- Unreported Judgment
COURT OF APPEAL
CA No 57 of 2018
DC No 9 of 2015
BARCLAY, Roy Reginald
THURSDAY, 2 AUGUST 2018
HENRY J: The applicant pleaded guilty to the following offences and received the following concurrent sentences of imprisonment:
(1) assault occasioning bodily harm, 12 months imprisonment;
(2) wilful damage, six months imprisonment;
(3) entry of the vehicle with intent in company at night, three years imprisonment;
(4) malicious act with intent, 10 years imprisonment;
(5) burglary and stealing, four years imprisonment.
A period of 323 days presentence custody was declared taken to be imprisonment already served under the sentences. The conviction for malicious act with intent was declared to be a conviction of a serious violent offence with the consequence the applicant must serve 80 per cent of his 10 years imprisonment.
The sentences was imposed in the Mount Isa District Court on 26 February 2015. Over a year later, on 2 March 2016, a notice of application for extension of time within which to give notice of an application for leave to appeal sentence was filed on the applicant’s behalf.
On 17 August 2016, a notice of abandonment of that application was filed.
On 19 March 2018, over three years after the original sentence, a further notice of application for extension of time within which to give notice of application for leave to appeal the sentence was filed on the applicant’s behalf. It is the application now before the Court.
Rule 69 of the Criminal Practice Rules 1999 (Qld) provides that when a notice of abandonment of an application for leave to appeal or extension of time within which to appeal is given to the Registrar, the “application is taken to be refused by the Court”. However, r 69(4) provides the Court may set aside the abandonment and reinstate the application “if the Court considers it necessary in the interests of justice”.
It follows that the applicant’s application for an extension of time within which to give notice of an application for leave to appeal sentence is deemed to have previously been refused by the Court. On one view, the application should, therefore, be set aside and the applicant should be required to formally apply to set aside the abandonment and reinstate the original application. However, in circumstances where there is an absence of any merit to the applicant’s position, the preferable course in the interest of efficiency and finality is to treat the present application as an application to set aside the abandonment and reinstate the original application.
The applicant has advanced no evidence providing any satisfactory explanation why his initial application was filed over a year out of time or why it was abandoned or why there has been another further delay before seeking to re-enliven the matter. Such explanations as have been proffered relate to his denial of legal funding and the disadvantages he is under in acting for himself.
The respondent has helpfully equipped the Court with a transcript of the sentence proceeding, the sentencing remarks and copies of relevant exhibits.
Those materials demonstrate the offences to which the applicant pleaded guilty were serious and the circumstances of his malicious act with intent were especially grave. The main offending, committed two days after the offence of assault occasioning bodily harm for which he was also sentenced, involved a very violent home invasion in company involving a plan to torture the victim to force him to disclose where drugs and money were. The facts advanced at sentence show the applicant was the lead player in executing the plan, being the person who inflicted grievous bodily harm upon the victim, by striking him repeatedly with a branch and fists, including while the victim was being held down. The head injuries inflicted were extensive and extremely serious. The victim has been left blind in one eye, facially deformed and unable to chew without discomfort. He suffers headaches and chronic pain.
The applicant comes from a remote indigenous community and had a disadvantaged upbringing and background. He was only 21 when sentenced and cooperated with the administration of justice by pleading guilty. However, he had already accumulated a concerning criminal history. The subject offending occurred when he was on probation and less than three months after the expiry of his parole in connection with an earlier sentence.
The learned sentencing judge recognised the head sentence of 10 years entailed the automatic consequence of a serious violent offence declaration and the requirement the applicant must serve at least 80 per cent of that term. However, he rightly placed weight upon the gravity of the offending and correctly observed on the authorities before him that the potential sentencing range extended higher than the 10 years imprisonment ultimately imposed.
The sentence was undoubtedly a significant one, as it should have been. While another judge might have imposed a slightly lower sentence, it does not appear that the sentence actually imposed was beyond the range of a sound exercise of sentencing discretion, nor is any error of principle apparent from a perusal of the sentencing remarks.
It is clear that one of the issues the applicant would seek to agitate, namely that he was not a main player, is without support and contrary to the undisputed facts advanced at sentence. His complaint as to manifest excess is doomed to fail.
Whether approaching the matter as an assessment of whether it is in the interests of justice to allow the application to be reinstated or as an assessment of the application’s underlying merit, the application must fail.
I would order the application be dismissed.
SOFRONOFF P: I agree.
BROWN J: I agree.
SOFRONOFF P: The order of the Court is that the application is dismissed.
- Published Case Name:
R v Barclay
- Shortened Case Name:
R v Barclay
 QCA 175
SOFRONOFF P, HENRY J, BROWN J
02 Aug 2018
No Litigation History