R v Towers - [2009] QCA 159

SUPREME COURT OF QUEENSLAND

CITATION:

R v Towers [2009] QCA 159

PARTIES:

R
v
TOWERS, Jonathan
(applicant/appellant)

FILE NO/S:

CA No 64 of 2009
DC No 3350 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

12 June 2009

DELIVERED AT:

Brisbane

HEARING DATE:

5 June 2009

JUDGES:

Holmes and Muir JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application for leave to appeal allowed;

2.   Appeal allowed;

3.   Sentence of 18 months imprisonment with a parole release date fixed at 6 September 2009 substituted;

4.   Period of 99 days between 6 March 2009 and 12 June 2009 declared to be imprisonment already served under that sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to one count of dangerous operation of a motor vehicle causing grievous bodily harm – where applicant sentenced to two and a half years imprisonment with a parole release date after 10 months – where applicant turned suddenly across a double white line on a major road, disobeying a “No right turn” sign, and collided with a motorcycle he had not seen – where sentencing judge found the case was closer to deliberate risk-taking than one of momentary inattention – where applicant offered assistance at the scene and co-operated with police – where applicant had a criminal history and bad traffic history – whether sentencing judge had sufficient regard to applicant’s actual culpability in the circumstances – whether sentencing judge gave sufficient weight to mitigating features – whether sentence manifestly excessive

R v Hook[2006] QCA 458, cited
R v Lacey[2005] QCA 431, cited
R v McGuigan[2004] QCA 381, distinguished
R v Price[2005] QCA 52, cited
R v Proesser [2007] QCA 61, cited
R v Roser[2004] QCA 318, cited
R v Tabakovic (2005) 154 A Crim R 30; [2005] QCA 90, cited
R v Wakefield[2008] QCA 269, distinguished

COUNSEL:

P E Smith for the applicant/appellant
M B Lehane for the respondent

SOLICITORS:

Robertson O’Gorman for the applicant/appellant
Director of Public Prosecutions (Qld) for the respondent

:HOLMES JA The applicant seeks leave to appeal against a sentence of two and a half years imprisonment with a parole release date after 10 months imposed on him on a count of dangerous operation of a motor vehicle causing grievous bodily harm. He was also disqualified absolutely from holding or obtaining a driver’s licence, but he takes no issue with that order.

The dangerous driving and the grievous bodily harm

The applicant collided with a motorcycle, injuring its rider. The collision occurred just before 6.00 am one Sunday in June 2008 on Kingsford Smith Drive in Ascot. It was still dark at the time but the road was well lit and the motorcycle’s…

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 Towers

Details

AGLC: R v Towers [2009] QCA 159
Case: [2009] QCA 159
Decision Date: 12 June 2009

CaseChat Overview and Summary

The case of R v Towers involved an appeal against the sentence handed down by the sentencing judge in a criminal matter. Towers pleaded guilty to dangerous operation of a motor vehicle causing grievous bodily harm. The incident in question involved Towers turning suddenly across a double white line on a major road, disobeying a “No right turn” sign, and colliding with a motorcycle he had not seen. The sentencing judge found that the case was closer to deliberate risk-taking than one of momentary inattention. Towers was sentenced to two and a half years imprisonment with a parole release date after 10 months. Towers offered assistance at the scene and co-operated with police. The sentencing judge took into account Towers' criminal history and bad traffic history.

The central legal issues in the appeal were whether the sentencing judge had sufficient regard to Towers' actual culpability in the circumstances and whether the sentencing judge gave sufficient weight to mitigating features. The appeal also raised the question of whether the sentence was manifestly excessive. The appeal was premised on the argument that the sentence was manifestly excessive and did not adequately reflect the mitigating factors present in the case. The appeal hinged on the interpretation of the appropriate weight to be given to the mitigating factors, particularly Towers' cooperation with police and his offer of assistance at the scene.

The court found that the sentencing judge had not given sufficient weight to the mitigating factors, particularly Towers' offer of assistance at the scene and his cooperation with police. The court also found that the sentencing judge had not sufficiently considered Towers' actual culpability in the circumstances. The court was of the opinion that the sentence was manifestly excessive given the mitigating factors and the nature of Towers' culpability. As a result, the appeal was allowed and a sentence of 18 months imprisonment with a parole release date fixed at 6 September 2009 was substituted. The court also declared that the period of 99 days between 6 March 2009 and 12 June 2009 was to be considered as imprisonment already served under that sentence.

Orders

Orders of the court

1. Application for leave to appeal allowed;

2. Appeal allowed;

3. Sentence of 18 months imprisonment with a parole release date fixed at 6 September 2009 substituted;

4. Period of 99 days between 6 March 2009 and 12 June 2009 declared to be imprisonment already served under that sentence.

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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CITATION:	R v Towers [2009] QCA 159
PARTIES:	R v TOWERS, Jonathan (applicant/appellant)
FILE NO/S:	CA No 64 of 2009 DC No 3350 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	12 June 2009
DELIVERED AT:	Brisbane
HEARING DATE:	5 June 2009
JUDGES:	Holmes and Muir JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal allowed; 2. Appeal allowed; 3. Sentence of 18 months imprisonment with a parole release date fixed at 6 September 2009 substituted; 4. Period of 99 days between 6 March 2009 and 12 June 2009 declared to be imprisonment already served under that sentence.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to one count of dangerous operation of a motor vehicle causing grievous bodily harm – where applicant sentenced to two and a half years imprisonment with a parole release date after 10 months – where applicant turned suddenly across a double white line on a major road, disobeying a “No right turn” sign, and collided with a motorcycle he had not seen – where sentencing judge found the case was closer to deliberate risk-taking than one of momentary inattention – where applicant offered assistance at the scene and co-operated with police – where applicant had a criminal history and bad traffic history – whether sentencing judge had sufficient regard to applicant’s actual culpability in the circumstances – whether sentencing judge gave sufficient weight to mitigating features – whether sentence manifestly excessive R v Hook[2006] QCA 458, cited R v Lacey[2005] QCA 431, cited R v McGuigan[2004] QCA 381, distinguished R v Price[2005] QCA 52, cited R v Proesser [2007] QCA 61, cited R v Roser[2004] QCA 318, cited R v Tabakovic (2005) 154 A Crim R 30; [2005] QCA 90, cited R v Wakefield[2008] QCA 269, distinguished
COUNSEL:	P E Smith for the applicant/appellant M B Lehane for the respondent
SOLICITORS:	Robertson O’Gorman for the applicant/appellant Director of Public Prosecutions (Qld) for the respondent