Wu v Queensland Police Service
[2012] QDC 102
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- Unreported Judgment
- Wu v Queensland Police Service[2012] QDC 102
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Wu v Queensland Police Service[2012] QDC 102
Wu v Queensland Police Service[2012] QDC 102
DISTRICT COURT OF QUEENSLAND
CITATION: | Wu v Queensland Police Service [2012] QDC 102 |
PARTIES: | GANG WU (Applicant) V QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO/S: | 65/11 and 66/11 |
DIVISION: | Appellate |
PROCEEDING: | Sentence appeal |
ORIGINATING COURT: | Magistrates Court, Beenleigh |
DELIVERED ON: | 8 May 2012 |
DELIVERED AT: | Beenleigh |
HEARING DATE: | 25 November 2011 |
JUDGE: | Dearden DCJ |
ORDER: | Application for extension of time for filing a notice of appeal refused. Appeal against decision of magistrate refused. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – OTHER MATTERS Whether sentence manifestly excessive – where single licence disqualification period for three separate offences – whether sentencing magistrate utilised s. 187 Penalties and Sentences Act – whether the applicant suffered a miscarriage of justice justifying a reopening of the sentence – where sentencing magistrate fell into multiple sentencing errors – where no miscarriage of justice in denying extension of time for filing a notice of appeal |
LEGISLATION: | Transport Operations (Road Use Management) Act 1995 (Qld) Justices Act 1886 (Qld) Penalties and Sentences Act 1992 (Qld) |
CASES: | R v Croft [1999] 1 Qd R 386 R v Cunningham [2005] QCA 321 |
COUNSEL: | C. Wilson for the applicant B. Power for the respondent |
SOLICITORS: | Buckland Allen for the applicant Director of Public Prosecutions (Qld) for the respondent |
- [1]
- [2]The learned sentencing magistrate imposed a single penalty for all three offences, fined Mr Wu $1,500, allowed him three months to pay that fine, in default 21 days imprisonment, and ordered that he was “disqualified for 12 months from holding or obtaining a driver licence”.[4]
Application to reopen sentence
- [3]On 5 May 2011, Gang Wu made an application to a different learned magistrate seeking to reopen the sentence imposed by the earlier learned sentencing magistrate on 18 May 2006. The subsequent learned magistrate refused the application to reopen the original sentence, and concluded that, in any event, had the extension of time been granted to reopen the sentence, a different sentence would not have been imposed.[5]
Grounds for appeal
- [4]Mr Wu appeals on the following grounds:
- (1)The sentence was manifestly excessive in all of the circumstances
- (2)The [sentencing] magistrate erred in exceeding the maximum disqualification provided.
Time to appeal
- [5]The application for leave to appeal out of time was filed on 20 June 2011 (more than five years outside the appeal period).[6] Mr Wu has also brought an appeal (within time) against the decision of the subsequent learned magistrate on 20 May 2011, refusing to reopen the original 18 May 2006 sentence.
Issues
- (1)Did the original sentencing magistrate fall into error in imposing a single disqualification period in respect of three separate offences?
- (2)Did the original sentencing magistrate fall into sentencing error in imposing a disqualification period of 12 months, when the applicable penalty then provided for in the Transport Operations (Road Use Management) Act (TORUMA) s. 86(2)(e) was a disqualification of between three and nine months?
- (3)Did the original sentencing magistrate impliedly use the “broad brush” provisions of Penalties and Sentences Act s. 187 (driver license disqualification) when imposing a twelve months disqualification?
- (4)Whether in any event Mr Wu suffered a miscarriage of justice justifying reopening the sentence imposed on 18 May 2006, given his subsequent convictions for disqualified driving on 23 February 2007 at Southport Magistrates Court, and 13 September 2008 at Holland Park Magistrates Court.[7]
Discussion
- [6]The original sentence on 18 May 2006, during which Mr Wu was represented by a duty solicitor, was relatively brief. The prosecutor informed the court as follows:
“The facts in relation to this matter was [sic] at 2.35 am on 9 April 2006 police were conducting a LIDAR laser speed detection duties on the Pacific Motorway at Ormeau. They had cause to intercept a blue Subaru Impreza travelling at a speed of 184 kph in a 110 kph sign [sic]. The vehicle was travelling in a southerly direction on the motorway. That area as outlined is 110 kph speed zone as indicated by speed signs.
