R v Jensen[2000] QCA 38

COURT OF APPEAL

McMURDO P

PINCUS JA

WILLIAMS J

CA No 337 of 1999

THE QUEEN

v.

JENSEN, Michael Stephen Applicant

BRISBANE

DATE 23/02/2000

JUDGMENT

THE PRESIDENT:  Mr Justice Pincus will deliver his reasons first.

PINCUS JA:  There is before us an application for extension of time within which to apply for leave to appeal against sentence.

The applicant came before the late Acting Judge Copley QC on 7 July 1995 and then was dealt with in this Court on 11 June 1996, the reference being CA 307 of 1995.  This Court's judgment was given on an appeal by the Attorney-General against sentences imposed by His Honour Acting Judge Copley QC, the applicant having been convicted following pleas of guilty to one count of rape and 13 counts of indecent dealing with circumstances of aggravation.

The learned primary Judge had sentenced the applicant to five years' imprisonment for the rape with a recommendation of eligibility for consideration for parole after two years and that was raised in this Court to 11 years with a recommendation of eligibility for parole on 29 August 1998.

We were informed today that the applicant has, in fact, applied for parole but has not yet been granted it.  The sentences I have mentioned were concurrent with sentences totalling 10 years from 29 August 1990 imposed in Western Australia for offences unrelated to those presently in question.  The sentences imposed in the District Court did not effectively add anything to the terms of imprisonment imposed in Western Australia.

It is first necessary to consider this Court's jurisdiction.  In Pettigrew [1997] 1 Qd R 601, it was held that this Court has jurisdiction to alter an order made on an application for leave to appeal against sentence where the first Court has proceeded on an indisputably erroneous basis.  In that case, the reason for the error was that the Court was misinformed as to the effective total sentence being served in respect of all sentences.  Shortly after Pettigrew's case was decided there was enacted the Criminal Law Amendment Act 1997 which replaced the former section 188 of the Penalties and Sentences Act 1992, permitting this Court to reopen an appeal which has resulted in the imposition of a sentence decided on a clear factual error of substance.  The specific power of reopening where this Court has imposed a sentence on the basis of factual error must now be our guide, and in such cases we should not reopen unless the factual error is clear and is one of substance.  It has been drawn to my attention that there is a useful discussion of the effect of section 188 in its present form in the decision of this Court in Davis [1999] QCA 486 decided on 24 November 1999 and that is to be found in the reasons of the President, Justice Thomas and Justice Williams.

In my opinion the onus must be upon the applicant for reopening to prove a clear factual error, rather than one which may or may not have occurred.  In this particular case, there is no application under section 188 but in my view we should so far as necessary treat the application as being brought under this section.  If there is good reason to think that a clear factual error might have been made although there is no satisfactory proof of that by the applicant, the Court might in an appropriate case consider looking into the matter further or having it looked into, for example by using the Court's powers under section 671B of the Criminal Code.

The grounds of application set out by the applicant need not be set out in full.  They include the general assertion that evidence supplied to the Court by the prosecution was fabricated and manufactured; that a certain memo in which a report on the applicant was based was in turn based upon a further report; that that further report included a fabrication; that deliberate action on behalf of Queensland authorities and Western Australian authorities deprived the Court of evidence showing substantial rehabilitation; that counsel for the applicant coerced and manipulated him in order to suppress evidence of rehabilitation in a report by one Bladwell and others; that the Court erroneously thought that no remorse was indicated; that certain people were deliberately ordered by Western Australian authorities not to provide a report on the applicant; and what I think is the central point, that a report by a Mr Ryan contained untrue statements.

In addition there are general allegations of legal error on the part of the Court of Appeal which are not in my view of any great weight.  In a further document recently sent to the Court the assertion that the Ryan report was a fabrication was made.  The applicant also complained that his counsel before his Honour Acting Judge Copley QC and his counsel who appeared on the Attorney's appeal against sentence both failed to challenge the Ryan report, contrary to the applicant's instruction.

The applicant also refers to difficulty which he says he had in having an approach made to the High Court challenging this Court's decision.  It does not appear to me that this is relevant to the present application, whether it is treated as an extension of time or one under section 188, nor does it seem material that the applicant engaged in correspondence with various authorities about his problems.

