- Unreported Judgment
COURT OF APPEAL
CA No 304 of 2001
306 of 2001
348 of 2001
JAMES FRANKLIN BURTONApplicant
THE PRESIDENT: The applicant applied for an extension of time within which to seek leave to appeal or, alternatively, an application to reopen his sentence under s.188 Penalties and Sentences Act 1992 (Qld) in respect of sentences imposed on 9 August 1993 for two offences of armed robbery, that is, CA No. 304 of 2001.
He makes similar applications in respect of the sentence imposed in the District Court on 18 November 1994 for two further counts of armed robbery, CA No. 306 of 2001.
He further applies for an extension of time within which to appeal from the sentence imposed on 10 March 1994 in the District Court for the offence of contempt of court, CA No. 348 of 2001.
The history of these matters is complex. On 9 August 1993 the applicant was sentenced in the District Court to nine years' imprisonment for two armed robberies. He was given no early recommendation for parole.
On 10 March 1994 he was sentenced to 12 months' imprisonment cumulative upon that sentence for the offence of contempt of court. The contempt was his refusal to give evidence against a co-accused in the two robberies which occurred in 1993. Ultimately the applicant was given a recommendation for parole to take effect on 9 May 1998, three months beyond the parole date applicable under the original nine-year sentence.
The applicant then underwent a religious conversion, causing him to frankly and candidly admit to a series of other offences which he had committed; the police were otherwise unaware of his involvement in these offences. On 18 November 1994 he pleaded guilty to these offences including a further two counts of armed robbery. He was sentenced to nine years concurrent imprisonment. Ultimately, the Judge recommended the applicant be released on parole on 9 May 1998.
The applicant's application for leave to appeal against the original sentence of nine years' imprisonment imposed on 9 August 1993 was refused (see R v Burton CA No. 31 of 1994 28 March 1994). The Court described the sentence as "a severe sentence; but it is not ... one that is so severe as to justify interference in this Court".
The applicant's application for leave to appeal against sentence in respect of the sentence of nine years imposed in the District Court on 10 March 1994 was refused by the majority (see R v Burton CA No. 492 of 1994 24 August 1994). McPherson JA noted:
"There is little doubt that the applicant's assistance and evidence has been of great advantage to the police and prosecution, and that it has been provided at considerable risk and detriment to himself. Offenders have been brought to justice who, without the applicant's help, would otherwise have escaped prosecution, conviction and punishment. The applicant merits special recognition for the course he has adopted and for the hardship which, in consequence, he is now experiencing. The most we can do, however, is to record these matters here and direct that the applicant be provided with a copy of these reasons to assist him in any application he may make to the Board for consideration for early parole under s.166(4) of the Corrective Services Act."
Thomas J (as he then was) remarked:
"If the executive (in the form of the Community Corrections Board) identifies his assistance as outstanding, his risk as grave, and his rehabilitation as convincing, and sees fit to entertain a 'special circumstances' application under s.166(4) of the Corrective Services Act, then as a member of the community one may applaud the decision."
This Court, having dealt with the applications for leave to appeal against sentence in respect of the sentences involved in CA Nos. 304 and 306 of 2001, cannot entertain a second appeal. The applicant's right to appeal to this Court is exhausted (see R v Corrigan  QCA 401 CA No. 205 of 2001, 24 September 2001). Any further appeal from these decisions can only be by special leave to the High Court.
The applicant also applies to reopen those sentencing proceedings under s.188 Penalties and Sentences Act 1992 (Qld). As this Court refused the applications for leave to appeal it did not impose a sentence upon the applicant. Section 188 Penalties and Sentences Act 1992 (Qld) does not allow this Court to reopen the sentence imposed in the District Court.
The respondent has provided the Court with material which seems to demonstrate the applicant's real complaint. Corrective Services' Centre Management records show that the applicant was released on parole in respect of the combined sentence for the robbery offences and the contempt on 17 February 1999. That parole was suspended on 14 January 2000. The suspension was lifted and he was released on parole again on 2 January 2001. He was returned to custody on 8 August 2001 and the parole order was cancelled on 1 October 2001. The applicant has been convicted of a minor drug offence and a street offence and it seems that those offences were the reason for his most recent cancellation of parole. His earliest discharge is now his full-time discharge, namely 3 January 2004, although he is eligible for Post Prison Community Based Release forthwith.
It seems that under s.75 Corrective Services Act 2000 (Qld) he is ineligible for remissions because during his period of imprisonment he was released on parole under an order made under s.165 Corrective Services Act 1988 (Qld).
The applicant places reliance on s.11 Criminal Code (Qld). Accepting that that is the effect of s.75, s.11 Criminal Code (Qld) has no application because the acts which constituted the offences upon which he has been sentenced were offences against the law in force when he was charged with those offences; nor have the penalties for the offences for which he was sentenced been increased since he committed the offences. What has changed is the method of calculating remissions.
Nor does s.16 Criminal Code (Qld) have application to the facts of this case which is not an instance of someone being twice punished for the same offence.
The applicant's difficulties relate to the Corrective Services' decision as to parole and new laws relating to remissions. There is nothing this Court can do in respect of those matters to assist the applicant.
As to CA Application No. 348 of 2001, it is well out of time. The application for leave to appeal is dated 5 November 2001 and the extension of time application is dated 30 November 2001. The sentence was imposed on the 10th of March 1994, seven and a half years earlier.
The applicant gives as his reason for delay the fact that after many years in gaol he has learned to read and write and now has a better understanding of the justice system. This is hardly a sufficient explanation for not lodging an appeal for so many years.
Although the applicant has not previously formally applied for leave to appeal against the sentence for contempt, it is noteworthy that the circumstances of that sentence were taken into account fully by this Court in refusing leave to appeal in R v. Burton CA No. 492 of 1994 24 August 1995.
The applicant now suggests that his legal representation must not have been helpful because of the history of judicial error in his case and the need for resentencing on a number of occasions. Any mistakes that were made have been corrected. The applicant has not established in the proper form a complaint of substance against his legal representatives.
He also suggests that insufficient weight was given to his plea of guilty and his assistance to the authorities on the contempt sentence. These matters were fully canvassed, however, in the earlier appeals, CA Nos. 31 and 492 of 1994.
In the circumstances, there is no realistic prospect that if an extension of time were granted, any application for leave to appeal against sentence would be successful.
The extension of time should be refused.
I would refuse all applications.
WILLIAMS JA: I agree.
MUIR J: I agree.
THE PRESIDENT: That is the order of the Court.
- Published Case Name:
R v Burton
- Shortened Case Name:
R v Burton
 QCA 114
McMurdo P, Williams JA, Muir J
22 Mar 2002
No Litigation History