R v MAM[2005] QCA 323

SUPREME COURT OF QUEENSLAND

KEANE JA:  In March 2003 the applicant in this matter was convicted after a trial in the District Court in Cairns on the following counts:  one of maintaining an unlawful sexual relationship with a child under the age of 16, five of indecent dealing and two of procuring a child to commit an indecent act.  The applicant was sentenced to six years imprisonment with respect to the maintaining offence, four years with respect to the indecent dealing offences and four years for the procuring offences.

The applicant now seeks an extension of time in which to appeal against both his convictions and the sentences that were imposed with respect to them.  The applicant has previously appealed against his convictions to this Court.  That appeal was considered on its merits.  The submissions there made on behalf of the applicant failed to persuade the Court that any error could be discerned in the manner in which he had been convicted.  His appeal was unanimously dismissed on 27 May 2003.

The High Court, in Grierson v The King (1938) 60 CLR 431 at 435, confirmed that this Court's jurisdiction to hear criminal appeals "is statutory, and the court has no further authority to set aside a conviction upon indictment than the statute confers". 

It is clear that the right of appeal conferred by section 668D of the Criminal Code 1899 (Qld) ("the Criminal Code") is exhausted once an appellant has been afforded one opportunity to have his or her appeal considered on its merits.  See R v Pettigrew [1997] 1 Qd R 601 at 606 and R v AP [2003] QCA 445; CA No 435 of 2002 and CA No 133 of 2003, 17 October 2003 at [37] to [39]. 

The applicant in this case has already been afforded that opportunity.  This Court, therefore, lacks the jurisdiction to hear any further appeal by the applicant against his convictions. 

It follows that to grant his application for an extension of time in which to appeal against those convictions would be futile as any new appeal would be incompetent.  In such circumstances it is unnecessary to consider the relevance or otherwise of the new evidence that the applicant has put forward and would seek to adduce on a new appeal.

There remains the question of whether this Court should grant an extension of time in which the applicant can apply for leave to appeal against his sentence.  While the approach required by Grierson is applicable to sentences as well as to convictions (See R v Senior [2005] QCA 21; CA No 399 of 2004, 11 February 2005 at [4]) the fact that the applicant's previous appeal related only to his convictions means that his application with respect to sentence cannot be disposed of on the same basis.

In considering whether an extension of time should be granted this Court:

"… will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension.  That may involve some assessment of whether the appeal seems to be a viable one.  It is not to be expected that in all such cases the Court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the Court will often find it appropriate to make some provisional assessment of the strength of the applicant's appeal, and take that into account in deciding whether it is a fit case for granting the extension. Other factors include prejudice to the respondent, but in the case of criminal appeals this is not often a live issue.  Another factor is the length of the delay it being much easier to excuse a short than a long delay."

See R v Tait [1999] 2 Qd R 667 at 668. 

The applicant's delay in seeking to file an application for leave to appeal against his sentence has been a particularly lengthy one.  Section 671(1) of the Criminal Code states that such an application should be lodged within one calendar month of the date of sentence.  In R v AP [2003] QCA 445; CA No 435 of 2002 and CA No 133 of 2003, 17 October 2003 at [25], President McMurdo described an extension application lodged almost 10 months after conviction to be already "at a very late stage".  It is now almost two and a-half years since the date on which sentence was imposed on the applicant.  Such a long period of delay is difficult to excuse.

The only explanation advanced by the applicant makes mention of involvement in an attempt to appeal to the High Court against his convictions and the suggestion is that he had only recently become aware of his right to apply to this Court.  This explanation is wholly inadequate.  The applicant must have been aware, at the latest, as at the date of the resolution of his first appeal against conviction that there was an avenue of appeal open to him.  Whether he took no steps to appeal against his sentence because he was relying on the prospect of a successful appeal against conviction to the High Court, of which there is apparently no record, or because he made no effort to inform himself about whether he could apply for leave to appeal to this Court against his sentence, it would appear that the real reason for the failure to lodge this appeal at an earlier date is simply a belief in the prosecution and the prospect of a prosecution of an appeal against his convictions.

In those circumstances the applicant can only be successful in his application to appeal against sentence if the interests of justice are strongly in his favour.  In my view, while the convictions stand, it is not arguable that the effective sentence of six years imprisonment imposed on the applicant was manifestly excessive.

In this regard, the two young girls against whom the applicant committed the offences of which he was convicted were his stepdaughter and one of her friends.  They were aged 12 and 13 years of age at the time the offences were committed.  The applicant involved them both in the commission of sexual acts upon himself and upon one another.

The learned sentencing judge observed that the applicant had shown no remorse for what he had done.  The use made by the applicant of a child for whom he was meant to stand in loco parentis constituted a serious breach of trust.  Similar considerations apply to the offences committed against his stepdaughter's friend who had been placed in his care by her parents.

The learned sentencing judge noted the relatively small number of offences and that they were committed within a confined period of time.  It was also noted that the applicant had not resorted to violence in order to commit any of his offences and that he had no prior criminal history. 

When one bears in mind that the maximum sentence under section 229B of the Criminal Code for the offence of maintaining a sexual relationship with a child was, at that time, 14 years of imprisonment, it would appear difficult to argue that an effective sentence of six years in the circumstances of the present case is so obviously excessive as to justify an extension of time in which to appeal against it.

For these reasons I would reject the application for an extension of time within which to appeal against conviction and to apply for leave to appeal against sentence.

THE PRESIDENT:  I agree.

FRYBERG J:  The records of this Court in file number 94 of 2003 show that by a final order of the Court of Appeal made on the 27th of May 2003 the Court determined the present applicant’s appeal and ordered that the appeal against conviction be dismissed.  While that order stands no jurisdiction exists in this Court to hear a further appeal for the reasons enunciated by Justice Keane.  In those circumstances I agree that the application for an extension of time in relation to the conviction must be dismissed.

I also agree with what Justice Keane has said in relation to the application regarding the sentence and with the order proposed.

THE PRESIDENT:  The application is refused.