R v You

Case [2011] QCA 279 11 October 2011

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SUPREME COURT OF QUEENSLAND

CITATION:

R v You [2011] QCA 279

PARTIES:

R
v
YOU, Jae Hoon
(applicant)

FILE NO/S:

CA No 198 of 2011
DC No 384 of 2011
DC No 982 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

11 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

27 September 2011

JUDGES:

Muir and Fraser 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 the applicant pleaded guilty to dangerous operation of a vehicle causing grievous bodily harm while adversely affected by alcohol – where the applicant was sentenced to four years imprisonment suspended after 12 months for an operational period of four years – where the applicant failed to negotiate a roundabout and collided with a brick retaining wall – where two passengers in the vehicle sustained life threatening injuries, and the applicant and a fourth passenger were also injured – where the applicant had no criminal history but had a traffic history including a speeding offence while on bail for the current offence – where the applicant might be deported as a result of the sentence – where the applicant demonstrated extreme remorse and had very impressive references – where the complainants maintained their friendship with the applicant after the accident – where the sentence imposed accorded with the submission made by the applicant’s counsel at the sentence hearing – whether the sentence imposed was manifestly excessive in all the circumstances

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the sentencing judge remarked that the very bottom of the range was four years suspended after serving 12 months imprisonment – where that range had been put forward by the prosecutor – where the applicant contended that he was sentenced upon a false premise because there were comparable decisions in which 12 months or a shorter period of actual custody had been imposed for similar or more culpable driving – whether the sentencing judge erred in the exercise of the sentencing discretion

Penalties and Sentences Act 1992 (Qld), s 9(3)

Cranssen v The King (1936) 55 CLR 509; [1936] HCA 42, cited
Director of Public Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28; [2010] NSWCCA 194, cited
Hili v The Queen (2010) 85 ALJR 195; [2010] HCA 45, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, considered
R v Auer; ex parte A-G (Qld) [2011] QCA 222, cited
R v Cusak; ex parte A-G (Qld) [2000] QCA 239, distinguished
R v Frame [2009] QCA 9, cited
R v Hoffman; ex parte Attorney-General…

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 You

Details

AGLC: R v You [2011] QCA 279
Case: [2011] QCA 279
Decision Date: 11 October 2011

CaseChat Overview and Summary

The appeal was brought by the applicant, who had pleaded guilty to the dangerous operation of a vehicle causing grievous bodily harm while adversely affected by alcohol. The case was heard in the Court of Appeal. The applicant was sentenced to a term of four years imprisonment, suspended after 12 months, for a total operational period of four years. The applicant's vehicle failed to negotiate a roundabout and collided with a brick retaining wall, resulting in life-threatening injuries to two passengers, and injuries to the applicant and a fourth passenger. The applicant had no criminal history but had a traffic history, including a speeding offence while on bail for the current offence. The applicant faced potential deportation as a result of the sentence and demonstrated extreme remorse, with impressive references. The complainants maintained their friendship with the applicant after the accident. The sentence imposed aligned with the submission made by the applicant's counsel at the sentencing hearing.

The central legal issue was whether the sentence imposed was manifestly excessive in all the circumstances. Additionally, the applicant argued that the sentencing judge erred in exercising the sentencing discretion by acting on a false premise. The applicant contended that comparable decisions had imposed 12 months or a shorter period of actual custody for similar or more culpable driving. The applicant's counsel argued that the sentencing judge remarked that the very bottom of the range was four years suspended after serving 12 months imprisonment, a range that had been put forward by the prosecutor. The applicant's position was that the sentencing judge had relied on an incorrect principle in imposing the sentence.

