R v RT[2004] QCA 276

SUPREME COURT OF QUEENSLAND

DUTNEY J:  This is an application for an extension of time within which to appeal. 

On 20 October 2000, the applicant pleaded guilty in the District Court to three counts of indecent treatment of one of his daughters who was then under 12, two counts of indecent treatment of another of his daughters also under 12 years of age and one count of maintaining a sexual relationship with a child in his care together with five counts of unlawful carnal knowledge of that child.  The offences of maintaining a sexual relationship and carnal knowledge concerned an unrelated child who was in the applicant's custody.

The applicant was sentenced to terms of four years' imprisonment in relation to the offences against each of his daughters and six years' imprisonment in relation to the offences against the third child.  The sentences were all concurrent and, by reason of the grant of credit for time spent in custody on remand, effectively commenced on 11 May 1999.  If the applicant serves the full term of his imprisonment he will be released in nine months.

Since this is an application to appeal against conviction following a plea of guilty the applicant will ultimately, if successful here, have to demonstrate to the Court hearing the appeal that the acceptance of the plea has produced a miscarriage of justice, see R v MacKenzie [2000] QCA 324; (2000) 113 A Crim R 534 at [31] and [32], and R v Lewis; ex parte A-G (Qld) [2003] QCA 133 at [14].

In his application for an extension of time the only explanation for the delay of more than three and a-half years in filing the appeal is, "Never received legal papers from Wolston Correctional Centre, perverting the course of justice, no knowledge of paperwork, only just received legal documentation."

Of perhaps more pertinence are the proposed grounds of appeal which read as follows,

"On fresh evidence that was not used in my committal, lack of legal representation, arresting officer withholding information, lawyer and arresting officer known to the so-called victim, the victim was not in the State of Queensland at the time of the said offences.  On the advice of the CMC, I have decided to appeal my conviction and sentence."

No ground for appealing against the sentence is identified.  Prima facie a sentence of six years imprisonment for maintaining a sexual relationship with a child seems unremarkable. 

In his written material supplied to the Court, the applicant enlarges a little on the delay.  He refers to lack of co-operation from sentence management and ignorance of the availability of legal aid.

For reasons I shall now outline the adequacy or otherwise of the explanation for the delay is not determinative of this application. 

On the substantive issues raised in the notice of appeal there is scant material.  The applicant denies all the offences except one offence of unlawful carnal knowledge.  There is a complaint that some charge sheets attached to the written material are different from the charges on which the applicant was convicted.  This is true but the charge sheets are from the Magistrates Court whereas the offences to which the applicant pleaded guilty are those contained in the indictments presented to the District Court.

In relation to the allegation that the complainant was out of the State when the offences were allegedly committed there is an unsupported statement in a letter sent by the applicant to the Chief Justice in July that between 1993 and 1995 one or perhaps both of his daughters lived in Western Australia.  This is of little help to the applicant.  The charges in relation to the elder daughter pre-date this period and the charges in relation to the younger daughter are alleged in the indictment to have been committed between December 1992 and March 1994.  They could well have been committed in Queensland even if the complainant was in Western Australia for some part of that period.

The sentence proceeded on the basis of an agreed statement of facts which was presumably prepared as a result of consultations between the applicant and his lawyers.  In this, it was agreed that the location of at least one of the offences against the younger daughter was Redland Bay.

A largely obscure document from a psychologist relating to one of the daughters suggested that there might have been some basis for attacking that daughter's credibility on a trial but that document is not admissible nor particularly, in my view, cogent of the facts in issue.

In any event, the effective sentence is the six years imprisonment for maintaining a relationship with the unrelated child in his custody.  The sentences for the offences against the daughters have now been completely served.  The allegation that the daughters lived for a period in Western Australia does not assist in relation to that offence.  There is no reference in the applicant's submissions or documents to that offence.

While there is a reference in the written material to "Government documents" which were allegedly withheld from the committal proceeding there is no way of ascertaining what those documents might be, whether they exist or ever existed or whether they, in fact, have anything to do with the convictions.  This reference to "Government documents" appears in the July letter to the Chief Justice.  On the other hand, the written submission to this Court states that the applicant has been able to obtain all relevant documents and attaches some, presumably those considered most relevant.  The attached documents are the Magistrates Court charge sheet to which I referred earlier, a copy of the applicant's criminal history, a letter from the Ombudsman recommending that the applicant undertake the sexual offenders' treatment program and the July letter to the Chief Justice.  Some other documents were referred to in the course of oral submissions but it was difficult to identify any relevance to the offence for which the applicant is presently incarcerated.

In my view, any appeal brought on the grounds identified by the applicant so far must inevitably fail.  There is no supporting evidence which suggests a miscarriage of justice has occurred.  In those circumstances, to extend the time for filing an appeal would be a waste of time and I would dismiss the application.

THE PRESIDENT:  I agree.  The applicant has given no adequate sworn or affirmed explanation for the delay of three years in bringing this application nor has he produced any evidence to show that his plea of guilty has produced a miscarriage of justice so that even if time were extended it does not seem he presently has any prospects on any appeal.  The application for an extension of time should be refused.

WILLIAMS JA:  I agree.

THE PRESIDENT:  That is the order of the Court.