Wu v Police
[2011] QMC 28
•20 May 2011
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Wu v Police [2011] QMC 28
PARTIES:
GANG WU
(applicant)
v
POLICE
(respondent)
FILE NO/S:
MAG189752/08(3)
DIVISION:
Magistrates Courts
PROCEEDING:
Application to reopen sentence
ORIGINATING COURT:
Magistrates Court at Beenleigh
DELIVERED ON:
20 May 2011
DELIVERED AT:
Beenleigh
HEARING DATE:
5 May 2011
MAGISTRATE:
McDougall JA
ORDER:
Application Dismissed
CATCHWORDS:
CRIMINAL LAW – PRACTICE AND PROCEDURE – reopening sentence – sufficient reason to extend time to file
Penalties and Sentences Act 1992, s 188(1)(a)
COUNSEL:
Wilson for applicant
Phillips (sergeant) for respondent
SOLICITORS:
Buckland Allen for applicant
Police prosecution for respondent
This is an application by Gary Wu to reopen a sentence imposed in the Beenleigh Magistrates Court on 18 May 2006 under s 188(1)(a) of the Penalties and Sentences Act.
That act says where relevant as follows:-
“188 Court may reopen sentencing proceedings
(1)If a court has, or in connection with, a criminal proceeding, including a proceeding on appeal –
(a)imposed a sentence that is not in accordance with the law; or
(b)failed to impose a sentence that the court legally should have imposed; or
(c)imposed a sentence decided on a clear factual error of substance; or
(d)failed to fix a date for the offender to be released on parole as required under Part 9, Division 3;
the court, whether or not differently constituted, may reopen the proceedings.
(2)…
On 18 May 2006, the Applicant pleaded guilty in the Magistrates Court at Beenleigh for the following charges:
1. That on 9 April 2006 at Ormeau in the Magistrates Court District of Beenleigh in the State of Queensland one Gang Wu being the driver of a vehicle namely a motor car drove at a speed over the speed limit namely 110 kilometres per hour applying to the driver for the length of road namely Pacific Motorway Ormeau where the said driver was driving.
2. That on 9 April 2006 at Ormeau in the Magistrates Court District of Beenleigh in the State of Queensland one Gang Wu did drive a motor vehicle namely a motor car on a road namely Pacific Motorway Ormeau the said defendant not being at the time the holder of a driver’s licence authorising him to drive that vehicle on that road.
3. That on 9 April 2006 at Ormeau in the Magistrates Court District of Beenleigh in the State of Queensland one Gang Wu whilst he was over the general alcohol limit but not over the high alcohol limit did drive a motor vehicle namely a motor car on a road namely Pacific Motorway Ormeau.
Mr Wu was represented by a solicitor on the plea of guilty.
The particulars of the charges were that Mr Wu was unlicensed, his learner’s licence having expired. He drove at a speed of 184 kilometres per hour on the Pacific Motorway at Ormeau where the speed limit for that section of road was 110 kilometres. At that time he had a blood alcohol concentration of .056. There was a passenger in the motor vehicle.
The following submissions were made on his behalf by his solicitor:
“Your Honour, at 20 years of age he was driving his friend/friend’s vehicle because his friend was at the time suffering from severe headaches. He was trying to get his friend to a doctor, but he accepts that it wasn’t the – and I have explained the specific concept to him about the emergency and the situation that would have arose and he said that, no, it wasn’t that emergent but he was – he was – he was touched in an emotional way where he just wanted to get to his doctor to a – his friend to a doctor to be treated.
The situation wasn’t of such a nature, he says, that he accepts he wouldn’t have driven given his licence status. He accepts that what he has done is wrong, Your Honour.
It’s an early plea and he knows that there’s going to be a substantial amount of disqualification imposed on him and the loss of points, and those aspects have been explained to him as well.
I can indicate that just with respect to the manner of driving that I have asked him about, he says that only on the straight passages did he exceed beyond 140, otherwise he was trying to keep in check and, had he been driving in – had he been driving in a certain manner, then obviously there would have been further serious charges imposed on him, but that’s not something that has happened on this occasion.
That’s all I can comment about his driving. It was excessive and he admits that.”
The Presiding Magistrate said in passing sentence as follows:
“There is one penalty for the three offences. That takes into account your early plea of guilty, the matters – the facts of the case, and the matters raised by Mr Sef. What you did was very dangerous and you are lucky to be standing here being sentenced because you could have killed yourself, your friend and innocent people. Today you’re fined $1,500 and disqualified for 12 months from holding or obtaining a driver’s licence. Allowed 3 months to pay that fine, in default 21 days.”
The Presiding Magistrate further admonished the defendant saying:
“Don’t drive during that period or you will be losing your licence for two years.”
The Presiding Magistrate was mindful of the penalty imposed by the Department of Transport under the Transport Operations Road Use Management Act for excessive speed convictions. She said:
“Over 40 is six months, isn’t it, imposed by the Transport Department?”