The court of appeal found that the sentence imposed was not manifestly excessive. The court considered the severity of the injuries sustained by the victims, the applicant's level of culpability, and the principles of sentencing for dangerous driving offences. The court found that the sentence was proportionate to the gravity of the offence and the need for general and specific deterrence. The court also found that the sentencing judge had not acted on a wrong principle. The court noted that the sentencing judge had considered the range of sentences proposed by the prosecutor and the applicant's counsel, and had exercised their discretion in imposing the sentence. The court concluded that the sentencing judge had not erred in the exercise of the sentencing discretion.

The court refused the application for leave to appeal against the sentence. The court found that the sentence imposed was not manifestly excessive and that the sentencing judge had not acted on a wrong principle. The applicant's appeal against the sentence was dismissed.

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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Citations

R v You [2011] QCA 279

Most Recent Citation

R v Miller [2012] QCA 168

Cases Citing This Decision

R v Miller [2012] QCA 168
Citation 1 (Para 1)

…operly constrained the exercise of his sentencing discretion.[3] [3] The applicant’s argument is similar to that unsuccessfully raised in R v You [2011] QCA 279.…

See all citing cases →

Cases Cited

R v Auer; ex parte [2011] QCA 222
Citation 1 (Para 1)

…97) 98 A Crim R 177; [1997] QCA 377. [5]SL No 151 of 1997. [6][2000] QCA 239. [7][2002] QCA 439. [8][2009] QCA 35. [9] R v Auer; ex parte A-G (Qld) [2011] QCA 222 at [39]. [10][2003] QCA 417. [11][2004] QCA 467. [12][2009] QCA 69. [13](2005) 154 A Crim R 30; [2005] QCA 90.…
R v Johnson [2011] QCA 78
Citation 2 (Para 1)

…roken pelvis and broken left arm. That complainant had a slow and painful rehabilitation, and was left with an extensive disability. [1][2011] QCA 78.…
Hili v The Queen [2010] HCA 45
Citation 3

…ons (Cth) v De La Rosa (2010) 243 FLR 28; [2010] NSWCCA 194, cited Hili v The Queen (2010) 85 ALJR 195; [2010] HCA 45, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, considered R v Auer; ex parte A-G (Qld) [2011] QCA 222, cited R v Cusak; ex parte A-G (Qld) [2000] QCA 239, distinguished R v Frame [2009…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 4

…55 CLR 509; [1936] HCA 42, cited Director of Public Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28; [2010] NSWCCA 194, cited Hili v The Queen (2010) 85 ALJR 195; [2010] HCA 45, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, considered R v Auer; ex parte A-G (Qld) [2011] QCA 222, cited R v Cusak; ex par…
R v Blackaby [2010] QCA 84
Citation 5 (Para 1)

…2010) 85 ALJR 195 at 206 - 207 [54] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. [17][2007] QCA 25. [18][2010] QCA 84.…
R v Lasrado [2009] QCA 69
Citation 6 (Para 1)

…QCA 239. [7][2002] QCA 439. [8][2009] QCA 35. [9] R v Auer; ex parte A-G (Qld) [2011] QCA 222 at [39]. [10][2003] QCA 417. [11][2004] QCA 467. [12][2009] QCA 69. [13](2005) 154 A Crim R 30; [2005] QCA 90.…
R v Kirby; Ex parte A-G (Qld) [2009] QCA 35
Citation 7 (Para 1)

…rm. [2][1996] QCA 164. [3][1996] QCA 347. [4](1997) 98 A Crim R 177; [1997] QCA 377. [5]SL No 151 of 1997. [6][2000] QCA 239. [7][2002] QCA 439. [8][2009] QCA 35. [9] R v Auer; ex parte A-G (Qld) [2011] QCA 222 at [39]. [10][2003] QCA 417. [11][2004] QCA 467. [12][2009] QCA 69. [13](2005) 154 A Crim R 30; [2005]…
R v Frame [2009] QCA 9
Citation 8 (Para 1)

…n this respect is that the sentence accorded with the submission made by the applicant’s counsel at the sentence hearing.[14] [14]See R v Frame [2009] QCA 9.…
R v Saltmarsh [2007] QCA 25
Citation 9 (Para 1)

