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R v Bayliss[2002] QCA 135

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

DELIVERED ON:

12 April 2002

DELIVERED AT:

Brisbane

HEARING DATE:

18 March 2002

JUDGES:

McMurdo P, Muir and Philippides JJ

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

ORDER:

Application refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT - where applicant pleaded guilty to one count of unlawful wounding – where applicant filed application for extension of time for leave to appeal against sentence five months out of time – where applicant gave reasons for delay - whether applicant has reasonable prospect of success in an appeal against sentence

CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – MISCELLANEOUS MATTERS – OFFENCE COMMITTED WHILE ON BAIL OR PROBATION AND EFFECT OF BREACH OF PROBATION - where offence committed while applicant on parole – where little prospect for release on early parole – whether applicant eligible for remission of his sentence – where s 207B

Corrective Services Act 1988 extinguished applicant’s eligibility for remission when he was released on parole

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON - where complainant was the applicant’s older brother – where mitigating factors - where sentencing judge took into account all the mitigating factors – where sentence not manifestly excessive

Corrective Services Act 1988 (Qld) (repealed), s 207B
Corrective Services Act 2000 (Qld), s 75, s 268A, s 268B
Penalties and Sentences Act 1992 (Qld), s 188

COUNSEL:

Applicant appeared on his own behalf

B G Campbell for the respondent

SOLICITORS:

Applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

[1] McMURDO P:  This is an application for an extension of time to file an application for leave to appeal against sentence. 

[2] The applicant pleaded guilty on 4 May 2001 to unlawful wounding.  He was sentenced to 18 months imprisonment cumulative upon a sentence already being served and was recommended for eligibility for release on parole on 4 October 2001.

[3] The applicant did not file his application for an extension of time within which to apply for leave to appeal against that sentence until 5 November 2001, five months out of time.  The applicant gives the following reasons for this significant delay.  First, he made an unsuccessful application for a reopening of the sentence under s 188 Penalties & Sentences Act 1992 (Qld) before the sentencing judge on 24 August 2001.  Second, he made enquiries with police and the CJC as to why the complainant was not charged with an offence arising out of the circumstances surrounding the unlawful wounding.  Third, he emphasises that it took time to research material for this application. 

[4] Whilst this provides some explanation for the delay, albeit unsworn, it is pointless to now extend time unless the applicant has some reasonable prospects of success in any appeal against sentence. 

[5] The applicant is now 31 years old.  He has an extensive criminal history for offences of dishonesty commencing in the Nambour Children's Court in 1981.  In 1987 he was placed on probation in the Redcliffe Magistrates Court for property offences.  In 1989 he was convicted and fined in the Redcliffe Magistrates Court for drug offences and breach of probation.  He was convicted of further property offences and drug offences in 1992 and 1994.  On 31 July 1995, he was sentenced to 18 months imprisonment with a recommendation for parole after six months for receiving and false pretences.  In October that year he was sentenced for further property offences and for the offence of robbery to an effective term of seven years imprisonment with a recommendation for parole after three years.  The facts of the robbery were that, whilst addicted to prescription drugs, he obtained money by handing a bank teller a withdrawal slip containing a threat to discharge a bomb if money were not given to him. 

[6] The applicant was released on parole under s 165 Corrective Services Act 1988 (Qld) (repealed) ("the 1988 Act") on 24 July 2000, after serving four years and nine months of that sentence.  He committed the offence of unlawful wounding whilst on parole on 19 January 2001.

[7] When the applicant was sentenced on 4 May 2001 his sentence was subject to the 1988 Act.  The Corrective Services Act 2000 (Qld) ("the 2000 Act") came into operation on 1 July 2001.

[8] The applicant who represents himself in this appeal, submits that he has little  prospect of early release on parole.  This is consistent with his counsel's statement at sentence that the applicant's prospects for release on early parole are not promising because he reoffended whilst on parole.  His most recent application for parole was refused on 29 October 2001.  He is therefore concerned in this appeal, as he was in the unsuccessful reopening application before the primary judge, as to his eligibility for remission of his sentence. 

[9] Section 75 of the 2000 Act relevantly provides:

"1.A prisoner is eligible for remission only if –

(a)the prisoner is serving a term of imprisonment, as defined in this Act, imposed for an offence committed before the commencement of this section; and

(b)the term of imprisonment is 2 months or more; and

(c)during the prisoner's period of imprisonment, the prisoner has not been –

(iii)released on parole under an order made under the Corrective Services Act 1988, section 165;

…"

[10] The transitional provisions of the 2000 Act make plain that the 2000 Act covers the remission of sentences of prisoners, like the applicant, sentenced before 1 July 2001.[1]   The 2000 Act does not, however, alter this applicant's eligibility for remission.

