R v Vogiatzis - [2003] QCA 19

SUPREME COURT OF QUEENSLAND

CITATION:

R v Vogiatzis [2003] QCA 19

PARTIES:

R
v
VOGIATZIS, Israel Immunual
(applicant/appellant)

FILE NO/S:

CA No 441 of 2002
DC No 215 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Mackay

DELIVERED EX TEMPORE ON:

4 February 2003

DELIVERED AT:

Brisbane

HEARING DATE:

4 February 2003

JUDGES:

Davies and Williams JJA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.    Application for leave to appeal against sentence       granted.
2.    Appeal allowed.
3.    Set aside the orders imposed below and in lieu:
      (a)   record a conviction for the offence;
(b) impose a term of imprisonment of 12 months to be served by way of intensive correction order to contain the requirements set out in s 114 of the Penalties and Sentences Act 1992 (Qld);
      (c)   the applicant be disqualified from holding or   obtaining a driver's licence for a period of three          years.

CATCHWORDS:

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENDER - where applicant convicted of dangerous driving - where applicant had no previous criminal or traffic history - whether sentence was manifestly excessive

R v Hamilton [2000] QCA 286; CA No 75 of 2000, 21 July 2000, considered

COUNSEL:

A J Moynihan for applicant/appellant
R G Martin for respondent

SOLICITORS:

Legal Aid Queensland for applicant/appellant
Director of Public Prosecutions (Queensland) for respondent

DAVIES JA: On 4 December 2002 after a trial that day the applicant was convicted of dangerous operation of a motor vehicle. On the following day he was sentenced to 12 months imprisonment to be suspended after he had served two months with an operational period of three years. He was, in addition, disqualified from holding a driver's licence for three years. He seeks leave to appeal against that sentence.

At the time of the offence and conviction the appellant was a 17 year old school boy. He was due to resume his schooling in 12th grade this year. He has no other criminal convictions or any traffic convictions. There is nothing to indicate that, apart from the circumstance of this offence, he is other than a normal 17 year old school boy.

The applicant was observed by police travelling at 132 kilometres an hour in a 100 kilometre per hour zone. A police officer directed him to pull over. He failed to obey that direction and a police chase ensued. It is, perhaps, unsurprising how often such chases result in driving which is increasingly dangerous. That is what occurred here.

At one point towards the end of the police chase the applicant reached 210 kilometres an hour, by which time he had overtaken over double white lines endangering the occupants of a car travelling in the opposite direction. Fortunately, no one was injured.

The sentence imposed on the applicant by her Honour was not one…

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 Vogiatzis

Details

AGLC: R v Vogiatzis [2003] QCA 19
Case: [2003] QCA 19
Decision Date: 4 February 2003

CaseChat Overview and Summary

The applicant, Vogiatzis, was convicted of dangerous driving and sought leave to appeal against the sentence. The case was heard in the Court of Appeal in Queensland. The primary issue before the court was whether the sentence imposed on the applicant was manifestly excessive. The applicant had no prior criminal or traffic history and argued that the sentence was disproportionate to the nature and circumstances of the offence.

The court considered the principles of sentencing as outlined in R v Hamilton, which emphasised that the sentence must be proportionate to the gravity of the offence and the circumstances of the offender. The court found that the sentence imposed, which included imprisonment and disqualification from holding a driver's licence, was excessively harsh considering the applicant's lack of a criminal history and the nature of the offence. The court acknowledged the seriousness of dangerous driving but noted the importance of proportionality in sentencing.

As a result, the court granted the application for leave to appeal and allowed the appeal. The orders imposed were set aside, and in their place, the court recorded a conviction for the offence, imposed a term of imprisonment of 12 months to be served by way of an intensive correction order, and disqualified the applicant from holding or obtaining a driver's licence for three years. This decision reflects the court's commitment to ensuring that sentences are proportionate and take into account the individual circumstances of the offender.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Appeal allowed.

3. Set aside the orders imposed below and in lieu:

(a) record a conviction for the offence;

(b) impose a term of imprisonment of 12 months to be served by way of intensive correction order to contain the requirements set out in s 114 of the Penalties and Sentences Act 1992 (Qld);

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

Full text does not contain this section.

CITATION:	R v Vogiatzis [2003] QCA 19
PARTIES:	R v VOGIATZIS, Israel Immunual (applicant/appellant)
FILE NO/S:	CA No 441 of 2002 DC No 215 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Mackay
DELIVERED EX TEMPORE ON:	4 February 2003
DELIVERED AT:	Brisbane
HEARING DATE:	4 February 2003
JUDGES:	Davies and Williams JJA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal against sentence granted. 2. Appeal allowed. 3. Set aside the orders imposed below and in lieu: (a) record a conviction for the offence; (b) impose a term of imprisonment of 12 months to be served by way of intensive correction order to contain the requirements set out in s 114 of the Penalties and Sentences Act 1992 (Qld); (c) the applicant be disqualified from holding or obtaining a driver's licence for a period of three years.
CATCHWORDS:	CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENDER - where applicant convicted of dangerous driving - where applicant had no previous criminal or traffic history - whether sentence was manifestly excessive R v Hamilton [2000] QCA 286; CA No 75 of 2000, 21 July 2000, considered
COUNSEL:	A J Moynihan for applicant/appellant R G Martin for respondent
SOLICITORS:	Legal Aid Queensland for applicant/appellant Director of Public Prosecutions (Queensland) for respondent