…Hili v The Queen (2010) 85 ALJR 195 at 206 - 207 [54] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. [17][2007] QCA 25. [18][2010] QCA 84.…
R v Tabakovic [2005] QCA 90
Citation 10 (Para 1)

…35. [9] R v Auer; ex parte A-G (Qld) [2011] QCA 222 at [39]. [10][2003] QCA 417. [11][2004] QCA 467. [12][2009] QCA 69. [13](2005) 154 A Crim R 30; [2005] QCA 90.…
R v Robinson [2004] QCA 467
Citation 11 (Para 1)

…1 of 1997. [6][2000] QCA 239. [7][2002] QCA 439. [8][2009] QCA 35. [9] R v Auer; ex parte A-G (Qld) [2011] QCA 222 at [39]. [10][2003] QCA 417. [11][2004] QCA 467. [12][2009] QCA 69. [13](2005) 154 A Crim R 30; [2005] QCA 90.…
R v Quinn [2003] QCA 417
Citation 12 (Para 1)

…QCA 377. [5]SL No 151 of 1997. [6][2000] QCA 239. [7][2002] QCA 439. [8][2009] QCA 35. [9] R v Auer; ex parte A-G (Qld) [2011] QCA 222 at [39]. [10][2003] QCA 417. [11][2004] QCA 467. [12][2009] QCA 69. [13](2005) 154 A Crim R 30; [2005] QCA 90.…
R v McGuire [2002] QCA 439
Citation 13 (Para 1)

…grievous bodily harm. [2][1996] QCA 164. [3][1996] QCA 347. [4](1997) 98 A Crim R 177; [1997] QCA 377. [5]SL No 151 of 1997. [6][2000] QCA 239. [7][2002] QCA 439. [8][2009] QCA 35. [9] R v Auer; ex parte A-G (Qld) [2011] QCA 222 at [39]. [10][2003] QCA 417. [11][2004] QCA 467. [12][2009] QCA 69. [13](2005) 154 A…
R v Cusak; ex parte A-G (Qld) [2000] QCA 239
Citation 14 (Para 1)

…one person suffered grievous bodily harm. [2][1996] QCA 164. [3][1996] QCA 347. [4](1997) 98 A Crim R 177; [1997] QCA 377. [5]SL No 151 of 1997. [6][2000] QCA 239. [7][2002] QCA 439. [8][2009] QCA 35. [9] R v Auer; ex parte A-G (Qld) [2011] QCA 222 at [39]. [10][2003] QCA 417. [11][2004] QCA 467. [12][2009] QCA 6…
R v Hoffman; ex parte Attorney-General of Queensland [1997] QCA 377
Citation 15 (Para 1)

…lty on an ex officio indictment and only one person suffered grievous bodily harm. [2][1996] QCA 164. [3][1996] QCA 347. [4](1997) 98 A Crim R 177; [1997] QCA 377. [5]SL No 151 of 1997. [6][2000] QCA 239. [7][2002] QCA 439. [8][2009] QCA 35. [9] R v Auer; ex parte A-G (Qld) [2011] QCA 222 at [39]. [10][2003] QCA…
R v Wurzbacher [1996] QCA 347
Citation 16 (Para 1)

…R v Tabakovic [13] the offender pleaded guilty on an ex officio indictment and only one person suffered grievous bodily harm. [2][1996] QCA 164. [3][1996] QCA 347. [4](1997) 98 A Crim R 177; [1997] QCA 377. [5]SL No 151 of 1997. [6][2000] QCA 239. [7][2002] QCA 439. [8][2009] QCA 35. [9] R v Auer; ex parte A-G (Q…
R v Shedlock and Attorney-General of Queensland [1996] QCA 164
Citation 17 (Para 1)