In the reasons of the Court on the Attorney's appeal, given in June 1996, a report by Mr T D Ryan, a community correctional officer, was said to be very much against this applicant (who was then respondent) and their Honours elaborated in their reasons upon that proposition.  The presentence report prepared by Mr Ryan dated 24 April 1995, which is in the record of proceedings for the 1995 Attorney's appeal, contains reference to the question of remorse and a conclusion is reached unfavourable to the applicant.  Mr Ryan mentioned in his report a letter by the applicant dated 17 May 1995 indicating that "The Queensland Corrective Services Commission staff also believed that he had done sufficient rehabilitation to warrant release."  The Ryan report goes on:

"Specifically he stated that Anwen King, psychologist, and Sandra Bollus, counsellor, of the Arthur Gorrie Correctional Centre had stated to him that, 'There was no more that prison could offer me in regard to rehabilitation due to the large amount of work I'd done and that any further punishment would seriously detract from the rehabilitation I'd already commenced.' The writer has had contact with Wendy Graindler, programs manager, Arthur Gorrie Correctional Centre, subsequent to receipt of Mr Jensen's letter and has been informed by Ms Graindler who responded on behalf of Ms Bollus and Ms King that no such comments were made by those individuals."

The material presented to this Court by the applicant includes two documents which may be relevant to the passage just quoted.  One purports to be a report by one Anwen King.  It bears the date in once place 12 August 1996 and in another 28 October 1994.  It appears that the latter is the correct date, that being the time which the applicant was transferred to Queensland from Western Australia.  The report says that it was not appropriate to begin any psychological intervention as the applicant was only in Queensland to face Court.  It says that the applicant expressed remorse and has insight into the consequences of his actions to the victim and does not present any risk of reoffending.  Then there is what purports to be a copy of a report by Ms Bollus dated 6 January 1995 which says that the applicant "seems to be generally remorseful about his offences which occurred many years ago", and makes other positive remarks about him.

A letter from the applicant to Mr Ryan dated 17 May 1995 refers to Ms King and Ms Bollus and attributes to both of them, with a minor change, the statement quoted above:

"That there was no more that prison could offer me in regard to rehabilitation due to the large amount of work I'd done and that any further punishment would seriously detract from the rehabilitation I'd already completed."

The letter then goes on to refer to another psychologist, "Sam", who "also confirmed this to me".  It goes on, "All three understood the trauma I had been through with my first wife and said I was suffering from this battered husband syndrome."  Mr Ryan's report said that he had contact with Wendy Graindler, program manager at Arthur Gorrie Correctional Centre and was informed by Ms Graindler on behalf of Ms Bollus and Ms King that no such comments were made by those individuals.

This matter was referred to, among other similar points, in the reasons of the Court given in 1996 as one of some significance.  The documents which have been referred to, that is, the reports of Ms King and Ms Bollus which have been produced by the applicant, do not contain the statement which the applicant attributes to them nor any statements to the same effect.  What the applicant has done is to unearth two documents recording impressions Ms King and Ms Bollus apparently obtained in interviews some substantial time before he came to the District Court to be sentenced.  There are also, in the material presented to us, favourable opinions given after the sentence was imposed and no doubt these could be considered, if relevant, by the parole authorities.

In his lengthy submissions to the sentencing Judge, then counsel for the applicant made substantial complaint about the ill-treatment of the applicant by his wife and in an apparently careful exposition of the facts, counsel placed before the Judge a number of documents dealing with the applicant's prison history.  The submissions dealt with the applicant's behaviour in gaol and documents were tendered relating to that point.

The only point of substance of a specific kind in support of the argument that the previous sentence was done on a false basis is in my view the criticism of what Mr Ryan told the Court and in my opinion that point fails.  The applicant is left with a more general basis for reopening, that he has documents showing that at various times people who saw him formed a favourable opinion of his attitude and of his remorse, but that is not enough to warrant reopening the 1995 proceedings which culminated in a judgment in 1996.

The impression given by the content of the record which was before this Court in 1996 is that counsel who appeared on sentencing before the primary Judge performed his duty with care and much attention to detail, being anxious to place before the primary Judge everything of substance which was likely favourably to influence the sentencing.

It is unnecessary to go into details of the Queensland offences committed.  They were most reprehensible.  The 11 year sentence of imprisonment imposed in this Court began on 7 July 1995 terminating on 7 July 2006 and the Western Australian sentences of 10 years from 29 August 1990 would have terminated on 29 August 2000.  The result of the Queensland sentences, then, was to add rather less than six years to the existing sentences.  A six year sentence was clearly less than would have been imposed had the applicant not been subject to the Western Australian sentences.

If one looks at the matter broadly and considers whether there has been shown any factual or legal error requiring correction the answer must be that there has not.  In my opinion the application for an extension of time should be refused.

THE PRESIDENT:  I agree that the applicant has not established a clear factual error of substance such as would warrant a reopening of the sentence under section 188 of the Penalties and Sentences Act 1992 for the reasons given by Mr Justice Pincus.  I also agree with the order he proposes.

WILLIAMS J:  I agree.

THE PRESIDENT:  The order is the application for extension of time is refused.