R v Watt

[2007] QCA 23

SUPREME COURT OF QUEENSLAND

CITATION:

R v Watt [2007] QCA 23

PARTIES:

R
v
WATT, Russell David McRitchie

(applicant)

FILE NO/S:

CA No 290 of 2006

DC No 96 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED EX TEMPORE ON:

5 February 2007

DELIVERED AT:

Brisbane

HEARING DATE:

5 February 2007

JUDGES:

McMurdo P, Keane JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for extension of time is dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PROCEDURE – APPLICATION FOR EXTENSION OF TIME SENTENCE AND CONVICTION – where applicant convicted of dangerous operation of a motor vehicle and sentenced to nine months imprisonment served by way of intensive correction order and disqualified from holding a license for three years – where applicant’s injury prevented performing community service as part of intensive correction order – where applicant re-sentenced to six months imprisonment wholly suspended, with operational period 18 months – where applicant committed offence during suspended sentence, and operational period extended 12 months – where no satisfactory explanation for delay and no reasonable prospect of appealing conviction and sentence

COUNSEL:

The applicant appeared on his own behalf
D Meredith for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MULLINS J:  The applicant was convicted after trial before a jury in the District Court on 15 April 2004 of dangerous operation of a motor vehicle.  He was sentenced on 15 April 2004 to imprisonment of nine months to be served by way of an intensive correction order and disqualified from holding or obtaining a driver's licence for a period of three years. 

During the course of performing community service pursuant to the intensive correction order the applicant injured his back on 3 June 2004.  On 13 January 2005 the intensive correction order was revoked and the applicant was re-sentenced to imprisonment of six months wholly suspended for an operational period of 18 months.

As a result of the applicant being convicted on 12 October 2005 of driving whilst disqualified on 10 May 2005, he was dealt with for committing an offence during the operational period of the suspended term of imprisonment, and on 18 August 2006 the operational period was extended for a further 12 months.

The application for extension of time within which to appeal against conviction and apply for leave to appeal against sentence and the notice of appeal were filed on 10 October 2006.  It appears from this notice and accompanying submissions that the applicant seeks to appeal against the conviction on the ground that omissions and errors were made in the learned trial Judge's summing-up and that the conviction was unsafe and unsatisfactory.  It appears that the applicant seeks leave to appeal against the sentence that was originally imposed on the basis that the sentence was excessive in the circumstances.  The applicant also seeks leave to appeal against the resentencing and the subsequent extension of the operational period of the suspended term of imprisonment imposed on the resentencing. 

The particulars of the charge were that on 13 May 2002 at Glenwood and elsewhere in the State of Queensland the applicant dangerously operated a vehicle on the Bruce Highway.  The prosecution case at the trial was that the applicant was driving his vehicle northbound on the Bruce Highway when he overtook an unmarked police vehicle travelling in the same direction that was being driven by Sergeant Swindells.  Sergeant Swindells gave evidence that he then sped his vehicle up and positioned it about 80 metres behind the vehicle being driven by the applicant and maintained that position for about 300 metres and that his speedometer was showing 130 kilometres per hour.  Sergeant Swindells then gave evidence that he dropped his vehicle back, but kept the applicant's vehicle under observation, and saw the applicant's vehicle driving on the incorrect side of the highway to pass vehicles and, when doing that it crossed double white lines as it approached a left hand bend, where the applicant's view of oncoming traffic would have been compromised.  Sergeant Swindells also stated that he radioed ahead for assistance, which resulted in Sergeant Silcock going out to the highway to stop the applicant's vehicle. 

The applicant was represented by his solicitor at the trial and gave evidence.  He stated in evidence that he did not exceed the speed limit, he did not go out across double white lines and pass vehicles in the Glenwood area, and he did not pass vehicles on a left hand bend. 

In summing-up the trial Judge pointed out to the jury that the prosecution case rested on the evidence of Sergeant Swindells and that the jury had to consider all of the evidence, whether they accepted the evidence of Sergeant Swindells about what he saw, and whether they were satisfied that his evidence was accurate to the level where they could act upon it and be satisfied beyond reasonable doubt of the prosecution case.  The verdict of guilty indicates that the jury accepted the evidence of Sergeant Swindells.

The applicant in his submissions on this application makes a number of points on factual matters that relate to peripheral aspects of the evidence adduced at the trial.  Most of the points made by the applicant are matters that would usually be the subject of cross-examination of relevant witnesses or mentioned in the address to the jury of the defence lawyer.  None of the matters raised by the applicant required any specific comment by the trial Judge.  The issue for the jury was identified clearly by the trial Judge, which depended on whether they accepted the evidence of Sergeant Swindells.  Nothing is raised in the applicant's submissions about the conviction that suggests that there is any prospect of a successful appeal against the conviction.

Putting to one side the question of whether an appeal can be brought against a sentence which has been revoked, there is nothing in the applicant's material to show that the intensive correction order of nine months was outside the appropriate sentencing range.  The applicant was 50 years old at the time of the offence and 54 years old when convicted.  He had a prior criminal history that was not particularly relevant, but had an extensive traffic history that was relevant.  The trial Judge considered that the applicant had demonstrated no remorse or appreciation of the dangerous situation that his driving had caused.

The applicant attributes the lengthy delay to prosecuting an appeal to relatively recently diagnosed depression.  There is however no admissible evidence of this.  There has been no acceptable explanation given by the applicant for why he did not file a notice of appeal and application for leave to appeal against sentence within the requisite period of one month after being convicted and originally sentenced.  The re-sentencing occurred on the revocation of the intensive correction order at the request of the applicant and did not result in a sentence that required actual custody.  No explanation is given by the applicant for failing to apply within time for leave to appeal against that re-sentence, or the order extending the operational period for the suspended term of imprisonment as a result of the conviction on 12 October 2005 for driving while disqualified.  I would therefore dismiss the application.

THE PRESIDENT:  I agree.

KEANE JA:  I agree.

THE PRESIDENT:  The order is the application for extension of time is dismissed and I direct that a copy of the reasons be provided to the applicant.

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