R v Edwards[2002] QCA 192

COURT OF APPEAL

WILLIAMS JA

CULLINANE J

JONES J

CA No 78 of 2002

THE QUEEN

v.

DEAN ANTHONY EDWARDSApplicant

TOWNSVILLE

DATE 29/05/2002

JUDGMENT

WILLIAMS JA:  I will ask Justice Cullinane to deliver the first reasons.

CULLINANE J:  The applicant seeks an order extending the time within which to apply for leave to appeal against sentence.  He was convicted on his plea of guilty in the District Court at Townsville on the 23rd of August 2001 on two counts of armed robbery.  The first was committed on the 30th of April 1997 when the applicant held up a video store whilst armed with a pistol and escaped with some $700.  The applicant has informed us that the pistol was in fact a replica.

On the second count which was committed on the 3rd of June 1997 and again whilst similarly armed, he robbed a bank in Townsville and escaped with a little more than $10,000.  On that occasion he was driven from the scene by his girlfriend.

He pleaded guilty to both offences and it was conceded by the prosecution that it would have been difficult to obtain a conviction on the first count without his confession. 

Some three months after committing these offences he robbed a bank in South Australia and was sentenced there to imprisonment of five years and four months with a non-parole period of three and a-half years. 

After being released on parole on the 6th of March 2001, he was extradited to Queensland to be dealt with for these matters. 

The applicant has a substantial criminal history.  He was born on the 18th of January 1962.  In 1980 he was sentenced to five years' imprisonment for armed robbery and breaking and entering offences.  He has convictions for offences of dishonesty dating back to September 1980 in New South Wales and in South Australia.  It is in the latter State where he has committed most of the offences that appear in his criminal history.  He has served terms of imprisonment for a number of these.

In sentencing the applicant the learned sentencing Judge approached the matter upon the basis of the totality principle looking at the two offences, the subject of this application, and the offence committed a few months later in Adelaide.  He expressed the view that had he been dealing with the applicant for all of those matters he would have sentenced him to a term of something like 12 years' imprisonment.  Some 169 days which had been served in presentence custody was declared to be imprisonment already served.

In applying the totality principle, his Honour necessarily had to take account of the reality of the South Australian sentence and the non-parole period and the fact that the applicant had already served that term of imprisonment. 

The applicant did not file an application until the 14th of March 2002.  That is more than five months out of time.  He says that he gave instructions to his legal representatives to lodge an appeal against the severity of sentence and that shortly after he was sentenced he completed an application for legal aid.  This was refused in November 2001.  He says that he sought an external review of this decision, but when he had not received any advice by January, he wrote to the registrar of the Court of Appeal in Brisbane and a copy of this letter has been placed before the Court by him.  He received the relevant forms in the first part of February.

He also says that during this time he underwent the trauma of losing his mother and that there were some delays in obtaining documentation which he was seeking from the Prisons Department in South Australia relating to his attempts to rehabilitate himself there.

The applicant places particular emphasis upon the fact that he will not be eligible for parole for another three years and that since he has already served three and a-half years in South Australia, he will have served six and a-half years before becoming eligible for release.

On an application of this kind, it is necessary to consider whether there is any good reason shown to account for the delay and to consider whether on the whole of the material it is in the interests of justice to grant the extension sought.

The learned sentencing Judge approached the matter, in my view, in accordance with the principles applicable in a case of this kind where the sentence has to reflect the totality of the criminality involved.  We were referred to a number of cases.  I think it is fair to say that the judgments of the Court of Appeal in Steen, Burrows and Chevalley, to which the respondent referred us provide no support for the applicant's claim that the sentences were manifestly excessive.

In my view, the applicant's prospects of successfully challenging the sentences imposed cannot be regarded as good. When one looks at the explanation for delay, it is impossible to conclude that there is any justification for the granting of the extension sought.

Viewing the matter overall, I would refuse the application.

WILLIAMS JA:  I agree.

JONES J:  I agree also.

WILLIAMS JA:  The order of the Court is the application is refused.