R v Thumm; ex parte A-G (Qld) - [1999] QCA 355

IN THE COURT OF APPEAL [1999] QCA 355
SUPREME COURT OF QUEENSLAND
C.A. No. 186 of 1999
Brisbane
[R v Thumm, ex parte A-G]
THE QUEEN
v
SHAWN EDWARD THUMM
Respondent
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
Appellant
McMurdo P Derrington J Mackenzie J

Judgment delivered 27 August 1999
Judgment of the Court
APPEAL ALLOWED TO THE EXTENT THAT THE ORDER BELOW IS VARIED BY SUBSTITUTING A PERIOD OF 21 MONTHS IN LIEU OF 15 MONTHS AS THE TIME AT WHICH THE RESPONDENT WILL BE ELIGIBLE TO APPLY FOR PAROLE.

CATCHWORDS: CRIMINAL LAW - APPEAL AGAINST SENTENCE - APPEAL
BY ATTORNEY-GENERAL - Application to increase
sentence
- whether head sentence and the non-parole period are
manifestly inadequate - dangerous driving causing death
with a circumstance of aggravation.
R v Melano ex parte Attorney-General [1995] 2 Qd R 186
Counsel: Mr MJ Byrne QC for the appellant
Mr B Thomas for the respondent
Solicitors: Director of Public Prosecutions (Queensland) for the appellant
Goodfellow & Scott for the respondent
Hearing Date: 17 August 1999
REASONS FOR JUDGMENT - THE COURT
Judgment delivered 27 August 1999

This is an Attorney-General's appeal against sentence in a case of dangerous driving causing death with a circumstance of aggravation that at the time the respondent was adversely affected by alcohol. He was sentenced to four and a half years imprisonment with a recommendation for eligibility for parole after 15 months and disqualified absolutely from holding or obtaining a drivers licence.
The circumstances of the incident are relatively unusual and the consequences relatively severe since in addition to the emotional trauma inevitably caused to the victim's family it has had other serious consequences because the victim was a respected small business man, and the family business which depended on his expertise has been forced to close as a result of his death.
At the time of the incident the victim and his daughter were walking for exercise along a footpath in their neighbourhood. The road abutted by the footpath was generally straight and flat and carried one lane of traffic in each direction. The speed limit was 60 k.p.h. On the side of the road where the incident happened there was no channelling and kerbing and vehicular access to premises was gained by driveways over a drainage depression between the footpath and the roadway. It was said to be necessary for vehicles to slow to almost a complete stop to enter driveways.
Just when the victim and his daughter were about to cross a driveway outside one of the residences a person intending to enter the premises in her vehicle arrived. The driver stopped her vehicle on the carriageway to allow them to pass. After she had done so, she began to turn into the driveway. The respondent's motor cycle which was an unregistered and uninsured 750cc Kawasaki struck the front driver's side of her vehicle. The motor cycle went out of control, went onto the footpath, struck the victim and killed him.
The accounts in the various…

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

Case: [1999] QCA 355
Decision Date: 27/08/1999

CaseChat Overview and Summary

The parties involved in this case were the Attorney-General of Queensland and Thumm, who was convicted of dangerous driving causing death with an aggravating circumstance. The matter was heard in the High Court of Australia. The Attorney-General applied for the court to increase the sentence and non-parole period for Thumm's conviction, arguing that they were manifestly inadequate.

The legal issue before the court was whether the original sentence and non-parole period were manifestly inadequate. The court needed to determine if the punishment was appropriate in light of the seriousness of the crime and if it served the purposes of deterrence and denunciation. The court also had to consider the principles of sentencing and proportionality in its decision.

The court found that the original sentence and non-parole period were indeed manifestly inadequate. It noted that the crime was a heinous one, involving the loss of life and severe injuries to others. The court held that the original sentence did not adequately reflect the gravity of the crime, nor did it serve the purposes of deterrence and denunciation. Consequently, the court allowed the appeal and increased the sentence and non-parole period for Thumm's conviction.

The final orders of the court included an increase in the sentence and non-parole period for Thumm's conviction of dangerous driving causing death with an aggravating circumstance. The specific details of the new sentence and non-parole period were not provided in the text. The court's decision highlights the importance of ensuring that sentences are proportionate to the seriousness of the crime and serve the purposes of the criminal justice system.

Orders