R v Ward

[2003] QDC 5

DISTRICT COURT OF QUEENSLAND

CITATION:

R v. Ward [2003] QDC 005

PARTIES:

THE QUEEN  (Applicant)

AND

ROBERT WILLIAM WARD  (Respondent)

FILE NO/S:

400/02

DIVISION:

Criminal

PROCEEDING:

Application to re-open sentence

ORIGINATING COURT:

District Court

DELIVERED ON:

12 February 2003

DELIVERED AT:

Maroochydore

HEARING DATE:

6 February 2003

JUDGE:

Judge J.M. Robertson

ORDER:

Application dismissed.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – Applcn to re-open – def punched complainant in eye causing GBH – no evidence of permanent injury at sentence, but subsequently available – wh original sentence decided on “clear factual error of substance” – discretion to re-open

Cases Judicially Considered:

R v. Amituanai (1995) 78 A Crim R 588
Davis (1999) 109 A Crim R 314

Statutes Judicially Considered:
Penalties and Sentences Act 1992, ss.9(4)(c), 9(4)(d), 188(1)

COUNSEL:

A. Stark (Solicitor) for the Applicant

D.N. Murray for the Respondent

SOLICITORS:

Director of Public Prosecutions for the Applicant

Ryan & Bosscher for the Respondent

1. This is an application by the Director for a re-opening of a sentencing procedure pursuant to s.188(1)(c) of the Penalties and Sentences Act 1992 which is in the following terms:

“188(1) If a court has in, or in connection with, a criminal proceeding, including a proceeding on appeal –

…

(c)imposed a sentence decided on a clear factual error of substance;

the court, whether or not differently constituted, may reopen the proceeding.”

1. There is a preliminary point which can be disposed of quickly. Section 188(5) is in these terms:

“188(5)  The court may reopen the proceeding –

(a)     on its own initiative at any time; or

(b)     for a reopening under subsection (1) – on the application of a party to the proceeding made within –

(i)   28 days after the day the sentence was imposed; or

(ii)    any further time the court may allow on application at any time; or

(c) for a reopening under subjection (2) – on the application of the prosecution made at any time, whether or not the appeal period under the Criminal Code, section 671(2) has expired.”

1. The parties have agreed on a chronology of events relevant to s.188(5):

Date of sentence:  28.10.2002
Date of original application to re-open:     28.11.2002

1. The applicant is therefore three days out of time. The reasons for the delay are set out below. No objection is taken by Mr Murray for the respondent to the extension of time and I formally order that the time for making the application be extended until the 28^th November 2002.

Introduction

1. The applicant submits that the sentence imposed on the 28^th October 2002 was decided on a clear factual error of substance in that the complainant has in fact suffered a permanent disability as a result of the offence or is likely to suffer a permanent injury to her eye.

1. The respondent pleaded guilty to causing grievous bodily harm to the complainant before me on the 28^th October 2002. The sentencing hearing transcript is annexed to these reasons. In summary, at the time of the…