The Queen v Porter[1997] QCA 173

COURT OF APPEAL

DAVIES JA

McPHERSON JA

MOYNIHAN J

CA No 160 of 1997

THE QUEEN

v.

ANTHONY JOHN PORTER Applicant

BRISBANE

DATE 26/05/97

JUDGMENT

DAVIES JA:  This is an application for an extension of time within which to appeal against sentences, the sentences being three - one of six years' imprisonment for dangerous driving causing death and grievous bodily harm and two other sentences, one of aggravated assault occasioning bodily harm and another of unlawful wounding, in each case the sentence being two years' imprisonment.

The applicant is some nine months late in applying for an extension of time within which to appeal, the sentences having been imposed on 20 June last year.  His explanations for that were that, notwithstanding that he was told by the Legal Aid Office that he had 28 days within which to appeal but that counsel had not recommended an appeal, he assumed that he then did not have any right to appeal and it was only since then that he appreciated he had a right.  I find that incredible and in any event that is not, in my view, a satisfactory explanation for delay.

As well, the sentences which were imposed for what were, in my view, shocking crimes, were within the appropriate range of sentences for crimes of this kind and, in my view, if an application were granted, an appeal would have no real prospects of success.  For both of those reasons I would refuse the application.

McPHERSON JA:  Yes, I agree.  Before an extension is granted in a case like this and particularly one in which there has been as long a delay as this, two requirements must be fulfilled.  There must be a satisfactory explanation for the delay and there must be a reasonable prospect of success of the appeal if an extension of time within which to apply for leave to appeal against sentence is granted.

As to the first requirement, there was a letter of 21 June 1996 which has been referred to by the learned presiding judge.  It came from Legal Aid and informed the applicant of his right of appeal within 28 days.  As to the second question, it should be said that the learned sentencing judge, in a very clearly and forcefully expressed series of sentencing remarks, arrived at the conclusion he did because of the seriousness of this particular instance of dangerous driving. 

It involved not momentary inattention or anything of that kind, but a prolonged bout of reckless driving along an important highway, which caused death and serious injury to those in an oncoming vehicle.  Mrs Nordling survived, but with severe head injuries.  The collision killed her husband and her father, fractured the leg of her little daughter and fractured the skull of her 10 month old baby. 

There was no justification at all for what the applicant did and no explanation for it beyond that he had been drinking and was, on all the evidence, apparently going to sleep at the wheel. 

In those circumstances there can be no question of granting leave to appeal or of an extension of time within which to appeal.  I agree with the order proposed by the presiding judge.

MOYNIHAN J:  I agree with the order proposed for the reasons given.

DAVIES JA:  The application is refused.