R v Martin

[2012] QCA 323

[2012] QCA 323

COURT OF APPEAL

de JERSEY CJ
MUIR JA
FRASER JA

CA No 237 of 2012
DC No 1793 of 2011

THE QUEEN

v

MARTIN, Jeffrey Dean  Applicant

BRISBANE

DATE 20/11/2012

JUDGMENT

THE CHIEF JUSTICE:  The applicant seeks an extension of time within which to apply for leave to appeal against sentence.  The relevant sentence was imposed in the District Court on the 29th of November 2011.  The applicant was sentenced following his pleas of guilty in relation to a raft of property, driving and summary offences.

He was sentenced to an effective four year term, suspended after 12 months for an operational period of five years.  In addition, a suspended term of imprisonment imposed in the Magistrates Court on the 20th of August 2010 was activated.  That aspect of the sentence was reopened, leading to a variation on the 25th of July 2012.  On 29 November 2011, the Court ordered that the applicant be disqualified from holding or obtaining a drivers' licence for a period of two years.

In his application for an extension of time within which to appeal which was filed on the 17th of September 2012, some nine months after sentence and two months after the reopening (delay is not explained), the applicant says that he seeks to challenge only the licence disqualification.  In that application, he says that he has been offered employment which is dependent upon his securing a drivers' licence.

He has served the required period of actual imprisonment under his sentence.  Exhibit 1 is confirmation of the employment which has been offered to the applicant; an offer of employment to commence from the 7th of January 2013 on a farm property in northern New South Wales, which employment would require him to hold a drivers' licence.

The applicant relies on the circumstance that his licence was actually suspended from a date prior to the sentencing in the District Court and that the learned Judge erred in disqualifying him for two years from the date of sentencing, rather from that date from the commencement of the earlier suspension.

It is right to say that the applicant's licence was suspended from the 18th of November 2010. That is when he was served with a notice to appear in respect of a charge of the dangerous operation of a motor vehicle while he was adversely affected by an intoxicating substance. Section 79B of the Transport Operations (Road Use Management) Act 1995 provides that such a charge attracts licence suspension until the charge is dealt with in Court, and being charged is equated with being served with a notice to appear (section 79C).

The terms of section 79B are these:

1. This section applies if a person is ...

   (d)charged under the Criminal Code, section 328A(1) or (4) with the dangerous operation of a motor vehicle, when accompanied by the circumstance of aggravation that at the time of committing the offence the person was adversely affected by an intoxicating substance.

2. If the person holds a Queensland drivers' licence, the person's Queensland driver licence is suspended.

When the applicant came to be dealt with for that charge and the other raft of offences to which he pleaded guilty - that is, on the 29th of November 2011 - the learned Judge was by law obliged to disqualify the applicant from holding or obtaining a drivers' licence for a period of at least two years from the date upon which his Honour sentenced the applicant.

The relevant parts of section 78 of the Act are these:

1. A person must not drive a motor vehicle on a road unless the person holds a drivers' licence authorising the person to drive the vehicle on the road.

Then the section sets out maximum penalties, and then subsection (3) provides:

1. If the Court convicts a person of an offence against subsection (1) and any of the following circumstances apply, the Court, in addition to imposing a penalty, must disqualify the person from holding or obtaining a Queensland driver licence for the period mentioned in relation to the circumstance.

One of the circumstances is that prescribed by paragraph (i), which reads:

1. If the person committed the offence while, under section 79B -

   (i)        the person's Queensland driver licence was suspended.

And then the subsection specifies the period of disqualification; namely, for a period of at least two years but not more than five years, decided by the Court.

After being charged with the aggravated dangerous operation offence which operated to suspend the applicant's licence at once and during the period of that suspension which ran to the sentencing date 29 November 2011, the applicant drove while not authorised, contrary to section 78(1) of the Act.

Those instances of unlicenced driving occurred on three dates:  25th December 2010; 1st January 2011, and; 28 January 2011.  They attracted two-month terms of imprisonment at the sentencing in the District Court.  In those circumstances, section 78(3)(i) obliged the learned District Court Judge to impose a disqualification for a period of at least two years.

Now, it is true that no submissions were made by counsel before his Honour as to the applicability and operation of the provisions to which I have referred.  That absence of submissions has had no adverse effect, however, because the Judge imposed the minimum period of disqualification mandated by law.

I should say that there is nothing in the legislative scheme which would have authorised his backdating the two disqualification to 18 November 2010, which was when the licence suspension first arose, or reducing two years by the previously applicable period of suspension.

Therefore, regardless of the lack any explanation for the applicant's delay in bringing this application for an extension of time, that application should be refused because an appeal against the disqualification aspect of the sentence would have no prospect of success.

I would order that the application filed on the 17th of September 2012 therefore be refused.

MUIR JA:  I agree.

FRASER JA:  I agree.

THE CHIEF JUSTICE:  The application is refused.  Adjourn the Court.