Meakin v Director of Public Prosecutions & Anor [2011] NSWCA 373

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Meakin v Director of Public Prosecutions & Anor [2011] NSWCA 373 Hearing dates: 26 August 2011 Decision date: 30 November 2011 Before: Allsop P at [1]; Beazley JA at [7]; Basten JA at [99] Decision: The summons is dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ADMINISTRATIVE LAW - jurisdictional error - failure to take into account maximum automatic licence disqualification period in Road Transport (General) Act, s 188(4) - whether judge failed to take into account a relevant consideration when imposing a licence disqualification period - whether judge's refusal to re-open sentence proceedings constituted jurisdictional error - licence disqualification period not in issue on the appeal - no error in the sentence imposed by sentencing judge - no jurisdictional error in refusing application to re-open sentence under Crimes (Sentencing Procedure) Act, s 43 - appeal dismissed

ADMINISTRATIVE LAW - whether applicant entitled to discretionary relief under Supreme Court Act, ss 65 and 69 - delay in application to reopen sentence under Crimes (Sentencing Procedure) Act, s 43 - discretionary relief refused

CRIMINAL LAW - appeal against conviction and sentence - driving in a manner dangerous to the public and driving with a mid-range prescribed concentration of alcohol - application to reopen the sentence proceedings in respect of licence disqualification period - whether licence disqualification period contrary to law pursuant to Crimes (Sentencing Procedure) Act, s 43(2) - licence disqualification period not in issue on appeal - no error in sentence imposed by sentencing judge - no jurisdictional error in refusing application to reopen sentence under Crimes (Sentencing Procedure) Act, s 43 - appeal dismissed Legislation Cited: Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 District Court Act 1973 Road Transport (General) Act 2005 Road Transport (Safety and Traffic Management) Act 1999 Supreme Court Act 1970 Cases Cited: Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305 Boyd v Sandercock; ex parte Sandercock [1990] 2 Qd R 26 Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (No 2) (1991) 22 NSWLR 389 Craig v South Australia [1995] HCA 58; 184 CLR 163 Director of Public Prosecutions v Emanuel [2009] NSWCA 42; 193 A Crim R 552 Erceg v The District Court of New South Wales & Anor [2003] NSWCA 379; 143 A Crim R 455 Ho v DPP (1995) 37 NSWLR 393 Hoffenberg v District Court of New South Wales [2010] NSWCA 142 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; 239 CLR 531 Kirk v Industrial Relations Commission [2010] HCA 1; 239 CLR 531 Luxton v Vines [1952] HCA 19; 85 CLR 352 Melville v The Queen (1999) 150 FLR 296 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 Muldrock v R [2011] HCA 39; 281 ALR 652 Nudd v The Queen [2006] HCA 9; 80 ALJR 614 R v Deacon (1993) 65 A Crim R 261 R v Denning (New South Wales Court of Criminal Appeal, 15 May 1992, unreported) R v Finnie (No 2) [2004] NSWCCA 150 R v Tolmie [2004] NSWCCA 396 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 R v Woodford (1996) 89 A Crim R 146 Roads and Traffic Authority of NSW v Higginson [2011] NSWCA 151 Shortland v Heath 1977 WAR 61 Spanos v Lazaris [2008] NSWCA 74 Staats v The Queen (1998) 123 NTR 16 Traegar v Pires de Albuquerque (1997) 18 WAR 432 University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481 Wishart v Fraser [1941] HCA 8; 64 CLR 470 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 21 September 1988 at 1673 Category: Principal judgment Parties: Peter Jeremy Meakin (Applicant) Director of Public Prosecutions (First Respondent) District Court of New South Wales (Second Respondent) Representation: H Dhanji (Applicant) I Bourke; M Rennie (First Respondent) Submitting Appearance (Second Respondent) Hillman, Laxon, Tobias (Applicant) Solicitor for Public Prosecutions (First Respondent) Crown Solicitor (Second Respondent) File Number(s): 2010/427039