R v Tabakovic

Case [2005] QCA 90

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tabakovic [2005] QCA 90

PARTIES:

R
v
TABAKOVIC, Senad
(applicant/appellant)

FILE NO/S:

CA No 3 of 2005
DC No 2892 of 2004
DC No 2858 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

8 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2005

JUDGES:

McMurdo P, Jerrard JA and Fryberg J
Separate reasons for judgment of each member of the Court, McMurdo P and Jerrard JA concurring as to the orders made, Fryberg J dissenting

ORDER:

1.  Grant leave to appeal against sentence
2.  Allow appeal
3.  That the appellant be sentenced instead to three years      imprisonment to be suspended after he has served 10      months

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – applicant convicted of dangerous operation of a vehicle causing grievous bodily harm while adversely affected by alcohol – applicant’s blood alcohol concentration was .152 per cent – applicant had no prior convictions but bad traffic history – whether the head sentence of three and a half years exceeded the appropriate range – whether the non-suspended period of 16 months was excessive

R v Ekstrom [1997] QCA 471; CA No 229 of 1997, 23 September 1997, considered
R v Hine [2002] QCA 212; CA No 31 of 2002, 21 June 2002, distinguished
R v McGuire; ex parte A-G (Qld) [2002] QCA 439; CA No 197 of 2002, 18 October 2002, considered
R v Quinn [2003] QCA 417; CA No 241 of 2003, 22 September 2003, considered
R v Rowley [1998] QCA 339; CA No 240 of 1998, 26 August 1998, considered
R v Russell [2002] QCA 285; CA No 91 of 2002, 6 August 2002, distinguished
R v Simpson [2003] QCA 100; CA No 344 of 2002, 14 March 2003, considered
R v Wickett [2003] QCA 57; CA No 359 of 2002, 20 February 2003, considered

COUNSEL:

C M Muir for the applicant
M J Copley for the respondent

SOLICITORS:

MacDonnells Solicitors for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. McMURDO P:  I agree with the orders proposed by Jerrard JA and with his reasons.

  1. JERRARD JA:  On 10 December 2004 Senad Tabakovic pleaded guilty to having dangerously operated a motor vehicle on 18 October 2003, and having thereby caused grievous bodily harm to John Robertson, at a time when Mr Tabakovic was adversely affected by alcohol and when the concentration of alcohol in his blood exceeded 150 mg of alcohol per 100 ml of blood.  That plea of guilty made Mr Tabakovic liable to 14 years imprisonment, and he was in fact sentenced to three and a half years imprisonment, that sentence to be suspended after he served 16 months.  The learned judge fixed an operational period of five years, and disqualified him from…

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Details
AGLC
R v Tabakovic [2005] QCA 90
Case
[2005] QCA 90
Decision Date

CaseChat Overview and Summary

In the case of R v Tabakovic, the appellant was convicted of dangerous operation of a vehicle causing grievous bodily harm while adversely affected by alcohol. The appellant's blood alcohol concentration was .152 per cent at the time of the offence, and while this was his first conviction, he had a poor traffic history. The trial judge sentenced the appellant to three and a half years imprisonment, with 16 months of this to be served before any possibility of parole. The appellant sought to appeal this sentence, arguing that the head sentence of three and a half years was excessive and that the non-suspended period of 16 months was also excessive.

The court was required to determine whether the sentence imposed by the trial judge was appropriate in the circumstances of the case. In particular, the court had to consider whether the head sentence of three and a half years exceeded the appropriate range, and whether the non-suspended period of 16 months was excessive. The court also had to consider the relevant principles of sentencing and the factors that should be taken into account when imposing a sentence for this type of offence.

The court found that the sentence imposed by the trial judge was excessive in both the head sentence and the non-suspended period. The court found that a sentence of three years imprisonment, suspended after the appellant had served 10 months, was more appropriate. The court found that the trial judge had given insufficient weight to the appellant's lack of prior convictions and his otherwise good character, and had given too much weight to his poor traffic history. The court also found that the non-suspended period of 16 months was excessive, given the appellant's age and the fact that he had no prior convictions.

The court allowed the appeal and ordered that the appellant be sentenced instead to three years imprisonment, suspended after he had served 10 months. This means that the appellant will not have to serve any time in prison, provided that he remains of good behaviour for the next two and a half years.

Orders

Orders of the court

1. Grant leave to appeal against sentence

2. Allow appeal

3. That the appellant be sentenced instead to three years imprisonment to be suspended after he has served 10 months

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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