SUPREME COURT OF QUEENSLAND
CITATION:
R v Turner [2022] QCA 175
PARTIES:
R
v
TURNER, Mathew Robert
(applicant)FILE NO/S:
CA No 108 of 2022
DC No 900 of 2022DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Brisbane – Date of Sentence: 3 June 2022 (Loury QC DCJ)
DELIVERED ON:
Date of Orders: 13 July 2022
Date of Publication of Reasons: 13 September 2022DELIVERED AT:
Brisbane
HEARING DATE:
13 July 2022
JUDGES:
Mullins P and Morrison JA and Boddice J
ORDERS:
Date of Orders: 13 July 2022
1. Application for leave to appeal refused.
2. Direct the registrar procure the correction of the endorsement of the indictment to accord with the sentence imposed by the sentencing judge of imprisonment of 2 years suspended after 6 months for an operational period of 3 years.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to dangerously operating a vehicle, causing grievous bodily harm – where the applicant plead guilty at an early stage – where the applicant had no prior criminal history – where the applicant was sentenced to two years’ imprisonment, suspended after serving six months in custody – whether the learned sentencing judge wrongly permitted considerations of general deterrence to overwhelm the sentencing discretion – whether the sentence required six months actual imprisonment – whether the sentence was manifestly excessive
Penalties and Sentences Act 1992 (Qld), s 9(3)(f)
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, followed
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, followed
R v Allen[2012] QCA 259, cited
R v Conquest; Ex parte: Attorney-General (Qld)[1995] QCA 567, cited
R v Danter[2016] QCA 94, followed
R v Iaria[2008] QCA 396, followed
R v Lightbody (2019) 88 MVR 95; [2019] QCA 61, cited
R v MacDonald (2014) 244 A Crim R 148; [2014] QCA 9, followed
R v McGuigan[2004] QCA 381, followed
R v Oliver [2019] 3 Qd R 22; [2018] QCA 348, cited
R v Proesser[2007] QCA 61, followed
R v Tout[2012] QCA 296, followed
R v Towers (2009) 52 MVR 438; [2009] QCA 159, followed
R v Wakefield (2008) 187 A Crim R 514; [2008] QCA 269, followedCOUNSEL:
M J Jackson for the applicant
T L Corsbie for the respondentSOLICITORS:
N R Barbi Solicitor for the applicant
Director of Public Prosecutions (Queensland) for the respondent
MULLINS P: I joined in the making of the orders on 13 July 2022 for the reasons given by Morrison JA.
MORRISON JA: On 8 April 2021 the applicant drove through the intersection of Marquis and Juliette Streets at Greenslopes. As he did so the lights changed from amber to red. The applicant was driving in the middle lane.
The change of traffic lights at that…
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- AGLC
- R v Turner [2022] QCA 175
- Case
- [2022] QCA 175
- Decision Date
CaseChat Overview and Summary
The court considered whether the learned sentencing judge had wrongly permitted considerations of general deterrence to overwhelm the sentencing discretion. The court observed that the need for general deterrence and denunciation warranted a sentence which saw the appellant serve some actual imprisonment. The court also considered whether the sentence required six months actual imprisonment and whether the sentence was manifestly excessive.
The court rejected the contention that the learned sentencing judge wrongly permitted considerations of general deterrence to overwhelm the sentencing discretion. The court found that the appellant was driving at an inappropriate speed, and recklessly, and that proper care and astute observation of traffic signals would have made it plain to the appellant that he was in the wrong lane. The court held that the need for general deterrence and denunciation warranted a sentence which saw the appellant serve some actual imprisonment.
The court made two orders. Firstly, the application for leave to appeal was refused. Secondly, the registrar was directed to procure the correction of the endorsement of the indictment to accord with the sentence imposed by the sentencing judge of imprisonment of 2 years suspended after 6 months for an operational period of 3 years.
Orders
Orders of the court
Date of Orders: 13 July 2022
1. Application for leave to appeal refused.
2. Direct the registrar procure the correction of the endorsement of the indictment to accord with the sentence imposed by the sentencing judge of imprisonment of 2 years suspended after 6 months for an operational period of 3 years.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Her Honour acknowledged the applicant’s steps to rehabilitation by engaging in the Queensland Traffic Offending programme and observed that protection of the community did not loom as a large factor. Her Honour continued:[6]“In my view, the need for general deterrence and denunciation warrant a sentence which does see you serve some actual imprisonment.”[6]AB 32, line 18.General deterrence considerations The first contention advanced by Mr Jackson of Counsel, on behalf of the applicant, was that the learned sentencing judge wrongly permitted considerations of general deterrence to overwhelm the sentencing discretion. Reference was made to s 9(3)(f) of the Penalties and Sentences Act 1992 (Qld), as part of the submission that it had particular relevance in circumstances where a driver displayed a disregard for the interest of public safety, in the sense that it involved a risk over and above that ordinarily associated with driving. It was submitted that it was important to deter drivers from falling into the “murky area between recklessness and deliberate harm”[7] but that general deterrence was concerned with what the defendant or others might do in the future, and therefore it was important to consider the need to punish the applicant as an instrument to deter others in his position.[7]Referring to R v Conquest; Ex parte: Attorney-General (Qld) [1995] QCA 567 at [11]. Accepting the well-known passage concerning deterrence in R v Allen[8] the submission was made that in the applicant’s case “there was no suggestion of alcohol, speed, fatigue or a period of reckless driving”. For those reasons general deterrence did not “loom large” in the circumstances of this case.[8]R v Allen [2012] QCA 259 at [17]. In my respectful view, that contention should be rejected. There was no suggestion of alcohol or fatigue, but in the circumstances, there was no doubt that the applicant was driving at inappropriate speed, and recklessly. Having entered the first intersection on an amber light turning to red, the applicant did not reduce his speed in the next 100 metres to the second intersection where he collided with the complainant. The elapsed time was about six seconds, and the distance covered about 100 metres. It takes little mathematics to understand that the applicant’s likely speed was at the speed limit of 60 kilometres per hour. However, that was a speed maintained in circumstances where, if the applicant had been keeping an appropriate lookout, he would have well known that the next set of lights had already turned red and he needed to be reducing speed in order to stop. Moreover, whilst it is true to say that he was driving on an unfamiliar road, proper care and astute observation of traffic signals would have made it plain to the applicant that he was in the wrong lane if he wished to travel straight ahead, and that he needed to be ready to stop. It was accepted that he did not brake at all until after he collided with the complainant.