The Queen v Stringer[1998] QCA 327

COURT OF APPEAL

McMURDO P

THOMAS JA

CULLINANE J

BRISBANE

DATE 16/09/98

JUDGMENT

THE PRESIDENT:  This is an application for extension of time within which to apply for leave to appeal against sentence.  The applicant is serving his term of imprisonment in Lotus Glen Correctional Centre and has requested not to appear personally in his application today.  He has asked that the application be dealt with in accordance with the written submissions he has sent to the Court.

The applicant was convicted in the District Court at Innisfail on 17 February 1998 of one count of rape and was sentenced to four years imprisonment.  He pleaded guilty on the second day of the trial.  The application for extension of time within which to appeal is dated 10 August 1998. It was therefore well over four months out of time.

The applicant's written submissions indicate that he has always been desirous of appealing against the sentence imposed and has discussed this with his various legal representatives at different times.  He understood Legal Aid Queensland were to submit an application but the person handling his case left L.A.Q. before doing so.

He then sought to engage private solicitors in Cairns but could not afford them.  Another firm of solicitors attended on him and sought Legal Aid on his behalf.  After three weeks this was not granted.  He has appealed from that decision and is still awaiting the outcome.  In any case he decided he should appeal to the Court without legal representation and represent himself.

There is no independent evidence supporting the applicant's claims of his difficulties with legal representation although at face value he seems to have established some reason for the delay in making this application.  It is noted, however, there is some conflict between his claims in his submissions to this Court and in the extract from his application for Legal Aid which he has attached to his submissions.

We have had the opportunity today to read the sentencing submissions made by barristers and the sentencing Judge's remarks in this matter. 

The circumstances of the offence are as follows.  The applicant, who had been drinking heavily and smoking marijuana, was staying overnight at the house of his employer and the 20 year old complainant.  The complainant was asleep naked next to her de facto in their bedroom and awoke during the night to find the applicant on top of her having intercourse with her.  When she awoke the applicant rolled off her saying, "Shh ... sorry mate".  He then left the room.

The effects on the complainant of this offence have been very detrimental and she was still receiving counselling at the time of sentence, some two years after the offence occurred.

On these facts the sentence imposed seems a lenient one and indeed was within the range sought by defence counsel, although defence counsel also requested an early recommendation for parole.  Four years imprisonment for the offence of rape on these facts does not seem a heavy sentence.

The reasons put forward by the applicant for delay in applying to this Court for leave to appeal against sentence may, if established, justify an extension of time within which to appeal against sentence, but more importantly there are no real or substantial prospects of success of any appeal on the facts of this case.  I would therefore refuse the application.

THOMAS JA:  I agree.  In relation to the quantum of the sentence I would confine my remarks to expressing the view that, having regard to the submissions made and the circumstances, there are no reasonable prospects of a successful appeal.  I accordingly agree that leave to extend time should be refused.

CULLINANE J:  I also agree that the application should be refused for the reason given by the President.

THE PRESIDENT:  The order is the application for extension of time within which to seek leave to appeal against sentence is refused.