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R v CCE

 

[2018] QCA 176

COURT OF APPEAL

SOFRONOFF P

HENRY J

BROWN J

CA No 37 of 2018

DC No 377 of 1997

THE QUEEN

v

CCE Applicant

BRISBANE 

THURSDAY, 2 AUGUST 2018

JUDGMENT

BROWN J:  On 23 February 2018, the applicant filed a notice of appeal and an application for an extension of time, seeking to set aside a conviction or alternatively claiming that the sentence imposed was manifestly excessive.  The applicant was convicted on his own plea of guilty of carnal knowledge by anal intercourse of a child under the age of 12 years and sentenced on 15 December 1997.  He was sentenced to life imprisonment.  He sought leave to appeal the sentence imposed, apparently on the ground that it was manifestly excessive.  That application was unanimously dismissed on 27 May 1998.  A copy of that judgment, R v C [1998] QCA 207, was filed by the respondent in the present application.

The present application is made more than 20 years after the time prescribed for appealing the conviction and sentence.  The applicant therefore requires an extension of time to be granted by this Court.

No material has been provided by the applicant in support of the application.  The only material before the Court, apart from the notice of appeal and application to extend time, is the transcript of the sentence hearing, the sentencing remarks of the learned primary judge and the applicant’s criminal history.

Factual Background

The offence related to a two year old child.  The Court of Appeal considered that the sentencing judge described the offence accurately as one of almost unimaginable brutality.  The complainant suffered significant injuries as a result of the offence.

The applicant was the nephew of the complainant’s grandmother.  He was seen by the grandmother climbing out of the window of the room, where the complainant was found, after she managed to unlock the door.  The applicant initially denied any involvement and his de facto partner provided a false alibi, claiming that he had been with her all night.  He agreed to plead guilty after the committal when forensic testing showed the complainant’s blood was on penile swabs that had been taken from him.  A psychiatrist’s report provided to the sentencing court did not find that he suffered any psychotic or neurotic disorder.  The applicant had a criminal history of violent conduct, particularly associated with alcohol.

The learned sentencing judge and the Court of Appeal found that he had shown no remorse and his plea of guilty could not go to that.  The learned sentencing judge and the Court of Appeal commented that he was a person of at least average intelligence.  Davis JA, with whom McPherson JA and Thomas J agreed, stated that:

“It was submitted on his behalf before us this morning by Mr Atkinson that a sentence of life imprisonment to an Aboriginal person, whom the applicant is, who particularly values his freedom, is a crushing sentence. It was submitted that by virtue of its indeterminate nature it would not afford him a goal to aim at or to plan or hope for the future. No doubt that is correct and though one may understand that submission one must bear in mind that in imposing the life sentence the learned sentencing Judge said that, in his view, this case was one of the worst examples of the offence for which he was sentencing. In my view, his Honour was justified in reaching that conclusion. When one has regard to his previous violent conduct and the almost unbelievable brutality of this offence I cannot disagree with the conclusion which his Honour reached in imposing the sentence which he did. I would therefore refuse the application.”

The applicant was represented by counsel at the time he pleaded guilty and was sentenced.  None of the facts were disputed at the time of sentence, nor do they appear to have been disputed at the time of the appeal.

The offender was 25 years of age at the time of offending and is now 45.  He has been eligible to apply for parole since 15 May 2010.  The applicant represents himself at this hearing.

Application for Extension of Time

The notice of appeal and the application for an extension of time identify the following grounds:

  1. Sentence manifestly excessive;
  2. Conviction overturned and guilty plea set aside;
  3. Order a retrial due to flawed medical evidence.

Given the applicant has previously applied unsuccessfully to appeal his sentence (although not his conviction), there is an issue whether this Court has jurisdiction to hear a further application, at least in relation to the sentence.  As discussed by Boddice J in R v Gopurenko,[1] with whom the rest of the Court agreed, that question presently remains unresolved.  As the Court has concluded in respect of this application for leave to appeal and for an extension of time that it is without merit, it is not necessary to resolve it in the present case.

