part of the sentence imposed on 29 October 2015, which ordered that the appellant be disqualified from holding or obtaining a driver’s licence for a period of four years. 5. In lieu thereof, order that the appellant be disqualified from holding or obtaining a driver’s licence for a period of two years from 29 October 2015. 6. Order that the portion of the disqualification that had not expired when the appeal against conviction was lodged on 26 November 2015, shall take effect from 27 November 2015. 7. Otherwise the sentence imposed on 29 October 2015 is confirmed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted, after a trial, of dangerous operation of a motor vehicle causing grievous bodily harm – where the applicant was sentenced to imprisonment for 18 months, suspended after serving nine months, for an operational period of three years – where the applicant was also disqualified from holding or obtaining a divers’ licence for four years – where the applicant seeks to appeal against the part of his sentence that imposes the licence disqualification on the ground that it is manifestly excessive – where the applicant was driving his prime mover and semi-trailer towards an intersection – where the applicant ran a red light and collided with a car which, in turn, collided with a second car – where the complainant, the occupant of the second car sustained serious injuries, which amounted to grievous bodily harm by the applicant – where the applicant repeatedly blamed the driver of the first vehicle he collided with – where the applicant’s main source of income is as a driver – where the applicant has a family to support – whether the sentence relating to the disqualification of the drivers’ licence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 187 Transport Operations (Road Use Management) Act 1995 (Qld), s 131(2), s 131(2AA), s 131(2C), s 131(3A), s 131(3B), s 187 R v Allen[2012] QCA 259, cited R v Damrow[2009] QCA 245, cited R v MacDonald (2014) 244 A Crim R 148; [2014] QCA 9, considered R v Nhu Ly [1996] 1 Qd R 543; [1995] QCA…