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  • Appeal Determined - Special Leave Refused (HCA)

R v Georgiou[2004] QCA 121

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

DC No 276 of 2001

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

DELIVERED EX
TEMPORE ON:

21 April 2004

DELIVERED AT:

Brisbane

HEARING DATE:

21 April 2004

JUDGES:

McMurdo P, McPherson JA and Williams JA

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

ORDER:

Application for extension of time within which to apply for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – PRACTICE AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where applicant convicted of manslaughter under s 8 Criminal Code – where sentenced to 8 years imprisonment – where applicant was party to a break and enter in which an innocent bystander was killed – where applicant had prior convictions, but not for offences of violence – where application for leave to appeal against sentence more than two years and three months late – where applicant had earlier appealed against conviction and Attorney-General had earlier appealed against leniency of sentence but neither appeal had been successful – whether applicant had any prospects of success if an extension of time were granted – whether an extension of time should be granted within which to apply for leave to appeal against sentence

R v Georgiou & Ors; R v Georgiou & Anor; ex parte A-G (Qld) [2002] QCA 206; CA Nos 234, 244, 271, 265 and 266 of 2001, 14 June 2002, considered

COUNSEL:

The applicant appeared on his own behalf
B G Campbell appeared for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT:  The applicant was convicted on 23 August 2001 at the Supreme Court at Townsville, after a trial, of one count of manslaughter on 1 May 1999.  He was sentenced to eight years imprisonment.  He now applies for an extension of time to apply for leave to appeal against his sentence.

The application is more than two years and three months late.  As an explanation for the delay in bringing the application the applicant states:

"On the 14th of November 2003, the High Court of Australia dismissed my appeal against the conviction.  I believe that I have exhausted all avenues to Appeal against the conviction, leaving me with only one avenues (sic) that I have not tryed (sic) and that is to Appeal against the sentence."

The offence arose out of the break and entry of, and stealing from, the Northside Day and Night Pharmacy, Belgian Gardens, Townsville at 1.30am on 1 May 1999.  This applicant and Edwards pleaded guilty to the offence of break, enter and steal, and not guilty to the offence of murder.  The deceased was a neighbour who heard the noise of the break into the pharmacy and challenged the offenders.  The applicant was the lookout and was to have assisted Edwards, who was illiterate, in identifying the Sudafed to be taken from the pharmacy. Edwards shot and killed the deceased whilst he and the applicant fled.  The jury convicted Edwards, who fired the fatal shot, of murder, and the applicant of manslaughter under s 8 of the Criminal Code.  It seems their verdict was based on a finding that the applicant knew that Edwards was in possession of a firearm when they jointly committed the planned offence of break, enter and steal.  The applicant unsuccessfully appealed against his conviction to this Court and the Attorney-General appealed against the leniency of the sentence:  (see R v Georgiou & Ors; R v Georgiou & Anor; ex parte A-G (Qld) [2002] QCA 206; CA Nos. 234, 244, 271, 265 and 266 of 2001, 14 June 2002.)

The applicant and his lawyers must have considered, when lodging the notice of appeal against conviction and responding to the Attorney-General's appeal against sentence, whether he should also apply for leave to appeal against his sentence.  He plainly decided against that course.  In that appeal, this Court noted the applicant's age and prior convictions for property and drug offences, and observed that the applicant's sentence could certainly have been fixed at a higher level without inviting intervention on appeal.  Having regard to the principles applied in an Attorney-General's appeal, the court determined that a sentence of eight years imprisonment was not so inadequate as to warrant appellate intervention.

I respectfully agree with those observations.  The applicant was responsible for unlawfully taking a life by his involvement in unlawful and potentially dangerous conduct.  He was 31 years old with prior convictions.  Although he had not previously been convicted of offences of violence, he had previously served short periods of imprisonment and had been offered the opportunity of community-based orders in the past.  He did not have the mitigating factors of cooperation with the administration of justice through an early plea.  In those circumstances, a sentence of eight years imprisonment cannot be said to be manifestly excessive. 

The applicant's prospects of success in an application for leave to appeal against sentence, if an extension of time were granted, are negligible.  It emerged in his oral submissions to this Court that the applicant's real concern is that he has not been granted parole and he fears that this is because the deceased was a Corrective Services officer.  The granting of parole is not a matter relevant to this Court's determination of whether a sentence is manifestly excessive.

The applicant has failed to show any acceptable reason for his delay in bringing the application for leave to appeal against sentence within time, and has not demonstrated any prospects of success were an extension of time to be given.  I would refuse the application.

McPHERSON JA:  I agree.

WILLIAMS JA:  I agree.

THE PRESIDENT:  That is the order.

Close

Editorial Notes

  • Published Case Name:

    R v Georgiou

  • Shortened Case Name:

    R v Georgiou

  • MNC:

    [2004] QCA 121

  • Court:

    QCA

  • Judge(s):

    McMurdo P, McPherson JA, Williams JA

  • Date:

    21 Apr 2004

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2001] QSC 12830 Apr 2001Pre-trial applications for change of venue and separate trials refused: Dutney J.
Primary JudgmentSC276/01 (No citation)23 Aug 2001At retrial ordered by Court of Appeal in [2000] QCA 508, E convicted of murder, G of manslaughter, and H of manslaughter and breaking and entering, an associated count to which E and G had earlier pleaded guilty. Subsequently, G and H were sentenced to 8 and 8.5 years’ imprisonment respectively.
Appeal Determined (QCA)[2002] QCA 206 (2002) 131 A Crim R 15014 Jun 2002E, G and H’s appeals against convictions dismissed; Attorney-General’s appeal against sentence in cases of G and H dismissed: McPherson and Williams JJA, Atkinson J.
Appeal Determined (QCA)[2004] QCA 12121 Apr 2004G's application for extension of time to seek leave to appeal against sentence refused: McMurdo P, McPherson and Williams JJA.
Special Leave Refused (HCA)[2003] HCATrans 48114 Nov 2003G’s application for special leave to appeal against [2002] QCA 206 refused: Hayne and Heydon JJ.
Special Leave Refused (HCA)[2004] HCATrans 23523 Jun 2004E refused special leave: Gleeson CJ and Heydon J.

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

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