In an application for an extension of time, the applicant bears the onus on all issues.[2]  This was reiterated in the R v Tait,[3] where the Court stated that the relevant approach in an application of this kind, namely:

“…the Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension.  That may involve some assessment of whether the appeal seems to be a viable one.  It is not to be expected that in all such cases the Court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the Court will often find it appropriate to make some provisional assessment of the strength of the applicant’s appeal, and take that into account in deciding whether it is a fit case for granting the extension.”

The first issue is whether there is any good reason shown to account for the delay.  As I have said, the application is filed more than 20 years out of time.  The delay is unexplained by the applicant.  The respondent submits that the significant and unexplained delay is a sufficient basis upon which the Court should refuse the application.  While that is so, given that the applicant is self-represented, it is appropriate to briefly consider the second issue, namely whether it is in the interests of justice to grant the extension of time.

In this regard, the respondent relies on the R v DAQ,[4] in which Keane JA, as his Honour then was, stated (with Fraser JA and Mackenzie AJA agreeing):

“…where an applicant has made a deliberate decision not to appeal, and has changed his mind in that regard only after serving the bulk of his sentence, it is understandable that the discretion to allow an appeal to proceed should be exercised in favour of an applicant only where the applicant presents a compelling demonstration of a serious injustice which can be corrected only on appeal.”

The applicant also relies on the further statement at paragraph 10 of that case where his Honour noted:

“… delay detracts from the public interest in the finality of litigation.”

It is for the applicant to satisfy the Court that he has a viable case and that he suffered a miscarriage of justice by reason of his guilty plea being accepted or by reason of the sentence imposed.

In seeking to set aside a conviction where the applicant has pleaded guilty, the principles are relevantly set out by Muir JA, with whom Wilson AJA agreed, in R v Wade.[5]  The applicant must first persuade the Court to go behind his plea of guilty and that a miscarriage of justice has occurred.  There must be a strong case and exceptional circumstances to warrant the Court doing so.

Setting Aside the Conviction

The applicant raises 15 complaints in his handwritten submissions in relation to this application.  Only paragraph 8 of those submissions seeks to raise any issues which can be connected with his plea of guilty.  It is noted however that in oral submissions the applicant raised the fact that he and his lawyer went back and forth about a plea of guilty or not guilty, but he raised nothing which could go to the question of whether the plea was a voluntary one and freely given.

The applicant complains about the conduct of his police interview.  He submits that, as an Aboriginal indigenous person with a very low ability of functioning, he should have had a lawyer or support person.[6]  The respondent submits that the complaint is without any proper foundation as the applicant was represented by experienced counsel at the time of his plea in open court, was a mature man of apparently sound mind and there is no evidence to suggest that his plea of guilty was not entered in the exercise of his own free will and in his own interests.[7]

Given that the applicant was represented at the time of sentencing and at the time of the appeal, even if it is assumed that he did not have a lawyer or friend present at the police interview, that does not support the fact that at the time of sentence, his plea of guilty was not made freely and voluntarily.

The sentencing court was provided with a psychiatrist’s report from Dr Richardson at the time of the plea and sentencing hearing.  The sentencing judge commented that the applicant was an intelligent man.  The Court of Appeal commented that he was at least of average intelligence.  There is nothing before this Court to suggest that the position is otherwise and that the applicant did not understand the nature of the charge or the significance of the plea being entered.

In the circumstances, there is nothing to persuade this court that it should go behind the plea of guilty.

Some matters raised by the applicant go to whether there is a triable issue.  The applicant suggests that the injuries outlined by the prosecution to the Court based upon Dr Kim’s evidence were not borne out by the evidence provided to the Court.  It appears that Dr Kim’s evidence was not tendered as an exhibit to the Court.  In any event, there was no challenge made by the applicant’s counsel to the description of the medical evidence of Dr Kim as to the complainant’s injuries outlined by the prosecutor to the Court.  Further, there was photographic evidence supporting the injuries was tendered to the Court.  While the applicant’s counsel had indicated that the medical evidence was not available at the time of the hand-up committal, there is no suggestion that it was not available by the time of the sentence.