…
Subsequent checks revealed the defendant’s learners driver’s licence had expired on 3 November 2005. Police gave, as a result, a random roadside breath test, certificate later issued including breach alcohol concentration 0.056 [sic]. The defendant stated his friend who was with him at the time had a headache and that was the only reason given to police for driving at that time.”[8]
- [7]The prosecutor tendered a copy of the defendant’s “history” (presumably traffic history) and a certificate (presumably with respect to the blood alcohol concentration).
- [8]The duty lawyer who appeared made the following submissions:
“Your Honour, at 20 years of age he was driving his friend - friend’s vehicle because his friend at the time was suffering from severe headaches. He was trying to get his friend to a doctor, but he accept [sic] that it wasn’t the – and I have explained the specific concept to him of the emergency and the situation that would have arose and he said that, no, it wasn’t that emergent but he was – he was – he was – he was touched in an emotional way where he just wanted to get his doctor to a – his friend to a doctor to be treated. The situation wasn’t of such a nature, he says, that he wouldn’t have driven given his licence status. He accepts that what he’s done is wrong, your Honour.
It’s an early plea and he knows that there’s going to be a substantial amount of disqualification imposed on him and the loss of points, and those aspects have been explained to him as well.
I can indicate that just with respect to the manner of driving that I have asked him about, he says that only on straight passages did he exceed beyond 140, otherwise he was trying to keep in check and, had he been driving in – had he been driving in a certain manner, then obviously there would have been further serious charges imposed on him, but that’s not something that’s happened on this occasion.
That’s all that I can comment about his driving. It was excessive and he admits that.”[9]
- [9]The only further exchanges of any substance between the learned magistrate sentencing, the prosecutor and the duty lawyer were as follows:
“BENCH: Over 40 is six months, isn’t it, imposed by the Transport Department?
SERGEANT MARTAIN (prosecutor): Yes, your Honour.
BENCH: And this is 70 over.
SERGEANT MARTAIN: Yes, your Honour.
BENCH: Is he working?
MR SETH (duty lawyer): No, your Honour, he’s studying.
BENCH: What’s he studying?
MR SETH: I’ll just get those instructions. Hospitality course, your Honour.”[10]
- [10]As previously noted, the learned magistrate, in passing sentence, indicated that there was “one penalty for the three offences”, which in addition to the global fine ($1,500) was articulated as “disqualified for 12 months from holding or obtaining a driver’s licence”,[11] with an added warning from the learned sentencing magistrate “don’t drive during that period or you’ll be losing your licence for two years.”[12]
- [11]TORUMA s. 78 (in respect of the unlicensed driving offence) did not, as of 18 May 2006, provide for any mandatory disqualification unless one of the matters in TORUMA s. 78(3) (as it then was) applied. No such matters were relevant to the original sentence, so there was no mandatory disqualification pursuant to TORUMA s.78. Similarly, there was no mandatory disqualification with respect to the speeding offence.[13]
- [12]A single fine is permitted for two or more offences if they are “founded on the same facts” or “form, or are part of, a series of offences of the same or a similar kind.”[14] There is, however, no similar provision facilitating the imposition of a single driver’s licence disqualification period for multiple offences.
