R v Turner

Case [2024] QCA 172

SUPREME COURT OF QUEENSLAND

CITATION:

R v Turner [2024] QCA 172

PARTIES:

R
v
TURNER, Jennifer Joan
(applicant)

FILE NO/S:

CA No 247 of 2023
DC No 269 of 2023
DC No 372 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Rockhampton – Date of Sentence: 1 December 2023 (Clarke DCJ)

DELIVERED ON:

17 September 2024

DELIVERED AT:

Brisbane

HEARING DATE:

16 July 2024

JUDGES:

Bowskill CJ and Mullins P and North J

ORDERS:

1.    The application for leave to appeal against sentence is granted.

2. The orders made by the sentencing judge on 1 December 2023 are varied, to add a declaration, pursuant to s 159A(3B) of the Penalties and Sentences Act, that the time served in custody, from 24 June 2022 to 27 November 2023, being 522 days, is not taken to be imprisonment already served under the sentence imposed.

3.   The appeal against sentence is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted, on a plea of guilty, of dangerous operation of a vehicle causing death, while adversely affected by an intoxicating substance and while excessively speeding – where, at the time of the offence, the applicant was on parole for serious drug offending, held only a provisional driver’s licence, was under the influence of methylamphetamine and was speeding at 164 kilometres per hour – where the applicant was sentenced to 10 years’ imprisonment – where, by virtue of the nature of the offence and the term of imprisonment imposed, the applicant was convicted of a serious violent offence and a declaration to that effect was made – where, because the offence was committed while the applicant was on parole, the sentence imposed was required to be served cumulatively on the previous sentence – where the sentencing judge took into account, by reducing the sentence imposed, the period of time the applicant had served in custody (about 17 months) which could not be the subject of a formal pre-sentence custody declaration – whether the sentencing judge erred by failing to properly take into account the combined features of the applicant’s plea of guilty and the undeclared period of imprisonment – whether the sentence was manifestly excessive

Corrective Services Act 2006 (Qld), s 182, s 209(1)
Criminal Code (Qld), s 328A
Penalties and Sentences Act 1992 (Qld), s 9(1)(a), s 156A, s 159A(3B), s 161A(a), sch 1

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Postiglione v The Queen (1997) 189 CLR 295; [2017] HCA 26, cited
R v Barnham[2019] QCA 38, cited
R v Braeckmans (2022) 10 QR 144; [2022] QCA 25, cited
R v Brumby[2023] QCA 23, cited
R v Moody[2016] QCA 92, cited
R v Watson[2021] QCA 225, cited
R v Williams[2020] QCA 46, cited

COUNSEL:

B…

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AGLC
R v Turner [2024] QCA 172
Case
[2024] QCA 172
Decision Date

CaseChat Overview and Summary

In the case of R v Turner, the applicant appealed against the sentence imposed by the sentencing judge following his conviction for dangerous operation of a vehicle causing death. The applicant, who was on parole for serious drug offences at the time of the incident, was driving under the influence of methylamphetamine and at an excessive speed when the accident occurred. The sentencing judge, recognising the gravity of the offence and the applicant's prior criminal history, imposed a sentence of 10 years imprisonment, which was deemed to be served cumulatively with the previous sentence due to the offence occurring while the applicant was on parole. The applicant contended that the sentence was manifestly excessive and that the sentencing judge failed to adequately account for the undeclared period of pre-sentence custody served by the applicant.

The legal issues in this case revolved around the correctness of the sentence imposed and whether the sentencing judge appropriately considered the applicant's undeclared pre-sentence custody and the plea of guilty. The applicant argued that the combined effect of these factors warranted a lesser sentence. The court needed to determine whether the sentence was manifestly excessive and whether the sentencing judge erred in not properly accounting for the undeclared pre-sentence custody.

The court found that while the sentence was severe, it was not manifestly excessive given the nature of the offence and the applicant's criminal history. The court also determined that the sentencing judge did not err in failing to account for the undeclared pre-sentence custody since the applicant had not formally declared it. However, the court acknowledged that the sentencing judge should have made a declaration under section 159A(3B) of the Penalties and Sentences Act, recognising the period of undeclared pre-sentence custody. Consequently, the court granted the application for leave to appeal, varied the orders to include a declaration of the undeclared pre-sentence custody, and dismissed the appeal against sentence.

Orders

Orders of the court

1. The application for leave to appeal against sentence is granted.

2. The orders made by the sentencing judge on 1 December 2023 are varied, to add a declaration, pursuant to s 159A(3B) of the Penalties and Sentences Act, that the time served in custody, from 24 June 2022 to 27 November 2023, being 522 days, is not taken to be imprisonment already served under the sentence imposed.

3. The appeal against sentence 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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