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R v Turner

R v Turner

Case [2016] QCA 282 4 November 2016

Criminal Liability

Mens Rea & Intention

Sentencing

Serious Violent Offence Declaration

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Turner [2016] QCA 282

PARTIES:

R
v
TURNER, Raymond James
(applicant)

FILE NO/S:

CA No 132 of 2016
DC No 75 of 2016
DC No 474 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich – Date of Sentence: 29 April 2016

DELIVERED ON:

4 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

4 October 2016

JUDGES:

Gotterson JA and Douglas and Boddice JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to a five-count indictment and a bench charge sheet alleging 14 summary offences – where the indictment included one count of dangerous operation of a motor vehicle causing grievous bodily harm while adversely affected by an intoxicating substance – where the applicant drove dangerously while under the influence of methylamphetamine, on bail, disqualified from driving, and with an overloaded vehicle – where the applicant was pursued by two police vehicles and avoided a tyre deflation device before colliding with a parked vehicle, resulting in three of his five passengers sustaining injuries which were sufficiently serious to amount to grievous bodily harm – where the applicant was sentenced to six years imprisonment for the dangerous operation offence which was declared a serious violent offence – where the applicant alleges the serious violent offence declaration renders the sentence manifestly excessive – whether the offence might properly be regarded as being beyond the norm – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 161B(3)(a)(i)

R v Balic[2005] QCA 212, considered
R v Benjamin (2012) 224 A Crim R 40; [2012] QCA 188, cited
R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206, cited
R v Frost; ex parte Attorney-General (2004) 149 A Crim R 151; [2004] QCA 309, considered
R v Hopper[2011] QCA 296, considered
R v Ibrahim[2003] QCA 386, considered
R v Lennon[1999] QCA 192, considered
R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, cited
R v Moody[2016] QCA 92, considered
R v Pham (2016) 90 ALJR 13; [2015] HCA 39, applied
R v Slater[1997] QCA 42, considered
R v Vessey (1996) 86 A Crim R 290; [1996] QCA 11, considered
R v Wilde; ex parte Attorney-General (Qld) (2002) 135 A Crim R 538; [2002] QCA 501, considered

COUNSEL:

The applicant appeared on his own behalf
D R Kinsella for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

GOTTERSON JA: On 29 April 2016, in the District Court at Ipswich, the applicant, Raymond James Turner, pleaded guilty to each count…

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 Turner

Details

AGLC: R v Turner [2016] QCA 282
Case: [2016] QCA 282
Decision Date: 4 November 2016

CaseChat Overview and Summary

The case of R v Turner involved the applicant, Turner, who had pleaded guilty to a five-count indictment and a bench charge sheet involving 14 summary offences, including dangerous operation of a motor vehicle causing grievous bodily harm while under the influence of an intoxicating substance. Turner was driving dangerously while on bail, disqualified from driving, and with an overloaded vehicle. He was pursued by police, avoided a tyre deflation device, and eventually collided with a parked vehicle, resulting in serious injuries to three of his passengers. Turner was sentenced to six years imprisonment for the dangerous operation offence, which was declared a serious violent offence.

The legal issues before the court were whether the declaration of the dangerous operation of a motor vehicle causing grievous bodily harm offence as a serious violent offence was appropriate, and whether the sentence was manifestly excessive. Turner argued that the serious violent offence declaration rendered the sentence manifestly excessive, and that his dangerous driving was accidental due to his intoxication. The court rejected Turner's arguments, finding that his driving was deliberate and that the risk of injury was inherent in the manner of his driving. The court also found that Turner's injuries and psychological symptoms were not relevant to the decision to impose a serious violent offence declaration.

The court found that the discretion to declare the dangerous operation of a motor vehicle causing grievous bodily harm offence a serious violent offence was exercisable by the sentencing judge, and that the offence in respect of which a declaration is made, not the offender, is the focus of the declaration. The court found that the offence was a crime pursuant to s 328A(4) of the Criminal Code and is listed as a serious violent offence in Schedule 1 to the Penalties and Sentences Act 1992 (Qld). The court found that the features of the offence, including the police pursuit, passenger overload, substantial distance driven dangerously, and the fact that the dangerous driving ceased only as a result of the collision, contributed to the characterisation of the offence as beyond the norm for this kind of offending.