- [13]In R v Croft [1999] 1 Qd R 386, the Court of Appeal noted that Penalties and Sentences Act s. 49 provided for a single fine for a number of separate offences, and that ss 97 and 107 provided for a single probation and/or community service order in respect of two or more offences, but that there was no such provision in respect of terms of imprisonment.[15] The Court of Appeal noted the definition of “term of imprisonment” in Penalties and Sentences Act s. 4 as “the duration of imprisonment imposed for a single offence” and held that “it is necessary it impose separate terms of imprisonment for each offence.”[16] As the Court in R v Croft observed, sentences of imprisonment for multiple offences “often ought to reflect that the offences were not committed in isolation” and represent “an appropriate measure for the total criminality involved”, which would ordinarily be imposed “for the most serious offence” to punish “the total criminality involved.”[17]
- [14]The provisions of Penalties and Sentences Act s. 187 relevantly provide:
“(1)If—
- (a)an offender is convicted of an offence in connection with, or arising out of, the driving of a motor vehicle by the offender; and
- (b)the court by or before which the offender is convicted is satisfied having regard to the nature of the offence, or to the circumstances in which it was committed, that the offender should, in the interests of justice, be disqualified from holding or obtaining a driver licence; the court may, in addition to any sentence that it may impose, order that the offender is, from the time of the conviction, disqualified absolutely, or for such period as is ordered by the court, for holding or obtaining a driver licence.”[18]
- [15]The provisions of Penalties and Sentences Act s. 187 clearly refer to the offender being convicted of “an offence”. In my view, in the absence of any legislation to the contrary, a disqualification order can, and should, only attach to a single offence. There is, of course, no difficulty with multiple disqualification orders attaching (individually) to more than one offence.
Sentencing error
- [16]It follows that the learned sentencing magistrate on 18 May 2006 fell into error, in imposing a single disqualification order for multiple offences. However, I consider that the learned sentencing magistrate also fell into error in (apparently) deciding to impose a disqualification in excess of that provided for by TORUMA s. 86(2)(e), without calling for submissions from either the prosecution or the duty lawyer on behalf of Mr Wu. As Keane JA stated in R v Cunningham [2005] QCA 321, “to impose a penalty without allowing the person affected to have an opportunity to respond is a clear breach of the rule of natural justice that a court is required to follow.”[19] Keane JA concluded in Cunningham that “the learned sentencing judge erred in failing to observe the need to afford the applicant’s counsel the opportunity to address him in relation to whether a disqualification should be imposed” and it therefore fell to the Court of Appeal to “exercise the sentencing discretion afresh”.[20]
- [17]Jerrard JA, agreeing with Keane JA, noted that “the powers given by s. 187 of the Penalties and Sentences Act are apparently infrequently used; in any event, infrequently enough that neither the learned prosecutor nor defence counsel at the time would reasonably have anticipated that the sentencing judge might be considering making an order under it”, and went on to note two other errors that flowed from the failure to ensure procedural fairness in the sentence appealed from.[21]
Conclusion
- [18]It is clear that the learned sentencing magistrate on 18 May 2006 fell into error, firstly in imposing a single disqualification period for three offences, two of which did not attract mandatory disqualifications, and secondly in imposing a disqualification period in excess of the maximum applicable disqualification period in TORUMA s. 86(2)(e), namely nine months, without first indicating that the learned sentencing magistrate was considering a disqualification in excess of that period, and then failing to call for submissions on the applicability of s. 187 of the Penalties and Sentences Act (if that was , in fact, the discretion the learned sentencing magistrate was considering exercising).
- [19]It is clear then that the learned sentencing magistrate fell into multiple sentencing errors which were potentially avoidable if the learned sentencing magistrate had called for submissions from both the prosecution and the duty lawyer on the issues of the length of disqualifications, the offence or offences to which any such disqualifications should apply, and the applicable legislative framework to achieve the disqualifications the learned sentencing magistrate was contemplating.[22]
Miscarriage of justice
- [20]My conclusion that the learned sentencing magistrate on 18 May 2006 fell into error is not, however, the conclusion of the appeal. During the currency of the disqualification actually imposed (i.e. twelve months from 18 May, 2006), Mr Wu was apprehended driving while disqualified on 23 February 2007, and having been disqualified in Southport Magistrates Court on 14 March 2007, was again apprehended driving while disqualified in on 13 September, 2008 and sentenced in the Holland Park Magistrates Court on 27 November, 2008. The notice of application for extension of time for filing a notice of appeal was not lodged in the District Court until 20 June 2011, more than five years after the original sentence. Even if leave were granted and the appeal by Mr Wu was successful, it would not in my view necessarily lead to a successful overturning of his subsequent pleas of guilty for the disqualified driving infringements which occurred on 23 February 2007 and 13 September, 2008. Mr Wu chose to drive, while subject to disqualification which were, at the relevant times, lawfully imposed.
