R v Maxfield[2001] QCA 123

COURT OF APPEAL

McMURDO P

McPHERSON JA

HOLMES J

CA No 296 of 2000

THE QUEEN

v.

LARRY WILLIAM MAXFIELD

BRISBANE

DATE 02/04/2001

JUDGMENT

HOLMES J: On the 7 January 2000 the applicant was sentenced to five years' imprisonment with a recommendation for eligibility for release on parole after two years for an offence of armed robbery.

In August 2000 his appeal against sentence was dismissed. That appeal was largely based on the proposition that the recommendation for early eligibility for parole should be replaced by an early suspension of sentence because of the applicant's poor prospects of obtaining parole, given his previous history.

At issue in the present application is the applicant's ability to obtain credit for the period he spent in custody between lodgement of his appeal and its determination.

Section 75(3) of the Corrective Services Act 1988 gives an appellant the option of acquiring pending the determination of his appeal that he be treated as a prisoner serving a term of imprisonment. If he does so his detention in custody, pending appeal, is treated as part of his sentence subject to contrary direction by this Court. He is otherwise deemed to be specially treated as an appellant. 

Section 671G(3) of the Criminal Code provides that the time during which an appellant, if in custody, is specially treated as an appellant is not to count as part of his term of imprisonment under his sentence. 

In the present case Mr Maxfield elected to be specially treated as an appellant, that is, pursuant to Section 75(2) treated as an unconvicted prisoner on remand, with the consequence that his sentence is deemed to commence only on the day on which the appeal was determined, that is, the 8 August 2000.

He says that he elected to remain a remand prisoner because he considered that he was making progress with the programs he was involved at the remand centre where he was held. He says he did not appreciate the implications of doing so and was not aware he would not receive credit for the time served between sentence and determination of the appeal.

The present application is made by him in the hope of rectifying that situation. Section 671G(3) which precludes the time spent pending determination of appeal from being counted as part of sentence is expressed to be subject to any directions of this Court on any appeal.

Mr Maxfield says he initially appeared unrepresented to argue his appeal in May 2000 and was granted legal aid after the Court's intervention. In the sequence of events in which he had first to appear unrepresented and then obtained representation late he omitted to seek or ask his counsel to seek a direction.

It seems extremely probable that had such a direction been sought upon the hearing of Mr Maxfield's appeal in June 2000 it would have been granted. In R v Jones (1998) 1 Qd R 672 at 678, this Court observed that such a direction would ordinarily be given in the absence of exceptional factors.

In R v. Harrington (1996) 88 A Crim R 550 and R v Marshall [2000] QCA 420, the Court has allowed applications for directions, notwithstanding in each case the lapse of a considerable period of time since the determination of the appeal in question. The Crown in this case does not, in fact, oppose the giving a direction.

I would dismiss the application for extension of time to appeal but would give a direction that the period of time during which the applicant was specially treated as an appellant within the meaning of Section 671G(3) of the Criminal Code is to count as part of the term of his imprisonment under his sentence.

On the applicant's account the relevant period is from 19 January 2000, when he made his election, to the 8 August 2000 when the appeal was determined. I calculate that period since the year 2000 was a leap year at 202 days, inclusive of the commencing date but not including the date of the determination of the appeal; but no doubt the appropriate authorities are able to establish precisely the period effected.

PRESIDENT: I agree.

McPHERSON JA: I agree.

PRESIDENT: The order is that the application is dismissed and the period of time during which the applicant was specially treated as an appellant within the meaning of Section 671G(3) of the Criminal Code is to count as part of the term of his imprisonment under his sentence.

PRESIDENT: Yes. You understand what's happened, Mr Maxfield?

PRISONER: Yes, your Honour.

PRESIDENT: Yes. You've got what you wanted. Yes.

PRISONER: May I say something please, your Honour?

PRESIDENT: Well‑‑‑‑‑

PRISONER: Oh, sorry. When my appeal was originally heard part of the grounds of dismissing my appeal was the Chapter 17 of the Sentence Management Act and the new Sentence Management Act weren't available to the prosecution to put before the Court. I have four copies with me that I would like the Court to have.

PRESIDENT: Well‑‑‑‑‑

PRISONER: Just simply because I have cases documented in the newspaper where the grounds of my appeal was dismissed on are still occurring and I believe the Court needs to be able to have copies of the documents.

PRESIDENT: It's not the venue to do it. Your application to this Court related solely to the declaration of the time served.

PRISONER: Yes. I understand that. 

PRESIDENT: Do you understand that?

PRISONER: Yes, I understand that.

PRESIDENT: So if you - there's probably another venue where you might like to forward that perhaps in the case of a prisoner who wishes to make the point or if you wish to sent it to the Court well you can do so but it's not the venue‑‑‑‑‑

PRISONER: Okay.

PRESIDENT: ‑‑‑‑‑now to do it here in this application.

PRISONER: Yes, your Honour.

PRESIDENT: Yes. All right then. Call the next matter.

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