R v Williams - [2020] QCA 46

SUPREME COURT OF QUEENSLAND

CITATION:

R v Williams [2020] QCA 46

PARTIES:

R
v
WILLIAMS, Connie-Lee Rose
(applicant)

FILE NO/S:

CA No 71 of 2019
DC No 10 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Bundaberg – Date of Sentence: 28 February 2019 (Moynihan QC DCJ)

DELIVERED ON:

17 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

5 February 2020

JUDGES:

Sofronoff P and McMurdo JA and Boddice J

ORDER:

The application for leave to appeal be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of dangerous operation of a vehicle, causing death while adversely affected by an intoxicating substance and excessively speeding – where the applicant was sentenced to nine years’ imprisonment with a declaration that she had been convicted of a serious violent offence – where the applicant applies for leave to appeal the sentence on the ground that the consequences of the declaration of a serious violent offence rendered the sentence manifestly excessive – where the applicant engaged in a protracted course of dangerous driving causing the death of two people – where the applicant had no criminal history – whether the sentence was manifestly excessive

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

R v Henderson; Ex parte Attorney-General Queensland[2013] QCA 63, cited
R v Moody [2016] QCA 92, cited
R v Thomas[2015] QCA 20, cited
R v Tout[2012] QCA 296, cited

COUNSEL:

D A Holliday for the applicant
J D Finch for the respondent

SOLICITORS:

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

SOFRONOFF P: I agree with Boddice J.
McMURDO JA: I agree with Boddice J.
BODDICE J: On 28 February 2019, the applicant pleaded guilty to one count of dangerous operation of a vehicle, causing death whilst adversely affected by an intoxicating substance and excessively speeding.
On 28 February 2019, the applicant was sentenced to imprisonment for nine years. It was declared she had been convicted of a serious violent offence, with the consequence that 80 per cent of that nine year term was required to be served before eligibility for parole.[1]
[1]Section 161B(3) of the Penalties and Sentences Act 1992 (Qld).
The applicant applies for leave to appeal her sentence. The sole ground of appeal is that the consequences of the declaration she had been convicted of a serious violent offence rendered the nine year sentence manifestly excessive in all the circumstances.
Background
The applicant was born on 2 April 1984. She was aged 33 years at the time of the offence and 34 years at sentence. She had a limited traffic history and no criminal history.
Offence
On 20 September 2017, the applicant was driving a motor vehicle on the Bruce Highway, north of Gin Gin. The vehicle contained two passengers, the applicant’s husband, aged 41 years, and the applicant’s son, aged five…

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 Williams

Details

AGLC: R v Williams [2020] QCA 46
Case: [2020] QCA 46
Decision Date: 17 March 2020

CaseChat Overview and Summary

In the case of R v Williams, the applicant sought leave to appeal against her sentence. The applicant had pleaded guilty to dangerous operation of a vehicle, causing death while adversely affected by an intoxicating substance and excessively speeding. She was sentenced to nine years’ imprisonment with a declaration that she had been convicted of a serious violent offence. The applicant argued that the consequences of the declaration of a serious violent offence rendered the sentence manifestly excessive.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive in light of the declaration of a serious violent offence. The court considered whether the applicant had demonstrated that the sentence was so markedly different from sentences imposed in comparable authorities that there must have been a misapplication of principle, or that a conclusion could be reached that the sentence was unreasonable and plainly unjust.

The court concluded that the applicant had not established that the sentence imposed for a serious example of protracted dangerous driving, with catastrophic consequences, evidenced a misapplication of proper sentencing principles or resulted in a sentence which could be properly characterised as unreasonable or plainly unjust. The court found that the applicant's dangerous driving involved a protracted course of driving which placed other members of the public at significant risk and involved a deliberate course of driving at excessive speed on the wrong side of a busy highway in areas where there were present double white lines, at a time when the applicant was adversely affected by intoxicating substances and aware that each of her passengers were unrestrained in the motor vehicle. The court considered that a proper exercise of the sentencing discretion for such a serious occasion of dangerous driving would have included a sentence of imprisonment of at least ten years, with the consequence that there would have been an automatic declaration the applicant had been convicted of a serious violent offence. The court held that the imposition of a sentence of nine years’ imprisonment, with a declaration the applicant had been convicted of a serious violent offence, was properly to be characterised as a sentence at the lower end of the sentences applicable to this serious offending and was neither unreasonable nor plainly unjust.

ORDERS:
The application for leave to appeal be refused.

Orders

Orders of the court

The application for leave to appeal be refused.

