R v T - [1998] QCA 456

[1998] QCA 456

COURT OF APPEAL

McMURDO P
McPHERSON JA
SHEPHERDSON J

CA No 253 of 1998

THE QUEEN

T Applicant/Appellant

BRISBANE

DATE 18/09/98

JUDGMENT

McPHERSON JA: The applicant for leave to appeal against sentence was convicted on her own pleas of guilty in the District Court at Mt Isa of one count of stealing, one of receiving, two of unlawful use of a motor vehicle, a count of wilful damage and one of dangerous driving causing grievous bodily harm. There were two indictments.

In respect of the unlawful use of a motor vehicle, or one of those counts, and the count of dangerous driving causing grievous bodily harm, she was sentenced to detention for 12 months with an immediate release order. For the other offences she was required to undergo a period of two years probation.

The application before us is directed not to the latter sentence but to the order made by the learned sentencing judge that a conviction be recorded in respect of the dangerous driving causing grievous bodily harm and the associated unlawful use of a motor vehicle offence. The major offence is undoubtedly that of driving causing grievous bodily harm.

The circumstances are that on 24 December 1997 the applicant and another girl, whose name seems to have been Anita, stole a car belonging to a government department and drove it into the streets of Mt Isa. The police saw it being driven and, knowing it was stolen, gave chase. Speeds of 140 km/h were attained in the course of the pursuit and the applicant drove through red lights and on one occasion across a median strip.

Eventually, while speeding along the Barclay Highway she went onto her incorrect side of the road causing an oncoming car to swerve and run into a pole or obstruction at the side of the road. The occupants of that vehicle were a young mother, a Mrs Major, and her daughter Jasmine. Mrs Major sustained a spinal injury which, by medical treatment and great good fortune, in the end left no permanent disability, but might without such treatment easily have turned her into a paraplegic.

Luckily also, Mrs Major pregnancy at that time was not affected by the injury or the experience. Her daughter, who was some three years or so old, sustained minor lacerations to the scalp and chest and also, more seriously, a laceration four to six centimetres long to her liver. She recovered, it is said, remarkably well from her injuries but, again, without the medical treatment she would have died.

It was these injuries to the two victims that constituted the grievous bodily harm charged against the applicant. The applicant was only 14 years old at the time of these offences. She comes from a disturbed family background, her mother having left her father when the applicant was quite young. She had some minor previous convictions of no particular consequence but was undergoing probation when the subject offences were committed.

What is perhaps more…

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.

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Details

AGLC: R v T [1998] QCA 456
Case: [1998] QCA 456
Decision Date: 18/09/1998

CaseChat Overview and Summary

The case of R v T is an appeal against the sentence imposed by the District Court at Mt Isa. The applicant, who was convicted on multiple counts including stealing, receiving, unlawful use of a motor vehicle, wilful damage, and dangerous driving causing grievous bodily harm, sought leave to appeal the decision to record a conviction for the dangerous driving causing grievous bodily harm and the associated unlawful use of a motor vehicle offence. The applicant, who was 14 years old at the time of the offences, had a troubled family background and was undergoing probation for minor previous convictions when these offences were committed.

The primary legal issue in this case was whether the discretion to record a conviction was exercised properly by the sentencing judge. The Court of Appeal examined the statutory provisions and the sentencing judge's reasons to determine if there was a miscarriage of discretion. The applicant argued that the sentencing judge did not afford her counsel a full opportunity to address the issue of recording a conviction and did not consider the possibility that the offence was a result of panic induced by the police pursuit.

The Court of Appeal found that the discretion to record a conviction miscarried in these circumstances. The Court noted that the applicant's immaturity and the possibility that she acted from panic should have been considered earlier by the sentencing judge. The Court also observed that the learned sentencing judge might have been expected to afford an opportunity to counsel for the defence of debating this point if it was going to operate as a factor in exercising the discretion to record the conviction. Consequently, the Court decided to set aside the order recording the conviction.

The final orders of the Court of Appeal were that the application for leave to appeal was granted, and the sentence below was varied by deleting the recording of convictions in respect of counts 2 and 3. Otherwise, the sentence imposed below was confirmed.

Orders