Wu v Queensland Police Service

DISTRICT COURT OF QUEENSLAND

CITATION:

Wu v Queensland Police Service [2012] QDC 102

PARTIES:

GANG WU
(Applicant)

V

QUEENSLAND POLICE SERVICE
(Respondent)

FILE NO/S:

65/11 and 66/11

DIVISION:

Appellate

PROCEEDING:

Sentence appeal

ORIGINATING COURT:

Magistrates Court, Beenleigh

DELIVERED ON:

8 May 2012

DELIVERED AT:

Beenleigh

HEARING DATE:

25 November 2011

JUDGE:

Dearden DCJ

ORDER:

Application for extension of time for filing a notice of appeal refused.

Appeal against decision of magistrate refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – OTHER MATTERS

Whether sentence manifestly excessive – where single licence disqualification period for three separate offences – whether sentencing magistrate utilised s. 187 Penalties and Sentences Act – whether the applicant suffered a miscarriage of justice justifying a reopening of the sentence – where sentencing magistrate fell into multiple sentencing errors – where no miscarriage of justice in denying extension of time for filing a notice of appeal

LEGISLATION:

Transport Operations (Road Use Management) Act 1995 (Qld)

Justices Act 1886 (Qld)

Penalties and Sentences Act 1992 (Qld)

CASES:

R v Croft [1999] 1 Qd R 386

R v Cunningham [2005] QCA 321

COUNSEL:

C. Wilson for the applicant

B. Power for the respondent

SOLICITORS:

Buckland Allen for the applicant

Director of Public Prosecutions (Qld) for the respondent

1. On 18 May 2006 the applicant, Gang Wu, appeared in the Beenleigh Magistrates Court and pleaded guilty to charges of driving with a blood alcohol concentration of 0.056%,[1] unlicensed driving,[2] and speeding.[3]

   [1]Transport Operations (Road Use Management) Act 1995 (TORUMA) s. 79(2).

   [2]TORUMA, s. 78.

   [3]Transport Operations (Road Use Management – Road Rules) Regulation 1999 s. 20.

1. The learned sentencing magistrate imposed a single penalty for all three offences, fined Mr Wu $1,500, allowed him three months to pay that fine, in default 21 days imprisonment, and ordered that he was “disqualified for 12 months from holding or obtaining a driver licence”.[4]

   [4]Sentencing decision (18 May 2006) pp. 1-2.

Application to reopen sentence

1. On 5 May 2011, Gang Wu made an application to a different learned magistrate seeking to reopen the sentence imposed by the earlier learned sentencing magistrate on 18 May 2006.  The subsequent learned magistrate refused the application to reopen the original sentence, and concluded that, in any event, had the extension of time been granted to reopen the sentence, a different sentence would not have been imposed.[5]

   [5]Reasons for judgment (20 May 2011) p. 6.

Grounds for appeal

1. Mr Wu appeals on the following grounds:

(1)         The sentence was manifestly excessive in all of the circumstances

(2)         The [sentencing] magistrate erred in exceeding the maximum disqualification provided.

Time to appeal

1. The application for leave to appeal out of time was filed on 20 June 2011 (more than five years outside the appeal period).[6]  Mr Wu has also brought an appeal (within time) against the decision of the subsequent learned magistrate on 20 May 2011, refusing to reopen…