Despite the admonishment not to drive whilst under disqualification that is precisely what the defendant proceeded to do. Some 10 months later on 23 February 2007 at Southport Mr Wu was convicted of driving whilst disqualified by Order of the Court. He was fined $1,000 and disqualified from holding or obtaining a driver’s licence for a period of two years.
Still not deterred by the penalties imposed by the court Mr Wu appeared again this time in the Holland Park Magistrates Court again charged with driving whilst disqualified on 13 September 2008. He pleaded guilty on 27 November 2008 and was fined the sum of $1,200 and disqualified from holding or obtaining a driver’s licence for a period of 26 months. An application was made on 5 April 2011 to reopen that sentencing and that application was adjourned to this court pending the application to reopen the original sentence passed on 18 May 2006. The applicant relies upon section 188(1)(a) of the Penalties and Sentences Act namely that the sentence imposed was not in accordance with the law.
Delay
Under section 188(5)(b)(i) and (ii) of the Penalties and Sentences Act an application to reopen a sentence under sub-section (1) is to be brought within 28 days of the sentence or any further time the court may allow. On any view, a delay of 5 years in bringing the application amounts I think, to an abuse of process. There is no explanation given for the delay. The fact that the defendant has subsequently been convicted on 2 occasions for driving whilst under disqualification is, no doubt the reason for the application. The first of those offences occurred on 23 February 2007, ie under the original disqualification period imposed on 18 May 2006. Subsequently on 13 September 2008, while under the period of disqualification imposed on 14 March 2007. Mr Wu is no doubt motivated to bring this application to reopen the sentence as he now has multiple convictions for driving whilst disqualified by Order of the Court. Any further conviction for such an offence puts Mr Wu in a situation where he could well be facing a period of imprisonment.
Mr Wu was represented by a solicitor when he pleaded guilty on 18 May 2006 and if he considers the sentence miscarried or was excessive, he had every opportunity to appeal. It is for the Appeal Courts to determine whether or not sentences are excessive. The severity of sentence is not something that is contemplated in s188 of the Penalties and Sentences Act. I find the applicant’s explanation for the 5 year delay in making this application to be unpersuasive and, considering that the applicant has paid the penalty I have referred to above and the periods of disqualification have all now expired, I find it is not in the interest of justice to allow the extension of time beyond the 28 days to bring the application. See R v Rollason[1].
[1] 2009 QCA 157
Did the court impose a sentence that is not in accordance with the law?
Should my refusal to allow an extension of time to bring the application be overturned, I shall consider the substantive argument.
The charge of driving while unlicensed would, in the normal course of events, attract a fine. The charge of driving unlicensed with a blood alcohol concentration of .056 would in the normal course of events attract a fine and a minimum period of disqualification of 3 months. The maximum period of disqualification that could be imposed under the Transport Operations Road Use Management Act is 9 months for the BAC charge.
It is no doubt the combination of these offences together with the excessive speed that troubled the sentencing Magistrate. As she said:
“What you did was very dangerous and you’re lucky to be standing here being sentenced because you could have killed yourself, your friend and innocent people.”
Driving at a speed of 184kph with a blood alcohol concentration of .056 with a passenger in the motor vehicle would, and in my view should, attract a substantial period of disqualification.
Whilst there is no specific period of disqualification that a court must, or may, impose set out in the Transport Operations Road Use Management Act for the speeding offence, s 187 of the Penalties and Sentences Act allows a sentencing court to impose a period of disqualification if:
(a)an offender is convicted of an offence in connection with or arising out of the driving of a motor vehicle by the offender; and
(b)the court by or before which the offender is convicted is satisfied having regard to the nature of the offence, or to the circumstances in which it was committed, that the offender should in the interest of justice, be disqualified from holding or obtaining a Queensland driver’s licence. (emphasis added)
While the Presiding Magistrate could be criticised for not imposing separate penalties of disqualification for the blood alcohol concentration charge and the speeding charge and for not raising s 187 of the Penalties and Sentences Act with the defendant’s solicitor at the time, such a sentence was certainly available to the Magistrate. It seems clear from the transcript that the solicitor for the defendant was mindful of the fact that a substantial period of disqualification was likely to be imposed and had raised that with the defendant. He submitted to the Magistrate:
“It’s an early plea and he knows that there’s going to be a substantial amount of disqualification imposed on him and the loss of points, and those aspects have been explained to him as well.”
It is reasonable to assume in light of that, that the final sentence imposed was not unexpected. This is the likely explanation for the defendant’s failure to appeal. I dismiss the application. The applicant has applied to reopen the convictions and sentences imposed for the driving while disqualified convictions on 14 March 2007 and 27 November 2008. If the first application had been successful and a lesser disqualification period imposed, then the charges could not stand. It follows from my decision in the first application that there is no basis to reopen these charges and the applications are therefore dismissed.
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