R v Whiting - [2009] QCA 338

SUPREME COURT OF QUEENSLAND

CITATION:

R v Whiting [2009] QCA 338

PARTIES:

R
v
WHITING, Peter Cedric
(applicant)

FILE NO/S:

CA No 91 of 2009
DC No 406 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

3 November 2009

DELIVERED AT:

Brisbane

HEARING DATE:

26 October 2009

JUDGES:

Keane and Holmes JJA and McMeekin J
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 applicant pleaded guilty to one count of serious assault – where applicant sentenced to 12 months imprisonment to be served by way of intensive correction order – where applicant ordered to pay compensation – where applicant absolutely disqualified from holding or obtaining driver's licence – whether sentence manifestly excessive

Transport Operations (Road Use Management) Act 1995 (Qld), s 131

R v Dizo [2008] QCA 89, cited

COUNSEL:

The applicant appeared on his own behalf
M B Lehane for the respondent

SOLICITORS:

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

KEANE JA: On 24 July 2008 the applicant pleaded guilty to one count of serious assault. He was not sentenced until 13 March 2009. On that occasion he was sentenced to 12 months imprisonment to be served by way of an intensive correction order. He was ordered to pay compensation in the sum of $802. He was also disqualified from holding or obtaining a driver's licence absolutely.

The applicant seeks leave to appeal against the severity of his sentence on the ground "[t]hat in all of the circumstances, the sentence is manifestly excessive, particularly the disqualification from holding or obtaining a driver [sic] licence absolutely."

Circumstances of the offence

At approximately 7.00 am on 21 March 2007, the complainant, who was a 75 year old man, was driving his car along Kingsford Smith Drive towards the city for his regular morning swim. He was travelling in the far left lane at approximately 40 to 45 kilometres per hour.

The applicant, who was then 45 years old, was driving his truck closely behind the complainant's car. The complainant was annoyed by the applicant's close approach behind him, so he slowed down and made a rude gesture at the applicant.

The applicant overtook the complainant and then pulled back into the left hand lane in front of him. The applicant stopped at a set of lights shortly thereafter. He alighted from his truck and punched the complainant in the face through the complainant's open driver's side window. He punched the complainant several times landing at least four blows. He then walked back to his truck and drove off.

The complainant suffered bruising and swelling to his left eye. The complainant's spectacles were damaged. As is apparent from the complainant's victim impact…

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 Whiting

Details

AGLC: R v Whiting [2009] QCA 338
Case: [2009] QCA 338
Decision Date: 3 November 2009

CaseChat Overview and Summary

In the matter of the Queen versus Whiting, the appellant, a resident of New South Wales, challenged the sentence imposed by the District Court. Whiting had pleaded guilty to one count of serious assault, resulting in a sentence of 12 months imprisonment to be served by way of an intensive correction order. Additionally, Whiting was ordered to pay compensation and was absolutely disqualified from holding or obtaining a driver's licence. Whiting's contention was that the sentence was manifestly excessive.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive or inadequate, thereby justifying an appeal. Whiting argued that the sentence was disproportionate to the offence and did not adequately consider his personal circumstances and the mitigating factors present in the case. The court was required to determine if the sentence warranted interference under the provisions of the Criminal Appeal Act 1912 (NSW).

The court found that the sentence was neither manifestly excessive nor inadequate. It considered the seriousness of the offence, the need for deterrence, and the rehabilitative potential of the intensive correction order. The court also took into account the compensation ordered, as well as the disqualification from driving. It was determined that the sentence was within the appropriate range for the offence and that the mitigating factors had been sufficiently weighed by the sentencing judge. Consequently, the court dismissed the appeal and refused the application for leave to appeal against the sentence.

Orders

Orders of the court

Application for leave to appeal against sentence refused

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 Whiting [2009] QCA 338
PARTIES:	R v WHITING, Peter Cedric (applicant)
FILE NO/S:	CA No 91 of 2009 DC No 406 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	3 November 2009
DELIVERED AT:	Brisbane
HEARING DATE:	26 October 2009
JUDGES:	Keane and Holmes JJA and McMeekin J 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 applicant pleaded guilty to one count of serious assault – where applicant sentenced to 12 months imprisonment to be served by way of intensive correction order – where applicant ordered to pay compensation – where applicant absolutely disqualified from holding or obtaining driver's licence – whether sentence manifestly excessive Transport Operations (Road Use Management) Act 1995 (Qld), s 131 R v Dizo [2008] QCA 89, cited
COUNSEL:	The applicant appeared on his own behalf M B Lehane for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent