Tschirpig v Martin - [2011] QDC 111

DISTRICT COURT OF QUEENSLAND

CITATION:

Tschirpig v Martin [2011] QDC 111

PARTIES:

AAIDIN GRAEMME TSCHIRPIG
(Appellant)
v
ANDREW J. MARTIN
(Respondent)

FILE NO/S:

323 of 2011

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Holland Park

DELIVERED ON:

6 June 2011 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

6 June 2011

JUDGE:

Irwin DCJ

ORDER:

1. Appeal against sentence allowed.

2. The sentence imposed at first instance is set aside.

3. The appellant is sentenced to pay a fine of $700 in default 7 days imprisonment, with the proper officer of the court to give particulars to the State Penalties Enforcement Registry for registration. A conviction is not recorded.

4. The appellant is disqualified from holding or obtaining a driver licence for a period commencing on 6 January 2011 to 6 June 2011.

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE - where the appellant was convicted on his plea of guilty of driving without due care and attention - where he was sentenced to a fine of $1000 in default 10 days imprisonment, disqualified from holding or obtaining a driver licence for 12 months and a conviction was recorded - where he drove a vehicle involved in a three vehicle collision on a two lane arterial road - where this vehicle crossed the centre line and side swiped another vehicle travelling in the opposite direction - where as a result the second vehicle collided with the third vehicle - where the prosecutor said that the driver of the third vehicle suffered extensive injuries to an arm resulting in the loss of his elbow joint, underwent a number of major surgeries and was unable to work 13 months later - where the appellant was 18 years of age - where he had no traffic or criminal history - where he had not been speeding, affected by alcohol or using his CD player/radio at the time - where a roadside breath test was negative - where he was sentenced on the basis of a momentary loss of concentration - where he had committed no further offences prior to sentencing - where he entered a timely plea of guilty - where he had not driven for a period of approximately five months following his sentence - where it was conceded by the respondent that the length of the disqualification was arguably too great - whether in circumstances where the appellant was charged with driving without due care and attention and not with any offence of which causing injury was an element the magistrate had placed too much weight on the injury caused by his driving and insufficient weight on the nature of the driving charged and the factors in mitigation - whether the sentence was manifestly excessive.

Justices Act 1896 (Qld), s 222(1), s 222(2)(c)

Penalties and Sentences Act 1992 (Qld), s 9(2)(a)(i),
s 9(2)(e), s 11

Dinsdale v The Queen (2000) 202 CLR 321, cited

House…

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 Tschirpig v Martin

Details

AGLC: Tschirpig v Martin [2011] QDC 111
Case: [2011] QDC 111
Decision Date: 6 June 2011 (ex tempore)

CaseChat Overview and Summary

The case of Tschirpig v Martin involved an appeal against the sentence imposed on the appellant for driving without due care and attention. The appellant was involved in a three-vehicle collision, which resulted in serious injury to the driver of the third vehicle. The appellant was sentenced to a $1000 fine, 10 days imprisonment, a 12-month disqualification from holding or obtaining a driver's license, and a recorded conviction. The appellant appealed the sentence, arguing that it was excessive and inadequate in light of the circumstances of the case. The court was required to determine whether the sentence was manifestly excessive and whether the magistrate had placed too much emphasis on the injuries caused by the appellant's driving and insufficient emphasis on the nature of the driving charged and the mitigating factors.

The court considered the nature of the driving charged and the mitigating factors, such as the appellant's age, lack of criminal history, and the fact that he had not driven for approximately five months following his sentence. The court also noted that the prosecutor conceded that the length of the disqualification was arguably too great. The court held that the sentence was manifestly excessive and inadequate, as the magistrate had placed too much emphasis on the injuries caused by the appellant's driving and insufficient emphasis on the nature of the driving charged and the mitigating factors. The court also noted that the appellant was charged with driving without due care and attention, not with any offence of which causing injury was an element.

The court set aside the sentence imposed at first instance and sentenced the appellant to pay a $700 fine, 7 days imprisonment, with the proper officer of the court to give particulars to the State Penalties Enforcement Registry for registration. The court also disqualified the appellant from holding or obtaining a driver's license for a period commencing on 6 January 2011 to 6 June 2011. The court held that the sentence was manifestly excessive and inadequate, and that the magistrate had placed too much emphasis on the injuries caused by the appellant's driving and insufficient emphasis on the nature of the driving charged and the mitigating factors. The court also held that the length of the disqualification was arguably too great.

Orders

Orders of the court

1. Appeal against sentence allowed.

2. The sentence imposed at first instance is set aside.

3. The appellant is sentenced to pay a fine of $700 in default 7 days imprisonment, with the proper officer of the court to give particulars to the State Penalties Enforcement Registry for registration. A conviction is not recorded.

4. The appellant is disqualified from holding or obtaining a driver licence for a period commencing on 6 January 2011 to 6 June 2011.

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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CITATION:	Tschirpig v Martin [2011] QDC 111
PARTIES:	AAIDIN GRAEMME TSCHIRPIG (Appellant) v ANDREW J. MARTIN (Respondent)
FILE NO/S:	323 of 2011
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Holland Park
DELIVERED ON:	6 June 2011 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	6 June 2011
JUDGE:	Irwin DCJ
ORDER:	1. Appeal against sentence allowed. 2. The sentence imposed at first instance is set aside. 3. The appellant is sentenced to pay a fine of $700 in default 7 days imprisonment, with the proper officer of the court to give particulars to the State Penalties Enforcement Registry for registration. A conviction is not recorded. 4. The appellant is disqualified from holding or obtaining a driver licence for a period commencing on 6 January 2011 to 6 June 2011.
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE - where the appellant was convicted on his plea of guilty of driving without due care and attention - where he was sentenced to a fine of $1000 in default 10 days imprisonment, disqualified from holding or obtaining a driver licence for 12 months and a conviction was recorded - where he drove a vehicle involved in a three vehicle collision on a two lane arterial road - where this vehicle crossed the centre line and side swiped another vehicle travelling in the opposite direction - where as a result the second vehicle collided with the third vehicle - where the prosecutor said that the driver of the third vehicle suffered extensive injuries to an arm resulting in the loss of his elbow joint, underwent a number of major surgeries and was unable to work 13 months later - where the appellant was 18 years of age - where he had no traffic or criminal history - where he had not been speeding, affected by alcohol or using his CD player/radio at the time - where a roadside breath test was negative - where he was sentenced on the basis of a momentary loss of concentration - where he had committed no further offences prior to sentencing - where he entered a timely plea of guilty - where he had not driven for a period of approximately five months following his sentence - where it was conceded by the respondent that the length of the disqualification was arguably too great - whether in circumstances where the appellant was charged with driving without due care and attention and not with any offence of which causing injury was an element the magistrate had placed too much weight on the injury caused by his driving and insufficient weight on the nature of the driving charged and the factors in mitigation - whether the sentence was manifestly excessive. Justices Act 1896 (Qld), s 222(1), s 222(2)(c) Penalties and Sentences Act 1992 (Qld), s 9(2)(a)(i), s 9(2)(e), s 11 Dinsdale v The Queen (2000) 202 CLR 321, cited House…