Court of Appeal

R v Hopper; Ex parte Attorney-General (Qld) [2014] QCA 108 ; [2015] 2 QdR 56 (13/0291) Fraser and Morrison JJA and Boddice J 16 May 2014

Full-text: QCA14-108.pdf

Catchwords

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – EXERCISE OF DISCRETION – GENERALLY – where the respondent pleaded guilty to dangerous driving causing death and grievous bodily harm – where the respondent was sentenced to two and a half years imprisonment wholly suspended for three years, and was disqualified from holding a driver’s licence for three years – where the trial judge considered that the circumstances of the offence and the respondent’s personal circumstances and youthfulness favoured a non-custodial sentence – where the Attorney-General argued a wholly suspended period of imprisonment was plainly unreasonable and unjust – consideration of the relevance of personal and general deterrence, the gravity of the consequences of the offence, and a subsequent traffic offence – whether the sentence was manifestly inadequate

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – OTHER MATTERS – where five months have passed since the respondent was sentenced to a wholly suspended term of imprisonment – where the respondent is psychologically vulnerable and has made substantial efforts toward rehabilitation – whether, if the sentence was manifestly inadequate, the Court should exercise its residual discretion not to return the respondent to custody

Summary Notes

Sentence Appeal by Attorney-General (Qld) – where the respondent pleaded guilty to dangerous driving causing death and grievous bodily harm – where the respondent was travelling towards Caboolture and was looking at a map on a mobile phone because she was not familiar with the road – where the respondent was sentenced to two and a half years imprisonment wholly suspended for three years, and was disqualified from holding a driver’s licence for three years – where the trial judge considered that the circumstances of the offence and the respondent’s personal circumstances and youthfulness favoured a non-custodial sentence – where the Attorney-General argued a wholly suspended period of imprisonment was plainly unreasonable and unjust – consideration of the relevance of personal and general deterrence, the gravity of the consequences of the offence, and a subsequent traffic offence – where the sentencing judge considered that general deterrence was of significance in this case because it was commonplace to see people using their phones as they were driving and the imposition of stern punishment for those who used their phones whilst driving and caused significant harm or property damage might perhaps lead to a reduction in the incidence of that unlawful conduct – where only five months after the accident in which one person died and another was grievously injured as a result of the respondent’s dangerous driving, she again looked at a maps application on a mobile phone whilst driving – where having regard to the relevance of personal deterrence (particularly in light of the respondent’s subsequent traffic offence), the importance of denouncing the respondent’s offence, and especially the importance of seeking to deter others from committing a similar offence, and notwithstanding the respondent’s youthfulness and other personal circumstances, the sentence was rendered impermissibly lenient by the absence of any period of actual custody – where the necessary period of actual custody might have been limited to about five months for driving this dangerously with consequences as serious as death of one person and grievous bodily harm of another the absence of any period of actual custody rendered the sentence manifestly inadequate – where five months have passed since the respondent was sentenced to a wholly suspended term of imprisonment – where the respondent is psychologically vulnerable and has made substantial efforts toward rehabilitation – whether, if the sentence was manifestly inadequate, the Court should exercise its residual discretion not to return the respondent to custody – where if the respondent had been given an appropriate custodial sentence, she might have served it in full and been released by the time this appeal was heard – where the factor of most significance militating against the exercise of the residual discretion is the desirability of correcting a sentence imposed in error which is insufficient to deter others from committing similar offences – where in all of the circumstances the desirability of correcting the sentence on appeal by imposing a relatively short period of actual custody does not justify the resulting interruption of the rehabilitation and reintegration into society upon which this youthful and psychologically vulnerable respondent has substantially embarked. Appeal dismissed.