- [21]It follows that there has not been no miscarriage of justice. The application for an extension of time for filing a notice of appeal should be refused.
- [22]While I do not consider that the delay of five years in bringing an application to reopen the original sentence of 18 May 2006 could be said to be “an abuse of process”,[23] which I consider to be a poor choice of words by the learned subsequent magistrate who considered the application for reopening by Mr Wu, the learned subsequent magistrate’s conclusion on 20 May 2011 that there was “no explanation given for the delay” clearly and appropriately founds his conclusion that “it is not in the interest of justice to allow the extension of time”.[24]
- [23]It follows then that the appeal from the decision of the learned subsequent magistrate on 20 May 2011, refusing to reopen the sentence imposed by the earlier sentencing magistrate on 18 May 2006, should also be dismissed.
Orders
- [24](1)The application of an extension of time for filing a notice of appeal to a District Court judge is refused.
(2)The appeal against the decision of the learned magistrate on 20 May 2011, refusing a reopening of the sentence, is refused.
Footnotes
[1]Transport Operations (Road Use Management) Act 1995 (TORUMA) s. 79(2).
[2] TORUMA, s. 78.
[3]Transport Operations (Road Use Management – Road Rules) Regulation 1999 s. 20.
[4] Sentencing decision (18 May 2006) pp. 1-2.
[5] Reasons for judgment (20 May 2011) p. 6.
[6] Justices Act 1886 (Qld) s. 222(1).
[7] Reopening judgment (20 May 2011) paras 10 and 11.
[8] Sentencing submissions (18 May 2006), pp. 1-2.
[9] Sentencing submissions (18 May 2006), pp 1-2, 1-3.
[10] Sentencing submissions (18 May 2006), pp. 1-3.
[11] Sentencing decision (18 May 2006), pp. 1-2.
[12] Sentencing decision (18 May 2006), pp. 1-2.
[13]Transport Operations (Road Use Management – Road Rules) Regulation s. 20.
[14]Penalties and Sentences Act s. 49(1).
[15]R v Croft [1999] 1 Qd R 386, 387.
[16]R v Croft [1999] 1 Qd R 387.
[17]R v Croft [1999] 1 Qd R 386, 387. See also R v Nagy [2004] 1 Qd R 63 per Williams JA at p. 72 para 39; R v HAP [2008] QCA 137; R v Doolan [2008] QCA 41; R v SBJ [2009] QCA 100; R v Re Riera [2011] QCA 77.
[18]Penalties and Sentences Act 1992 (Qld) reprint 7E.
[19]R v Cunningham [2005] QCA 321 p. 5.
[20]R v Cunningham [2005] QCA 321.
[21]R v Cunningham [2005] QCA 321 per Jerrard JA pp 9-10.
[22] The endorsement on the file in respect of the sentence on 18 May 2006 relevantly reads, “One penalty in respect of three charges. The defendant is convicted and fined $1,500 and ordered to pay $______ costs of court. In default of payment the defendant is ordered to be imprisoned for 21 days. The defendant is allowed three months to pay. The defendant is disqualified from holding or obtaining a driver licence for a period of 12 months from this date. The conviction is recorded.”
[23] Exhibit 1 – reopening decision 20 May 2011 p. 4 para 12.
[24] Exhibit 1 – reopening decision 20 May 2011 p. 4 para 13.