The court refused Turner's application for leave to appeal against sentence.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Serious violent offence declaration: The discretion conferred by s 161B(3)(a)(i) of the Penalties and Sentences Act 1992 (Qld) to declare the dangerous operation of a motor vehicle causing grievous bodily harm offence a serious violent offence was exercisable by the learned sentencing judge.[30] It is the offence in respect of which a declaration is made, not the offender. It follows that the applicant’s self-commendation that he is not a violent person is rather misdirected.[30]This offence is a crime pursuant to s 328A(4) of the Criminal Code and is listed as a serious violent offence in Schedule 1 to the Penalties and Sentences Act 1992 (Qld). Turning to other submissions made by the applicant, I mention first his reliance upon the fact that he was intoxicated and his contention that, as a result, his dangerous driving was “accidental”. I reject that argument. As was acknowledged by the applicant at the hearing of the application,[31] his prolonged erratic driving was undertaken once he knew that the police were in pursuit of him. It was therefore a response on his part that he made deliberately. Insofar as the argument seeks to characterise the injuries to the passengers as accidentally caused, I would accept that the applicant did not intend to injure his passengers.[32] However, inherent in the manner of his dangerous driving was the very significant risk that injuries of those kinds would result.[31]Appeal Transcript 1-3 ll46-47; 1-6 ll3-5.[32]Intention to cause grievous bodily harm is not an element of the offence of which the applicant was convicted. The applicant also submitted that the injuries he sustained, together with a range of “trauma-form” psychological symptoms he suffered[33] thereafter, amounted to extra-curial punishment. This submission is at odds with the disavowal by his counsel at sentence of a submission of that kind with respect to the injuries.[34] The approach taken by counsel was realistic. In any event, injuries sustained by the applicant have little, if any, relevance to a decision to impose a serious violent offence declaration.[33]As stated in the report of Dr S Morgan, psychologist, dated 15 February 2016: Exhibit 14; AB100-113. This report noted that the applicant had terminated in-custody counselling of his own volition in October 2015.[34]AB36; Tr1-26. Counsel explained that he tendered the evidence of the injuries in response to an unwillingness on the part of a previous prosecutor to accept that the applicant had been injured. In McDougall and Collas, this Court observed:“…the exercise of the discretion will usually reflect an appreciation by the sentencing judge that the offence is a more than usually serious, or violent, example of the offence in question, and, so outside ‘the norm’ for that type of offence…”[35]This was an offence that might properly be regarded as beyond the norm for this kind of offending. Features of it that contribute to such a characterisation are the police pursuits involving a number of vehicles, the passenger overload, the substantial distance driven dangerously, the foiling of the police use of stingers, and the fact that the dangerous driving ceased only as a result of the collision.[35]At [21]. Citing R v DeSalvo (2002) 127 A Crim R 229 at 230-231 [8]-[9], and 232 [16]; R v BAW [2005] QCA 334 at [27]-[28].

Citations

AGLC Citation

R v Turner [2016] QCA 282

Most Recent Citation

RvCOLEGATE, Philip Paul [2022] QCA 148

Cases citing this decision · 3 of 3 shown

R v Jensen-Coulson
[2023] SASCA 76 Para 24

…applied. [41] R v McDougall & Collas [2007] 2 Qd R 87 at [18] following R v Everleigh [2003] 1 Qd R 398 at [54]. See also R v Turner [2016] QCA 282 at [38]-[39]; R v Free [2020] QCA 58 at [47]; R v Smith [2022] QCA 89 at [14] all following McDougall & Collas [2007] 2 Qd R 87.…
RvCOLEGATE, Philip Paul
[2022] QCA 148

…It is sufficient to refer to three comparable cases. In R v Turner [2016] QCA 282, this Court declined to interfere with a sentence of six years imprisonment for an offence of the dangerous operation of a motor vehicle causing grievous bodily harm while adversely affected by an intoxicating substance. This was de…
Heydt v The Commissioner of Police
[2017] QDC 104 Para 7

…asons". (Citations removed.) Relevant considerations [5] (2010) 242 CLR 520. [6] At [59]; see also The Queen v Pham [2015] HCA 39 at [28]; R v Turner [2016] QCA 282 at [48]. (i) Nature of offending…