Background

Background to the litigation

The applicant applies for leave to appeal her sentence. The sole ground of appeal is that the consequences of the declaration she had been convicted of a serious violent offence rendered the nine year sentence manifestly excessive in all the circumstances.Background The applicant was born on 2 April 1984. She was aged 33 years at the time of the offence and 34 years at sentence. She had a limited traffic history and no criminal history.Offence On 20 September 2017, the applicant was driving a motor vehicle on the Bruce Highway, north of Gin Gin. The vehicle contained two passengers, the applicant’s husband, aged 41 years, and the applicant’s son, aged five years. At a time after 7.30 am on 20 September 2017, the motor vehicle being driven by the applicant left the roadway and impacted at high speed with a culvert and subsequently a tree. Both the applicant’s husband and son lost their lives. Each was ejected from the motor vehicle upon impact. Neither was wearing a seatbelt at the time of impact. An investigation of the collision established that the motor vehicle had failed to negotiate a sweeping curve and left the road at a minimum speed of 171 kilometres per hour. Immediately prior to leaving the roadway, the applicant was observed to engage in a protracted course of dangerous driving. Other road users had been required to take evasive actions to avoid a collision. At the time of the collision, the applicant was travelling upon a sealed bitumen road, divided by audible double continuous lines. The weather was fine and clear. The road surface was dry. Visibility was good. The motor vehicle was in satisfactory mechanical condition. A subsequent examination found no faults which would have contributed to the incident. The applicant, who was restrained by a seatbelt, sustained injuries as a consequence of the impact. Blood specimens taken from the applicant upon arrival at hospital revealed the presence of both amphetamines and methylamphetamine at levels likely to affect the applicant’s ability to safely drive a motor vehicle. A search of the motor vehicle located a clip seal bag containing 1.65 grams of pure methylamphetamine.Sentence hearing The applicant’s plea of guilty to the offence was entered on the basis that the applicant accepted she had deliberately engaged in a course of dangerous driving over a protracted period, which was hazardous to the safety of herself, her passengers and other road users. That dangerous driving included driving on the wrong side of the road, over double white lines, whilst excessively speeding and being significantly adversely affected by methylamphetamine, in circumstances where the applicant was aware that her passengers, including her young son, were not restrained by seatbelts. A victim impact statement was tendered at sentence from the father of the applicant’s husband. He spoke of the devastation caused by the loss of a son and grandson. A psychological report was tendered by defence counsel. That report noted that the applicant had been raised in a healthy, secure and encouraging family environment but that the applicant’s relationship with her late husband had been physically, mentally and emotionally abusive. There was also a history of alcohol and substance abuse.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The making of the declaration also fell within a sound exercise of the sentencing decision. The factors identified by the sentencing Judge were relevant to the exercise of that discretion. Having regard to those factors, there is no basis upon which to conclude that the exercise of the discretion to make that declaration miscarried or that the consequence of that declaration rendered the sentence imposed manifestly excessive.Conclusions The applicant has not established that the sentence imposed for a serious example of protracted dangerous driving, with catastrophic consequences, evidences a misapplication of proper sentencing principles or resulted in a sentence which can be properly characterised as unreasonable or plainly unjust.Orders I would order the application for leave to appeal be refused.

Ratio Decidendi

Legal Principle Established

The objective seriousness of the applicant’s offending was such that the sentence imposed cannot be said to be so unreasonable or plainly unjust that it is beyond a proper exercise of the sentencing discretion.Consideration The applicant does not contend the sentencing Judge made any specific error in imposing sentence. Accordingly, her contention that the sentence imposed was manifestly excessive will only be established if the applicant can demonstrate that the sentence was so markedly different from sentences imposed in comparable authorities that there must have been a misapplication of principle, or that a conclusion can be reached that the sentence is unreasonable and plainly unjust.[2][2]R v Tout [2012] QCA 296 at [8]. The applicant’s dangerous driving involved not only a protracted course of driving which placed other members of the public at significant risk. It involved a deliberate course of driving at excessive speed on the wrong side of a busy highway in areas where there were present double white lines, at a time when the applicant was adversely affected by intoxicating substances and aware that each of her passengers were unrestrained in the motor vehicle. Such a course of conduct was rightly described as involving an occasion of serious dangerous driving. A consideration of comparable authorities[3] supports a conclusion that a proper exercise of the sentencing discretion for such a serious occasion of dangerous driving would have included a sentence of imprisonment of at least ten years, with the consequence that there would have been an automatic declaration the applicant had been convicted of a serious violent offence.[3]R v Moody [2016] QCA 92; R v Henderson; Ex parte Attorney-General (Qld) [2013] QCA 63; and R v Thomas [2015] QCA 20. Whilst Henderson involved an offender with a much more extensive criminal and traffic history, who used the motor vehicle as a weapon, the engaging in a deliberate course of driving at excessive speed on the wrong side of the road for an extended period whilst adversely affected by illicit substances, is rightly to be characterised as an occasion of dangerous driving involving such serious conduct as to warrant a sentence of at least ten years’ imprisonment. Against that background, the imposition of a sentence of nine years’ imprisonment, with a declaration the applicant had been convicted of a serious violent offence, is properly to be characterised as a sentence at the lower end of the sentences applicable to this serious offending. Such a sentence properly reflected the consequences of a declaration that the applicant had been convicted of a serious violent offence. It was neither unreasonable nor plainly unjust. The making of the declaration also fell within a sound exercise of the sentencing decision. The factors identified by the sentencing Judge were relevant to the exercise of that discretion. Having regard to those factors, there is no basis upon which to conclude that the exercise of the discretion to make that declaration miscarried or that the consequence of that declaration rendered the sentence imposed manifestly excessive.Conclusions

CITATION:	R v Williams [2020] QCA 46
PARTIES:	R v WILLIAMS, Connie-Lee Rose (applicant)
FILE NO/S:	CA No 71 of 2019 DC No 10 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Bundaberg – Date of Sentence: 28 February 2019 (Moynihan QC DCJ)
DELIVERED ON:	17 March 2020
DELIVERED AT:	Brisbane
HEARING DATE:	5 February 2020
JUDGES:	Sofronoff P and McMurdo JA and Boddice J
ORDER:	The application for leave to appeal be refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of dangerous operation of a vehicle, causing death while adversely affected by an intoxicating substance and excessively speeding – where the applicant was sentenced to nine years’ imprisonment with a declaration that she had been convicted of a serious violent offence – where the applicant applies for leave to appeal the sentence on the ground that the consequences of the declaration of a serious violent offence rendered the sentence manifestly excessive – where the applicant engaged in a protracted course of dangerous driving causing the death of two people – where the applicant had no criminal history – whether the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 161B(3) R v Henderson; Ex parte Attorney-General Queensland[2013] QCA 63, cited R v Moody [2016] QCA 92, cited R v Thomas[2015] QCA 20, cited R v Tout[2012] QCA 296, cited
COUNSEL:	D A Holliday for the applicant J D Finch for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent