R v Grant-Muir[2004] QCA 282

SUPREME COURT OF QUEENSLAND

McPHERSON JA:  This is an application for an extension of time within which to appeal against sentence.  The applicant pleaded guilty in the District Court at Brisbane to one count of attempting to enter premises with intent, three counts of burglary and stealing, one count of attempted burglary, one count of stealing and one count of possession of implements of house-breaking.

He was sentenced to two years imprisonment for each of these offences to be served concurrently.  This two year term was, however, to be served cumulatively after the applicant had served the remaining two and a half years of a partly suspended sentence that he breached by committing these offences.  That partly suspended sentence of four years, which was one to be suspended after 18 months for an operational period of five years, was imposed in the District Court in January 2002 for 11 counts of house-breaking, attempted house-breaking, fraud and unlawful use of a motor vehicle.  The upshot was the cumulative sentence of four and a half years imposed here, the principal part of which was attributable to the balance of two and a half years remaining from that earlier sentence.

The applicant was, on this occasion convicted and sentenced on 20th of May 2004.  He did not appeal within the time allowed of one calendar month from the date of sentence.  It was not until 16th July 2004 that the application for an extension of time was filed, which is a delay of some 25 days.  The explanation for the delay given by the applicant in his written application for extension is that he had not realised the full impact of the sentence as well as the implications for parole and sentence management.  By that, he meant that he did not know the full details of his sentence at the time or within the time needed to appeal within 30 days, or so he explained in the oral submissions he made to us on the application.

In its original form, what he said was not an explanation at all, or at any rate, not one on which this Court would feel justified in acting in the case of a delay as long as 25 days after the expiration of the month allowed for appearing.  In any event, however, I am satisfied that the appeal, if allowed to proceed in this case, would not have any real prospect of success.

It is necessary to refer to the applicant's prior criminal record, in addition to the suspended sentence imposed in January 2002 which has been referred to.  The applicant had been before the Courts on a number of prior occasions on which he received the following sentences.  In August 1991, probation and community service for two counts of house-breaking and two summary offences.  In July 1995, a 15 month suspended sentence for two counts of assault occasioning bodily harm in company.  In July 1997, a sentence of three years imprisonment with parole recommended after nine months for seven counts of house-breaking, eight counts of stealing, 12 counts of false pretences and one count of receiving.  In November 1998, two months for stealing and in February 1999, three months for possession of tainted property.

The applicant was born on the 31st March 1974.  He was 29 at the time he offended on this occasion and 30 at the sentencing hearing.  His problem is heroin addiction which he says was noticed as long ago as seven years.  His position is obviously an unhappy one, but he has now reached an age and a stage at which, as Justice Pincus said in Queen v. Bonner [2000] QCA 37, it has become necessary for the Courts to balance his personal interest in being rehabilitated against those of other members of the community whose property and the integrity of whose homes are threatened and call for protection against his activities.

He says he can now break free of his addiction and is making good progress towards that objective, or so he claims.  But, there are limits to the patience that society can be expected or afford to show, and the past pattern of sentencing demonstrates that similar representations have been made on previous occasions and have been taken into account, but regrettably without any success.  Not without regret at seeing a person's life wasted in this way when something useful could plainly be made of it, this is a case in which the rather, to my mind, remote prospects of success on a sentence appeal tell strongly against the granting of an extension of time.

I would refuse the application.

DAVIES JA:  I agree.

HELMAN J:  I agree.

DAVIES JA:  The application is refused.