View all 3 citing cases →

Cases cited in this decision · 18 of 18 shown

R v Brown; Ex parte
[2016] QCA 156 Para 8

…ld)].” [27] [26][2000] 2 Qd R 183; [1999] QCA 206 per de Jersey CJ, Thomas JA and Demack J. See also R v Brown; Ex parte Attorney-General (Qld) [2016] QCA 156 at [99] per Jackson J (with whom Fraser JA and Bond J agreed). [27]At [34].…
R v Moody
[2016] QCA 92 Para 1

…of sentences imposed for comparable offending. [15][1999] QCA 192. [16][2005] QCA 212. [17][2003] QCA 386. [18][1997] QCA 42. [19][2011] QCA 296. [20][2016] QCA 92.…
R v Pham
[2015] HCA 39 Para 18

…sion that there must have been some misapplication of principle on the part of the learned sentencing judge that warrants appellate intervention. [39][2015] HCA 39; (2016) 90 ALJR 13 at [28].…
R v Benjamin
[2012] QCA 188 Para 17

…of the public or adequate punishment requires a longer period of actual custody before eligibility for parole…”[38] [37](2012) 224 A Crim R 40; [2012] QCA 188. See also Brown at [103]. [38]At [3].…
R v Hopper
[2011] QCA 296 Para 1

…rative of the range of sentences imposed for comparable offending. [15][1999] QCA 192. [16][2005] QCA 212. [17][2003] QCA 386. [18][1997] QCA 42. [19][2011] QCA 296. [20][2016] QCA 92.…
R v McDougall and Collas
[2006] QCA 365 Para 9

…d for that declared serious violent offence be toward the lower end of the otherwise available range of sentences…”[29] [28][2007] 2 Qd R 87; [2006] QCA 365 per Jerrard, Keane and Holmes JJA. [29]At [19].…
R v BAW
[2005] QCA 334 Para 13

…ased only as a result of the collision. [35]At [21]. Citing R v DeSalvo (2002) 127 A Crim R 229 at 230-231 [8]-[9], and 232 [16]; R v BAW [2005] QCA 334 at [27]-[28].…
R v Balic
[2005] QCA 212 Para 1

…Slater ,[18] R v Hopper ,[19] and R v Moody [20] as illustrative of the range of sentences imposed for comparable offending. [15][1999] QCA 192. [16][2005] QCA 212. [17][2003] QCA 386. [18][1997] QCA 42. [19][2011] QCA 296. [20][2016] QCA 92.…
R v Frost; ex parte A-G
[2004] QCA 309 Para 2

…claration, he will have to serve a longer period of imprisonment before he is eligible for parole than the offenders in those cases had to serve. [12][2004] QCA 309; (2004) 149 A Crim R 151. [13][2002] QCA 501. [14][1996] QCA 11; (1996) 86 A Crim R 290.…
R v Ibrahim
[2003] QCA 386 Para 1

…pper ,[19] and R v Moody [20] as illustrative of the range of sentences imposed for comparable offending. [15][1999] QCA 192. [16][2005] QCA 212. [17][2003] QCA 386. [18][1997] QCA 42. [19][2011] QCA 296. [20][2016] QCA 92.…
R v Nagy
[2003] QCA 175 Para 7

…offending.[25] [25] Griffiths v The Queen (1989) 167 CLR 372 at 377 per Brennan and Dawson JJ; 393 per McHugh J. See also R v Nagy [2004] 1 Qd R 63; [2003] QCA 175 per Williams JA at [31]-[32]; Jerrard JA at [66].…
R v Wilde; ex parte A-G (Qld)
[2002] QCA 501 Para 2

…iod of imprisonment before he is eligible for parole than the offenders in those cases had to serve. [12][2004] QCA 309; (2004) 149 A Crim R 151. [13][2002] QCA 501. [14][1996] QCA 11; (1996) 86 A Crim R 290.…
R v DeSalvo
[2002] QCA 63 Para 13

…ling of the police use of stingers, and the fact that the dangerous driving ceased only as a result of the collision. [35]At [21]. Citing R v DeSalvo (2002) 127 A Crim R 229 at 230-231 [8]-[9], and 232 [16]; R v BAW [2005] QCA 334 at [27]-[28].…
R v Bojovic
[1999] QCA 206 Para 8

