R v Tresize - [2011] QCA 139

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tresize [2011] QCA 139

PARTIES:

R
v
TRESIZE, Luke Everett
(applicant)

FILE NO/S:

CA No 323 of 2010
DC No 341 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

24 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

23 May 2011

JUDGES:

Margaret McMurdo P, Cullinane and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal is dismissed

CATCHWORDS:

CRIMINAL LAW- APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to dangerous operation of a vehicle causing grievous bodily harm with the circumstance of aggravation that he was adversely affected by an intoxicating substance – where the applicant drove dangerously crossing double white lines and causing a collision – where the applicant attempted to leave the scene – where the applicant had a blood alcohol content of 0.19% and 12mg/kg of the active ingredient of cannabis in his blood – where the applicant had a serious traffic history – whether the sentence was manifestly excessive

R v Haydon (1996) 26 MVR 345; [1996] QCA 503, considered
R v Ibrahim (2003) 40 MVR 183; [2003] QCA 386, considered
R v Roser[2005] QCA 457, considered
R v Smith[2005] QCA 26, considered
R v Saltmarsh (2007) 46 MVR 573; [2007] QCA 25, considered
R v Slater[1997] QCA 042, considered
R v Tabakovic (2005) 154 A Crim R 30; [2005] QCA 90, considered

COUNSEL:

J Trevino for the appellant
M Connolly for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecution (Queensland) for the respondent

[1] MARGARET McMURDO P: I agree with Cullinane J's reasons for refusing this application for leave to appeal against sentence.

[2] The applicant was sentenced to five years imprisonment with a parole eligibility date fixed after 18 months for this offence of dangerous operation of a vehicle causing grievous bodily harm while adversely affected by an intoxicating substance. The maximum penalty was 14 years imprisonment. The offending had a significant effect on the 21 year old victim, an unskilled worker, who suffered a comminuted fracture of the right wrist which required surgical reduction and placement in a cast for about three months. He noted in his victim impact statement prepared a few weeks before the sentence that his wrist was deformed and he was still suffering pain and having orthopaedic consultations.

[3] The applicant attempted to leave the scene after the accident. He had a serious traffic history including two entries for driving under the influence of liquor. He also had a criminal history demonstrating past anti-social conduct. At 33 years of age and with his prior traffic and criminal history, the applicant's offending "hooning" behaviour whilst seriously intoxicated which resulted in serious personal harm to an innocent road user and…

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 Tresize

Details

AGLC: R v Tresize [2011] QCA 139
Case: [2011] QCA 139
Decision Date: 24 June 2011

CaseChat Overview and Summary

The appeal before the court involved the applicant, Tresize, who had pleaded guilty to charges of dangerous operation of a vehicle causing grievous bodily harm, with the aggravating circumstance that he was adversely affected by an intoxicating substance. The incident resulted in a collision caused by the applicant crossing double white lines and subsequently attempting to leave the scene. The applicant had a blood alcohol content of 0.19% and 12mg/kg of the active ingredient of cannabis in his blood at the time of the incident. The court was also made aware of the applicant's extensive history of traffic-related offences. The primary issue before the court was whether the sentence imposed was manifestly excessive, warranting an appeal.

In assessing the grounds for interference, the court considered the nature and severity of the offence, the personal circumstances of the applicant, and the principle of proportionality in sentencing. The court noted the serious nature of the offence, the aggravating circumstances, and the applicant's prior traffic history. However, the court also considered the overall sentence, which included a term of imprisonment and a disqualification from driving. The court held that, while the sentence was severe, it was not manifestly excessive, as it was proportionate to the gravity of the offence and consistent with the sentencing principles applicable in similar cases.

The court ultimately dismissed the application for leave to appeal, finding that the sentence imposed was not manifestly excessive. The reasoning emphasised the need to balance the severity of the offence and the applicant's culpability with the need for appropriate deterrence and rehabilitation. The court's decision underscored the importance of proportionality in sentencing, particularly in cases involving dangerous driving and the use of intoxicating substances.

Orders

Orders of the court

Application for leave to appeal is dismissed

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 Tresize [2011] QCA 139
PARTIES:	R v TRESIZE, Luke Everett (applicant)
FILE NO/S:	CA No 323 of 2010 DC No 341 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	24 June 2011
DELIVERED AT:	Brisbane
HEARING DATE:	23 May 2011
JUDGES:	Margaret McMurdo P, Cullinane and Jones JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal is dismissed
CATCHWORDS:	CRIMINAL LAW- APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to dangerous operation of a vehicle causing grievous bodily harm with the circumstance of aggravation that he was adversely affected by an intoxicating substance – where the applicant drove dangerously crossing double white lines and causing a collision – where the applicant attempted to leave the scene – where the applicant had a blood alcohol content of 0.19% and 12mg/kg of the active ingredient of cannabis in his blood – where the applicant had a serious traffic history – whether the sentence was manifestly excessive R v Haydon (1996) 26 MVR 345; [1996] QCA 503, considered R v Ibrahim (2003) 40 MVR 183; [2003] QCA 386, considered R v Roser[2005] QCA 457, considered R v Smith[2005] QCA 26, considered R v Saltmarsh (2007) 46 MVR 573; [2007] QCA 25, considered R v Slater[1997] QCA 042, considered R v Tabakovic (2005) 154 A Crim R 30; [2005] QCA 90, considered
COUNSEL:	J Trevino for the appellant M Connolly for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecution (Queensland) for the respondent