[11] That is because s 207B 1988 Act, operational from 24 November 2000[2] until 1 July 2001, provided that prisoners, like the applicant, released on parole before 24 November 2000 had their eligibility for remission extinguished when released on parole.[3]  This was acknowledged by the applicant's counsel at sentence.[4]  The 2000 Act did not alter the applicant's eligibility for remission of his sentence prior to 1 July 2001: this eligibility was lost upon his release on parole on 24 July 2000.  His concern that the 2000 Act has interfered with his eligibility for remission is unfounded. 

[12] The only question is whether the sentence is manifestly excessive. 

[13] The complainant in the unlawful wounding offence was the applicant's older brother and was on parole for manslaughter.  The applicant gave evidence for the prosecution at the complainant's murder trial.  With this background, it is hardly surprising that there was much ill-feeling between the complainant and the applicant.  The complainant threatened and harassed the applicant after his release from prison.  On the evening of the offence, it seems the applicant's mother fell and was injured when the applicant arrived at her home.  The applicant and the complainant argued and this developed into a physical fight in which the complainant got the upper hand.  The applicant became enraged, picked up a steak knife from his dinner plate and walked from his bedroom into the kitchen where he jabbed the knife towards the complainant.  He missed and lunged again with the knife, stabbing the complainant in the left rib area.  He was sentenced on the basis that it was a spur of the moment incident without an intention to cause serious injury.  The applicant left the house and directed an ambulance to assist his brother.

[14] Fortunately, the complainant was not seriously injured.

[15] The applicant received a broken nose, a broken front tooth and an injury to the collar bone.  He was on medication for anxiety and depression and both the complainant and the applicant had been drinking alcohol.  The applicant has had a dysfunctional upbringing; he was a victim of sexual abuse; he has a borderline personality disorder. 

[16] The learned sentencing judge took into account all the mitigating factors, in particular the background of hostility between the applicant and the complainant, sensibly suggesting that when the applicant is ultimately released from prison he should obtain a restraining order against the complainant.  The judge was conscious of the need to moderate the cumulative sentence and also took into account the early plea of guilty.  The sentence of 18 months cumulative imprisonment with a recommendation for parole eligibility on 4 October 2001 is by no means manifestly excessive: the offence was serious; it was committed whilst on parole and the applicant has an appalling criminal history.

[17] The applicant claimed in his oral submissions, unsupported by any affidavit material, that the complainant attacked him with a baseball bat and severely injured him some months before this incident occurred.  It does not seem that information was placed before the learned primary judge although defence counsel referred to medical records which apparently related to the applicant's injuries on the night of the offence.  If the records related to an incident some months earlier, this error favoured the applicant.  The applicant has not produced any new evidence in a form which allows its admission before this Court.

[18] The applicant submits that the learned primary judge paid insufficient attention to the applicant's cooperation with the authorities in the complainant's murder trial.  This information was placed before her Honour and she referred to it in general terms in the sentencing remarks.  The lenient sentence imposed suitably reflects this and all other mitigating factors.  The applicant's thorough submissions do not reveal any error on the part of the sentencing judge.

[19] It follows that it would be fruitless to extend time within which to file the application for leave to appeal against sentence.

[20] I would refuse the application.

[21] MUIR J:  I agree with the reasons of McMurdo P and with the order she proposes.

[22] PHILIPPIDES J:  I agree with the reasons of McMurdo P and with the proposed order that the application for an extension of time to file an application for leave to appeal against sentence should be refused.

Footnotes

[1] Section 268A. This applicant is not within the exceptions noted in s 268B of the 2000 Act.

[2] Act No 63 of 2000, s 278.

[3] Section 207B(1)(c) and (3)(a).

[4] District Court indictment no 113/01, 4 May 01, District Court at Ipswich, p 13.

Close

Editorial Notes

  • Published Case Name:

    R v Bayliss

  • Shortened Case Name:

    R v Bayliss

  • MNC:

    [2002] QCA 135

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Muir J, Philippides J

  • Date:

    12 Apr 2002

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC No 113 of 2001 (no citation)04 May 2001Defendant pleaded guilty to one count of unlawful wounding; sentenced to 18 months' imprisonment cumulative upon pre-existing sentence
Appeal Determined (QCA)[2002] QCA 13512 Apr 2002Defendant applied for extension of time within which to apply for leave to appeal against sentence; where some explanation for delay but no prospects of success; application refused: M McMurdo P, Muir and Philippides JJ

Appeal Status

Appeal Determined (QCA)

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