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R v Adams

 

[2009] QCA 51

 

SUPREME COURT OF QUEENSLAND

  

CITATION:

R v Adams [2009] QCA 51

PARTIES:

R
v
ADAMS, Timothy John
(applicant)

FILE NO/S:

CA No 357 of 2008

DC No 272 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

13 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

9 March 2009

JUDGES:

Keane and Muir JJA and Daubney J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for extension of time to apply for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where applicant made claim without evidence that solicitor filed Notice of Appeal on applicant's behalf in circumstances where no Notice of Appeal filed – whether appeal has reasonable prospect of success – whether time for appeal should be extended

R v Newman (2007) 172 A Crim R 171; [2007] QCA 198, cited

R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited

COUNSEL:

The applicant appeared on his own behalf

P F Rutledge for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

  1. KEANE JA:  On 17 June 2008 the applicant was convicted on his own plea of seven counts of rape, two counts of sexual assault, one count of burglary by breaking with violence, one count of attempted rape and one count of robbery.  On 17 June 2008 he was sentenced to 10 years imprisonment on each of five counts of rape.  He was sentenced to lesser concurrent terms of imprisonment in respect of the other offences.  The conviction in respect of each of the five counts which attracted the sentence of 10 years imprisonment was declared to be for a serious violent offence under s 161B of the Penalties and Sentences Act 1992 (Qld).
  1. On 18 December 2008 the applicant filed an application for an extension of time within which to seek leave to appeal against the severity of his sentence.

Delay

  1. The applicant, in papers filed in support of his application, sought to explain the delay attending his attempt to challenge his sentence on the basis that his former solicitor told him that an appeal had been lodged when that was, in fact, not the case.
  1. This explanation involved an allegation of dishonest conduct against an officer of the court. It was not supported by any evidence. If an affidavit deposing to this explanation had been sworn by the applicant, his former solicitor would have had an opportunity to give evidence in response, and the Court would have been able to determine whether there was any substance in the applicant's explanation. On the hearing of the application, the applicant's explanation seemed to diverge somewhat from that which he had put in writing. The applicant suggested that he had been told that an appeal would be filed by his lawyers, and that it was not filed because the applicant could not afford the associated expense.
  1. As matters stand, the Court is unable to conclude that there is a satisfactory explanation for the applicant's lengthy delay in seeking to appeal against his sentence.

Prospects of success

  1. This is not a case where it can be seen that the applicant has such strong grounds for challenging the sentence which was imposed on him that the absence of a satisfactory explanation for his delay should be disregarded in the interests of remedying an apprehended miscarriage of justice.[1]
  1. The applicant was 23 years old when he committed the offences in question. He was 25 years old when he was sentenced.
  1. The complainant was a 22 year old woman with whom the applicant had lived in a sexual relationship for two years. The relationship ended on 26 December 2006, although they continued to live together for a few weeks. During this period they slept in separate rooms. The applicant moved out of the house on 6 February 2007.
  1. The offences in question occurred on two separate occasions. The first occasion was on a date unknown between 25 December 2006 and 22 February 2007 when the applicant entered her home and stole some of her underwear.
  1. The five incidents of rape which attracted the sentence of 10 years imprisonment occurred on 21 February 2007. On that date the applicant, wearing a dark coloured stocking over his head and disguising his voice in an apparent attempt to conceal his identity, entered the complainant's house, bound her hands in front of her body with tape and made her lie on her stomach. He smacked her head around to the front when she tried to look at him. He told her not to look at him. He proceeded to penetrate her vagina digitally and then had vaginal and anal intercourse with her. The complainant began to cry and struggle saying that he was hurting her.
  1. The applicant taped the complainant's mouth and ankles and then took money from her purse. He threatened to come back and kill her if she told anyone of the incident. He penetrated her anus and vagina with his fingers before leaving her house.
  1. The complainant has suffered depression and anxiety as a result of her ordeal. Her anxiety was such that she was forced to sell her house.
  1. The applicant had an unfortunate upbringing in that his parents separated when he was young and his father was gaoled for serious sexual offences when he was 13 years old.  He left school at the age of 14.  He has a history which involves one offence of robbery with actual violence.
  1. The applicant's work record is good. He has a daughter who is seven years of age.
  1. The applicant pleaded guilty on the first day of trial, and only after DNA evidence established that his blood had been located at the house where the offences occurred. While his late plea of guilty had some utilitarian value – which the learned sentencing judge recognised – it could not be regarded as being of substantial utilitarian value or as evidencing any remorse on the applicant's part.
  1. The applicant subjected the complainant to a cruel and degrading and painful ordeal. The offences occurred in the complainant's own home where she was entitled to feel safe and secure. Her ordeal was not made any the less painful by the applicant's bizarre masquerade.
  1. It cannot sensibly be said that the sentence was manifestly excessive. At the sentencing hearing the applicant's Counsel accepted that the range of sentences was between nine and 11 years imprisonment. The recent decision of this Court in R v Newman[2] where comparable cases are reviewed confirms that for violent sexual offences of this kind that range was appropriate for a case such as the present.
  1. I do not consider that a miscarriage of justice occurred in respect of the applicant's sentence. There is no real likelihood that the applicant's sentence would be reduced if an application for leave to appeal against sentence were to proceed.
  1. Accordingly, there is no good reason to grant an extension of time to enable such an application to proceed.
  1. For these reasons I would refuse the application for an extension of time.
  1. MUIR JA:  I agree with the reasons of Keane JA and with the order he proposes.
  1. DAUBNEY J:  I respectfully agree with the reasons for judgment of Keane JA, and with the order proposed.

Footnotes

[1] Cf R v Tait [1999] 2 Qd R 667 at [5].

[2] [2007] QCA 198 at [31] – [41].

Close

Editorial Notes

  • Published Case Name:

    R v Adams

  • Shortened Case Name:

    R v Adams

  • MNC:

    [2009] QCA 51

  • Court:

    QCA

  • Judge(s):

    Keane JA, Muir JA, Daubney J

  • Date:

    13 Mar 2009

Litigation History

Event Citation or File Date Notes
Primary Judgment - - Criminal
Appeal Determined (QCA) [2009] QCA 51 13 Mar 2009 -

Appeal Status

{solid} Appeal Determined (QCA)