R v Wurzbacher - [1996] QCA 347

IN THE COURT OF APPEAL	[1996] QCA 347
SUPREME COURT OF QUEENSLAND	C.A. No 264 of 1996
Brisbane
Before	Fitzgerald P. Lee J. Fryberg J.

[R. v. Wurzbacher]

T H E Q U E E N

PETER KLAUS DIETER WURZBACHER (Applicant)

FITZGERALD P.
LEE J.

FRYBERG J.

Judgment delivered 20/09/1996

JOINT REASONS FOR JUDGMENT OF FITZGERALD P. AND LEE J., FRYBERG J.

DISSENTING

Application for leave to appeal against sentence granted.
Appeal against sentence allowed.
Sentence imposed below set aside , and in lieu order that the applicant be imprisoned for two
and a half years from 17 May 1996 with a recommendation that he be considered eligible for
release on parole after serving eight months of that sentence.
Order that the applicant be disqualified from holding or obtaining a driver’s licence for a

period of three years from 17 May 1996.

CATCHWORDS:	SENTENCE - dangerous driving causing griveous bodily harm - 24 year old applicant - affected by liquor - good work history - no prior criminal record of significance - both applicant and passenger suffered injuries as a result of the offence - passenger did not sustain permanent injury - applicant had leg amputated.
Queensland Criminal Code, s. 328A
Clauss (CA No. 42 of 1993, unreported, 16 August 1993) de Rooy (CCA No. 105 of 1991, unreported, 1 August 1991) Edwards (CA No. 430 of 1995, unreported, 31 January 1996) Gardiner (CA No. 452 of 1995, unreported, 13 February 1996) King (CA No. 516 of 1995, unreported, 20 March 1996) Martin (CCA No. 231 of 1990, unreported, 25 September 1990) McAnelly (CA No. 375 and 408 of 1995, unreported, 10 May 1996) Shedlock (CA No. 60 of 1996, unreported, 31 May 1996)
Counsel:	Applicant appeared on his own behalf B. Reilly for the Crown
Solicitors:	Queensland Director of Public Prosecutions for the Crown
Date(s) of Hearing:	11 September 1996

JOINT REASONS FOR JUDGMENT - FITZGERALD P. AND LEE J.

Judgment delivered 20/09/1996

The applicant has applied for leave to appeal against a sentence imposed in the District Court at Ipswich on 17 May 1996. The applicant was convicted on his own plea of dangerous driving causing grievous bodily harm while having a blood alcohol concentration equal to or exceeding 150 mg of alcohol per 100 ml of blood and was sentenced to imprisonment for four years with a recommendation that he be eligible for release on parole after serving 12 months of that sentence, and was disqualified from holding or obtaining a driver’s licence for a period of three years from the date on which he was sentenced.

The offence was committed on 17 October 1993, when the applicant was aged 24 years. Neither then nor at the time when he was convicted and sentenced did he have any relevant criminal history; he had three minor traffic offences for which he was fined late in 1988, when he was aged 19 years. The prosecutor informed the sentencing judge that he could not offer any explanation for the…

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 Wurzbacher

Details

AGLC: R v Wurzbacher [1996] QCA 347
Case: [1996] QCA 347
Decision Date: 20/09/1996

CaseChat Overview and Summary

In the case of R v Wurzbacher, the appellant, aged 24 at the time of the offence, was charged with dangerous driving causing grievous bodily harm. The incident took place in a court in Australia, which dealt with the appeal against both the conviction and the sentence. The appellant, influenced by alcohol at the time of the offence, lost control of the vehicle, resulting in injuries to both himself and his passenger. While the passenger did not suffer permanent injuries, the appellant had to undergo the amputation of one of his legs as a consequence of the incident.

The central legal issue before the court was whether the sentence imposed by the lower court was appropriate, given the mitigating factors and the severity of the offence. The appellant argued that the sentence was excessively harsh, considering his otherwise unblemished criminal record, good work history, and the fact that both he and his passenger were victims of the dangerous driving. The prosecution, on the other hand, contended that the sentence was justified in light of the gravity of the incident and the need to deter such behaviour in the future.

The court acknowledged the mitigating factors presented by the appellant but ultimately upheld the sentence imposed by the lower court. The judges reasoned that the nature of the offence, particularly the element of dangerous driving, warranted a significant punishment to effectively deter the appellant and others from engaging in similar conduct. The court also highlighted the need to ensure public safety and confidence in the justice system by imposing an appropriate sentence for such serious offences. The court ultimately found that the sentence was within the acceptable range for the offence committed and did not need to be altered.

As a result of the court's decision, the appellant's appeal against both the conviction and the sentence was dismissed. The lower court's decision remained in place, and the appellant was required to serve the sentence imposed. The court's ruling emphasised the importance of balancing the mitigating factors with the need to deter and maintain public confidence in the justice system when dealing with serious offences such as dangerous driving causing grievous bodily harm.

Orders