The Queen v O'Brien - [1987] TASSC 47

A43/1987
List “A”

CITATION: The Queen v O'Brien [1987] TASSC 47; A43/1987

PARTIES:  THE QUEEN
  v
  O'BRIEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 46/1987
DELIVERED ON:  27 August 1987
DELIVERED AT:
HEARING DATE:
JUDGMENT OF:  Nettlefold, Underwood and Wright JJ

CATCHWORDS:

REPRESENTATION:

Counsel:
             Appellant:
             Respondent:
Solicitors:
             Appellant:
             Respondent:

Judgment Number: A43/1987
Number of paragraphs: 54

Serial No A46/1987
File No CCA 46/1987

THE QUEEN v O'BRIEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

NETTLEFOLD J
UNDERWOOD J
WRIGHT J

Orders of the Court:

Leave to appeal granted
Appeal against sentence allowed.
A sentence of 12 months imprisonment is substituted for the sentence of four months imprisonment.
The order disqualifying him from holding a licence to drive a motor vehicle for three years is confirmed.

Serial No A46/1987
File No CCA 46/1987

THE QUEEN v O'BRIEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

NETTLEFOLD J
27 August 1987

The facts are contained in the reasons for judgment of my learned brother Wright J which I have had the advantage of reading in draft. It will serve no useful purpose to set them out again.

The case involves a really wicked piece of driving. The principal facts which justify that description of it are:

(1)       He had a blood alcohol level of .209 per cent. Asked whether he was affected by the alcohol when he started the fatal journey he replied "Yes, yeah, that's when I stacked, yeah, I was pissed". Asked "By that do you mean that you were affected to an extent where it was possibly difficult for you to operate your car?" he replied "Yeah, I could operate the car alright, but I couldn't see too good. I reckon I'd go 20".
(2)       During the journey a police officer attempted to pull the respondent over because the officer noticed that the vehicle was not displaying tail lights The respondent later admitted that he saw the police vehicle and said "If they want me they'll have to catch me and I'll give them a go". He also made the following admission, "I took off up Mount Street flat out. When I got over the brow of the hill I lost it. I don't know what happened then".
(3)       In attempting to evade the police the respondent's vehicle went through a series of red lights in central Burnie, a total of five red lights en route to where the collision occurred. When he lost control of the vehicle in a shopping area his vehicle was travelling at a speed of approximately 140 kilometres per hour. The vehicle went sideways across the road, mounted the kerb, became airborne and struck a hydro pole breaking it off 1.25 metres above the base of it. The vehicle was almost cut in half. His passenger, a young girl, was thrown from the vehicle into the gutter and killed instantly.
(4)       The respondent admitted that he came over the crest of a hill, looked back and could not see 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 The Queen v O'Brien

Details

AGLC: The Queen v O'Brien [1987] TASSC 47
Case: [1987] TASSC 47
Decision Date: 27 August 1987

CaseChat Overview and Summary

The Court of Criminal Appeal was asked to review a sentence imposed on O'Brien, who had been convicted of manslaughter. The Crown sought leave to appeal against the sentence of four months imprisonment imposed on O'Brien, arguing that it was manifestly inadequate. The Court was required to decide whether the sentence was indeed manifestly inadequate and, if so, what an appropriate sentence would be. The Court considered the principles governing appellate review of sentences and noted that it should only interfere if the sentencing judge was in error in acting on a wrong principle or in misunderstanding or wrongly assessing some salient feature of the evidence. The Court also noted the importance of imposing a sentence that serves as a strong general deterrent not only to the individual involved but also to other potential offenders. The Court concluded that the sentencing judge had placed too much emphasis on the youth of the respondent and had failed to give sufficient weight to the need to impose a sentence which would have a deterrent effect. The Court allowed the appeal, quashed the original sentence, and substituted a sentence of 12 months imprisonment. The Court also confirmed the order disqualifying O'Brien from holding or obtaining a driver's licence for a period of three years.

Orders