Van Kuik v Zuanetti

[2012] QDC 116

DISTRICT COURT OF QUEENSLAND

CITATION:

Van Kuik v Zuanetti [2012] QDC 116

PARTIES:

GREGORY JOSEPH VAN KUIK
(Appellant)

AND

J. G. ZUANETTI
(Respondent)

FILE NO/S:

Appeal 191/11, Appeal 198/11; MAG 00235831/08 (2)

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Richlands

DELIVERED ON:

18 May 2012

DELIVERED AT:

Brisbane

HEARING DATE:

23 April 2012

JUDGE:

McGill DCJ

ORDER:

Appeal 191/11:  Appeal against conviction dismissed; extend time within which to appeal against sentence to 17 January 2011; appeal against sentence allowed.  Sentence set aside, and in lieu thereof order that there be no conviction recorded and the appellant be discharged absolutely.

Appeal198/11:  Appeal dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – Appellate jurisdiction – District Court in criminal appeal – plea of guilty in Magistrates Court –appeal only against sentence.

CRIMINAL LAW – Sentence – reopening – Magistrates Court – whether power to reopen.

VEHICLES AND TRAFFIC – Offences – Procedure – Appeals – sentence – absence of certificate of inspection – criminality of conduct – technical offence.

Justices Act 1886 s 147A; s 222(2)(c).

Penalties and Sentences Act 1992 s 188.

Ajax v Bird [2010] QCA 2 – applied.
Commissioner of Police v Kirby [2010] QDC 110 – followed.
Cook v Commissioner of Police [2012] QCA 118 – cited.
Costigan v Marshall [2010] QCA 344 – cited.
Long v Spivey [2004] QCA 118 – cited.
Smith v Ash [2011] 2 Qd R 175 – cited.

COUNSEL:

A.I. McAdam for the appellant

C.J. Lloyd for the respondent

SOLICITORS:

The appellant was not represented

Director of Public Prosecutions for the respondent

1. On 8 January 2009 the appellant appeared in the Richlands Magistrates Court charged with one count of unlicensed driving. A plea of guilty was entered, and the magistrate imposed a fine and disqualified him from holding or obtaining a driver licence for six months. On 27 January 2009 the appellant made an application to reopen the proceedings under s 147A of the Justices Act 1886, which was heard and dismissed. On 7 October 2010 the appellant made a further application for an extension of time to reopen the proceedings under s 147A of the Justices Act, which on 20 December 2010 was also dismissed. On 17 January 2011 the appellant filed two notices of appeal, one against the decision of 8 January 2009,[1] and one against the decision of 20 December 2010.[2]  The latter was within time, but the former was not.  Nevertheless, in the circumstances, the respondent did not oppose the grant of an extension of time within which to appeal against the earlier decision.

   [1]Appeal BD191/11.

   [2]Appeal BD198/11.

Background

1. At some stage, the date of which does not appear, the appellant was sent a notice, no doubt in the approved form, advising him that he had accumulated an excess number of demerit points, so that he was confronted with a choice between having his licence suspended for a specified period or going on what is described as a good driving behaviour period for one year.[3]  The notice set out…