The applicant further seems to argue that there was no evidence or insufficient evidence to link him to the offence.[8]  While the applicant suggests that other people may have committed the crime, there appears to have been a compelling body of evidence against the applicant as outlined by this Court in R v C.  This included that the applicant had been identified by the complainant’s grandmother, jumping out of the window of the bedroom where the complainant was found crying, without a nappy, and bleeding heavily.  There was forensic testing revealing the complainant’s blood on penile swabs taken from the applicant, other eyewitness accounts of the applicant’s behaviour before and after the offending linking him to the place where the offence occurred and the applicant’s admissions to the police.

Other complaints made by the applicant as to the lack of directions to the jury or the compellability of witnesses are irrelevant, given that there was no trial.

There is nothing raised by the applicant to suggest any real prospect of his establishing that his plea of guilty should not have been accepted or that, even if it were set aside, that he would have an arguable case that a miscarriage of justice occurred by reason of his conviction.

Complaints against Sentence

As I have said, this Court has previously heard and refused an application for leave to appeal against the sentence imposed upon the applicant.  That judgment was delivered in May 1998.  The applicant makes no submissions regarding the previous application.  There is nothing to suggest any identifiable change of circumstances contrary to those considered by the Court of Appeal.

The applicant submits that the learned sentencing judge failed to take into account the mitigating factor that the applicant had cooperated with the authorities and pleaded guilty, saving the Court and the family of the child victim an amount of time.[9]

The respondent concedes that, while the sentencing judge specifically stated that the applicant pleaded guilty, his Honour did not, as required by s 13(3) of the Penalties and Sentences Act 1992 (Qld), expressly identify that he took into account the guilty plea in imposing the sentence.  The respondent, however, submits that compliance with the section can be inferred.  The failure to use the precise words of the section does not invalidate the sentence, but rather necessitates closer examination of the sentence to determine whether the plea has been taken into account.

In the sentencing remarks, the sentencing judge noted that the most that could be said of the applicant’s plea of guilty was that it saved the expense of a trial.  In the R v C, Davies JA agreed with the sentencing judge, stating:

“…he showed no demonstration of remorse of any kind. His plea of guilty can hardly go to that.”

His Honour continued:

“…in imposing the life sentence the learned sentencing judge said that, in his view, this case was one of the worst examples of the offence for which he was sentencing. In my view, his Honour was justified in reaching that conclusion.”

Based on the above, it may be inferred that the plea of guilty was taken into account by the sentencing judge and this Court upon appeal, but was not found to warrant a sentence being imposed other than life imprisonment.  The applicant’s complaint is not made out.

Conclusion

In the circumstances, there has been a lengthy and unexplained delay in bringing this application and there is no evidence that the applicant has suffered a miscarriage of justice, nor that there was any error by the learned sentencing judge or the Court of Appeal.  The application is without merit.  I would order that the application for an extension of time to appeal be refused.

SOFRONOFF P:  I agree.

HENRY J:  I agree.

SOFRONOFF P:  The order of the court is that the application is dismissed.

Footnotes

[1]  [2017] QCA 242 at [29] to [31].

[2] R v Allen [2018] QCA 126 at [6].

[3]  [1999] 2 Qd R 667 at 668.  For a recent application of the approach, see R v Allen [2018] QCA 126 at [6] to [7] per Fraser JA.

[4]  [2008] QCA 75 at [11].

[5]  [2012] 2 Qd R 31 at [42] to [53].

[6]  Applicant’s submissions at p 3.

[7]  Respondent’s submissions at [11.2].

[8]  Applicant’s outline of submissions at p 2, 3, and 5.

[9]  Applicant’s submissions, p 4.

Close

Editorial Notes

  • Published Case Name:

    R v CCE

  • Shortened Case Name:

    R v CCE

  • MNC:

    [2018] QCA 176

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Henry J, Brown J

  • Date:

    02 Aug 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment DC377/97 (No Citation) 15 Dec 1997 Date of Conviction and Sentence.
Appeal Determined (QCA) [1998] QCA 207 27 May 1998 Application for leave to appeal against sentence refused: McPherson and Davies JJA and Thomas J.
Appeal Determined (QCA) [2018] QCA 176 02 Aug 2018 Application for extension of time to appeal conviction and for leave to appeal against sentence refused: Sofronoff P, Henry J, Brown J.

Appeal Status

{solid} Appeal Determined (QCA)