R v Whye - [1997] QCA 320

[1997] QCA 320

COURT OF APPEAL
McPHERSON JA
PINCUS JA

BYRNE J

CA No 234 of 1997
THE QUEEN
v.

ANTHONY JAMES ERNEST WHYE

Applicant

BRISBANE
..DATE 17/07/97
170797 T5/JAP/23 M/T COA 149/97
PINCUS JA: This is an application for leave to appeal against a
sentence imposed in the District Court. The applicant, 29 years
of age, was convicted of an offence committed in March last year
on a plea of guilty. He was charged with having driven a motor
vehicle dangerously. Three circumstances were charged as
aggravating the offence. The plea was guilty and the sentence
five years imprisonment with a recommendation for parole after
two years; there was an absolute disqualification from driving.

It is complained, on behalf of the applicant, that the sentence

is manifestly excessive.

The charge alleged the matters mentioned in sections 328A(2)(a) and 328A(3)(b) of the Criminal Code. Because of the former the maximum penalty was five years and because of the latter the Judge was obliged to impose imprisonment as a penalty. The indictment also alleged that the concentration of alcohol exceeded 150 milligrams per 100 millilitres of blood, a matter which is made relevant by section 328A(4)(b), but was not appropriately included in indictment; it would have been properly charged only if the offence alleged had been one of causing death or grievous bodily harm.

The applicant had four times been convicted of driving under the influence of alcohol. Those offences occurred in 1987, 1988, 1991 and 1993. As to the last he was also convicted of driving without a licence. In addition, there are in his record a number of lesser driving offences, speeding and the like. I mentioned that the offence now in question, dangerous driving, was committed in March 1996. In the following month the applicant committed further offences, being an aggravated 170797 T5/JAP/23 M/T COA 149/97

assault and drug offences, but one may infer from the penalties imposed that these were not regarded as being particularly heinous.

Undoubtedly the offence in question was a bad example of dangerous driving, but fortunately no one was injured. Two police constables were performing radar duties on Mt Cotton Road about 9.55 p.m. on 21 March 1996, which was a Thursday, when the applicant approached, driving at a speed recorded at 111 km/h, well in excess of the 80 km/h speed limit in the area. One constable, wearing a reflective jacket and carrying a torch, went to the middle of the applicant's lane to intercept him. He indicated to the approaching vehicle, driven by the applicant, to pull over, but it accelerated directly towards where he was standing. The constable just managed to jump out of the way. The other constable also tried to wave the vehicle down; it passed close to him and knocked his torch out of his hand. Then there was a chase; the police car got up to 190 km/h. At one stage the applicant's vehicle overtook another car at a speed between 160 and 180 km/h, by…

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 Whye

Details

AGLC: R v Whye [1997] QCA 320
Case: [1997] QCA 320
Decision Date: 17/07/1997

CaseChat Overview and Summary

In the Court of Appeal, the case of R v Whye was heard, where the applicant, Anthony James Ernest Whye, sought leave to appeal against his sentence for dangerous driving. The applicant, aged 29 at the time of the offence, was convicted on a plea of guilty of driving dangerously under circumstances that aggravated the offence. The sentence imposed was five years imprisonment with a recommendation for parole after two years, and an absolute disqualification from driving. The applicant argued that the sentence was manifestly excessive.

The legal issues in the case centred around the severity of the sentence in relation to the nature of the offence and the applicant's prior criminal history. The court needed to consider whether the sentence was appropriate given the maximum penalty for the offence, the mitigating factors presented, and the comparison with similar cases.

The court deliberated on the maximum penalty of five years for the offence, considering the statutory obligations and the nature of the dangerous driving. The court noted that the applicant had a history of drink driving offences and had previously avoided prison sentences. Despite the gravity of the offence, the court found that the sentence imposed was excessive. The court compared the case with other similar instances where the offender drove at police officers and concluded that while the applicant's actions were dangerous, they did not warrant the maximum penalty. The court found the sentence to be disproportionate considering the mitigating factors, such as the applicant's plea of guilty and the relatively deserted roads at the time of the offence.

The court allowed the application for leave to appeal and substituted the sentence with three years imprisonment, with no recommendation for early parole. The court emphasized the importance of public safety in relation to the applicant's disqualification from driving. The order was set as stated by Mr Justice Pincus.

Orders