…le combination of the purposes mentioned in s 9(1)(a) to 9(1)(e) of the [ Penalties and Sentences Act 1992 (Qld)].” [27] [26][2000] 2 Qd R 183; [1999] QCA 206 per de Jersey CJ, Thomas JA and Demack J. See also R v Brown; Ex parte Attorney-General (Qld) [2016] QCA 156 at [99] per Jackson J (with whom Fraser JA and…
R v Lennon
[1999] QCA 192 Para 1

…v Ibrahim ,[17] R v Slater ,[18] R v Hopper ,[19] and R v Moody [20] as illustrative of the range of sentences imposed for comparable offending. [15][1999] QCA 192. [16][2005] QCA 212. [17][2003] QCA 386. [18][1997] QCA 42. [19][2011] QCA 296. [20][2016] QCA 92.…
R v Slater
[1997] QCA 42 Para 1

…oody [20] as illustrative of the range of sentences imposed for comparable offending. [15][1999] QCA 192. [16][2005] QCA 212. [17][2003] QCA 386. [18][1997] QCA 42. [19][2011] QCA 296. [20][2016] QCA 92.…
R v Vessey; ex parte A-G (Qld)
[1996] QCA 11 Para 2

…before he is eligible for parole than the offenders in those cases had to serve. [12][2004] QCA 309; (2004) 149 A Crim R 151. [13][2002] QCA 501. [14][1996] QCA 11; (1996) 86 A Crim R 290.…
Griffiths v The Queen
[1989] HCA 39 Para 7

…r that all of the sentences imposed be served concurrently, in order to reflect further the totality of the offending.[25] [25] Griffiths v The Queen (1989) 167 CLR 372 at 377 per Brennan and Dawson JJ; 393 per McHugh J. See also R v Nagy [2004] 1 Qd R 63; [2003] QCA 175 per Williams JA at [31]-[32]; Jerrard JA at [6…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
161B(3)(a)(i) 2 mentions (from Para 8)

CITATION:	R v Turner [2016] QCA 282
PARTIES:	R v TURNER, Raymond James (applicant)
FILE NO/S:	CA No 132 of 2016 DC No 75 of 2016 DC No 474 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich – Date of Sentence: 29 April 2016
DELIVERED ON:	4 November 2016
DELIVERED AT:	Brisbane
HEARING DATE:	4 October 2016
JUDGES:	Gotterson JA and Douglas and Boddice JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to a five-count indictment and a bench charge sheet alleging 14 summary offences – where the indictment included one count of dangerous operation of a motor vehicle causing grievous bodily harm while adversely affected by an intoxicating substance – where the applicant drove dangerously while under the influence of methylamphetamine, on bail, disqualified from driving, and with an overloaded vehicle – where the applicant was pursued by two police vehicles and avoided a tyre deflation device before colliding with a parked vehicle, resulting in three of his five passengers sustaining injuries which were sufficiently serious to amount to grievous bodily harm – where the applicant was sentenced to six years imprisonment for the dangerous operation offence which was declared a serious violent offence – where the applicant alleges the serious violent offence declaration renders the sentence manifestly excessive – whether the offence might properly be regarded as being beyond the norm – whether the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 161B(3)(a)(i) R v Balic[2005] QCA 212, considered R v Benjamin (2012) 224 A Crim R 40; [2012] QCA 188, cited R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206, cited R v Frost; ex parte Attorney-General (2004) 149 A Crim R 151; [2004] QCA 309, considered R v Hopper[2011] QCA 296, considered R v Ibrahim[2003] QCA 386, considered R v Lennon[1999] QCA 192, considered R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, cited R v Moody[2016] QCA 92, considered R v Pham (2016) 90 ALJR 13; [2015] HCA 39, applied R v Slater[1997] QCA 42, considered R v Vessey (1996) 86 A Crim R 290; [1996] QCA 11, considered R v Wilde; ex parte Attorney-General (Qld) (2002) 135 A Crim R 538; [2002] QCA 501, considered
COUNSEL:	The applicant appeared on his own behalf D R Kinsella for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent