Van Kuik v Zuanetti

Case [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…

Continue reading Van Kuik v Zuanetti

Sign in free to access the full text

Details
AGLC
Van Kuik v Zuanetti [2012] QDC 116
Case
[2012] QDC 116
Decision Date

CaseChat Overview and Summary

Van Kuik sought leave to appeal against his conviction in the District Court. The appeal was brought under the appellate jurisdiction provisions of the District Court Act 1967. The conviction arose from a plea of guilty entered in the Magistrates Court. The appellant argued that the Magistrates Court lacked the power to reopen a sentence. The crux of the legal issue was whether the Magistrates Court had the authority to modify or reopen a sentence after a plea of guilty had been entered. The court examined the relevant provisions of the Criminal Procedure Act 2009 (Vic) and found that the Magistrates Court indeed had the power to reopen a sentence under certain conditions. The court also noted the absence of a certificate of inspection, which is a technical offence, as part of the appellant's argument. Ultimately, the court concluded that the appeal against the conviction was dismissed, but the time to appeal against the sentence was extended to allow for a proper consideration of the sentence. The appeal against the sentence was allowed, and the sentence was set aside, with a new order that no conviction be recorded and the appellant be discharged absolutely. The second appeal was dismissed.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.