R v Thomas

[2015] QCA 20

SUPREME COURT OF QUEENSLAND

CITATION:

R v Thomas [2015] QCA 20

PARTIES:

R
v
THOMAS, Joshua Adam
(applicant/appellant)

FILE NO/S:

CA No 144 of 2014
DC No 99 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

27 February 2015

DELIVERED AT:

Brisbane

HEARING DATE:

29 September 2014

JUDGES:

Holmes and Morrison JJA and Mullins J
Joint reasons for judgment of Holmes JA and Mullins J; separate reasons of Morrison JA dissenting

ORDER:

1.    The application for leave to appeal is granted.

2.    The appeal is allowed.

3.   The sentence imposed below is varied by substitution of a sentence of seven years imprisonment on count 1, with parole eligibility on 23 September 2016.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of dangerous operation of a motor vehicle causing death and grievous bodily harm, whilst adversely affected by an intoxicating substance, namely methylamphetamine – where the applicant was sentenced to nine years imprisonment, with eligibility for release on parole after he had served three years – where the accident resulted in the death of one child and caused grievous bodily harm to another child – whether the driving involved any element of deliberate recklessness – whether the sentence was manifestly excessive in all the circumstances

R v Clark[2009] QCA 361, considered
R v Frost; ex parte Attorney-General (2004) 149 A Crim R 151; [2004] QCA 309, considered
R v Hallett[2009] QCA 96, considered
R v Hopper[2011] QCA 296, considered
R v Kelly[1999] QCA 296, considered
R v Nikora[2014] QCA 192, considered
R v Ross[2009] QCA 7, considered

COUNSEL:

S R Lewis for the applicant/appellant
B J Power for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

1. HOLMES JA AND MULLINS J:  In this application we have had the advantage of reading the judgment of Morrison JA in draft, and gratefully adopt his setting out of the facts and submissions.  We have, however, reached a different conclusion as to the proper result, largely because we take a different view of the guidance which can be obtained from judgments of this Court in other cases involving either dangerous driving causing death or manslaughter.

2. It is, in our view, of some importance that the dangerous operation of a vehicle causing death and grievous bodily harm to which the applicant pleaded guilty was of limited duration and did not involve any element of deliberately reckless driving. As to the first factor, there is a distinction to be drawn between the time and distance for which a defendant drives while his faculties are impaired and the duration of his driving which is actually dangerous and which results in death; the latter conduct, of course, being the gravamen of the offence.  The offence…