…s in this case. In R v Tabakovic [13] the offender pleaded guilty on an ex officio indictment and only one person suffered grievous bodily harm. [2][1996] QCA 164. [3][1996] QCA 347. [4](1997) 98 A Crim R 177; [1997] QCA 377. [5]SL No 151 of 1997. [6][2000] QCA 239. [7][2002] QCA 439. [8][2009] QCA 35. [9] R v Au…
Cranssen v the King [1936] HCA 42
Citation 18

…encing discretion Penalties and Sentences Act 1992 (Qld), s 9(3) Cranssen v The King (1936) 55 CLR 509; [1936] HCA 42, cited Director of Public Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28; [2010] NSWCCA 194, cited Hili v The Queen (2010) 85 ALJR 195; [2010] HCA 45, cited House v The King (1936) 55 CLR 499;…
House v R [1936] HCA 40
Citation 19

…94, cited Hili v The Queen (2010) 85 ALJR 195; [2010] HCA 45, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, considered R v Auer; ex parte A-G (Qld) [2011] QCA 222, cited R v Cusak; ex parte A-G (Qld) [2000] QCA 239, distinguished R v Frame [2009] QCA 9, cited R v Hoffman; ex parte Attorney-General of…
House v The King 63 WN 176
Citation 20

…a (2010) 243 FLR 28; [2010] NSWCCA 194, cited Hili v The Queen (2010) 85 ALJR 195; [2010] HCA 45, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, considered R v Auer; ex parte A-G (Qld) [2011] QCA 222, cited R v Cusak; ex parte A-G (Qld) [2000] QCA 239, distinguished R v Frame [2009] QCA 9, cited R v Hoffman; ex…

Legislation Cited

Penalties and Sentences Act 1992 (Qld) 9(3)
2 mentions (from Para 1)
Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 (Qld)
1 mention (from Para 1)
Police Powers and Responsibilities Act 2000 (Qld)
1 mention (from Para 1)

CITATION:	R v You [2011] QCA 279
PARTIES:	R v YOU, Jae Hoon (applicant)
FILE NO/S:	CA No 198 of 2011 DC No 384 of 2011 DC No 982 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	11 October 2011
DELIVERED AT:	Brisbane
HEARING DATE:	27 September 2011
JUDGES:	Muir and Fraser 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 the applicant pleaded guilty to dangerous operation of a vehicle causing grievous bodily harm while adversely affected by alcohol – where the applicant was sentenced to four years imprisonment suspended after 12 months for an operational period of four years – where the applicant failed to negotiate a roundabout and collided with a brick retaining wall – where two passengers in the vehicle sustained life threatening injuries, and the applicant and a fourth passenger were also injured – where the applicant had no criminal history but had a traffic history including a speeding offence while on bail for the current offence – where the applicant might be deported as a result of the sentence – where the applicant demonstrated extreme remorse and had very impressive references – where the complainants maintained their friendship with the applicant after the accident – where the sentence imposed accorded with the submission made by the applicant’s counsel at the sentence hearing – whether the sentence imposed was manifestly excessive in all the circumstances CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the sentencing judge remarked that the very bottom of the range was four years suspended after serving 12 months imprisonment – where that range had been put forward by the prosecutor – where the applicant contended that he was sentenced upon a false premise because there were comparable decisions in which 12 months or a shorter period of actual custody had been imposed for similar or more culpable driving – whether the sentencing judge erred in the exercise of the sentencing discretion Penalties and Sentences Act 1992 (Qld), s 9(3) Cranssen v The King (1936) 55 CLR 509; [1936] HCA 42, cited Director of Public Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28; [2010] NSWCCA 194, cited Hili v The Queen (2010) 85 ALJR 195; [2010] HCA 45, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, considered R v Auer; ex parte A-G (Qld) [2011] QCA 222, cited R v Cusak; ex parte A-G (Qld) [2000] QCA 239, distinguished R v Frame [2009] QCA 9, cited R v Hoffman; ex parte Attorney-General…