R v McKinnon
[2006] QCA 16
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- Unreported Judgment
- Appeal Determined (QCA)
- R v McKinnon[2006] QCA 16
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R v McKinnon[2006] QCA 16
R v McKinnon[2006] QCA 16
SUPREME COURT OF QUEENSLAND
CITATION: | R v McKinnon [2006] QCA 16 |
PARTIES: | R |
FILE NO/S: | CA No 258 of 2005 DC No 655 of 2004 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Extension (Sentence & Conviction) |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED EX TEMPORE ON: | 9 February 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 February 2006 |
JUDGES: | McMurdo P, McPherson JA and Muir J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: | 1.Application for extension of time within which to appeal refused 2.Application under r 69 Criminal Practice Rules 1999 (Qld) refused |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY – GENERAL PRINCIPLES - where applicant pleaded guilty to one count of retaliation against a judicial officer and two counts of serious assault – where applicant sentenced to three and a half months' imprisonment and two years' probation and required to undertake anger management course – where applicant filed application for leave to appeal against that sentence but abandoned that application, with effect that the application was taken to be refused by Court - where applicant claimed that he abandoned previous application because he thought his solicitor was handling his appeal – where applicant now applies for extension of time in which to appeal against both sentence and conviction – where applicant wishes to set aside his pleas of guilty but has not demonstrated any reason to set aside these pleas – whether applicant can set aside pleas of guilty made in open court and when legally represented - whether applicant should be granted extension of time in which to appeal against conviction CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY - where applicant wishes to apply for extension of time in which to appeal against sentence - where applicant claims that his sentence was manifestly excessive - whether applicant's sentence was manifestly excessive in all the circumstances - whether in the interests of justice this Court should set aside the notice of abandonment and reinstate previous application in accordance with r 69 Criminal Practice Rules 1999 (Qld) - whether applicant should be granted extension of time in which to appeal against sentence Criminal Practice Rules 1999 (Qld), r 69 |
COUNSEL: | The applicant appeared on his own behalf B G Campbell for the respondent |
SOLICITORS: | The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent |
THE PRESIDENT: The applicant pleaded guilty in the District Court to one count of retaliation against a judicial officer and two counts of serious assault. On 24 June 2004 a pre-sentence report was ordered and his sentence was adjourned. On 12 October 2004 he was sentenced to three and a half months imprisonment and two years probation with a special condition that he undertake a course in anger management. He originally filed an application for leave to appeal against that sentence on 3 November 2004 but on 25 November 2004 he filed a notice of abandonment. This has the effect that his application for leave to appeal against sentence is taken to be refused by the Court: see Criminal Practice Rules 1999 (Qld) rule 69. That rule also provides, however, that if this Court considers it necessary in the interests of justice it may set aside the abandonment and reinstate the application: rule 69(3).
The applicant on 3 October 2005 filed an application for an extension of time within which to appeal stating as the ground of his application, "I though [sic] my solicitor was handling my appeal and that is why I withdrew the appeal previously. Also I was waiting for approval from Legal Aid Queensland." His application was then almost 12 months out of time.
Although his application relates to both his conviction and his sentence, his proposed grounds of appeal only seem to be concerned with his sentence but he states today, in representing himself in this application, that he also wants to set aside his pleas of guilty.
His application states:
"The sentence was manifestly excessive. Also it was not stated to the District Court Judge Shanahan - that there had been fraud on my credit union accounts. I had been using accountant Greg Dorge from Don and Ken Haywood Accountants to try and trace where the money was being taken from, they gave me a list of transactions to try and find on my statements except my safe deposit box which was at ANZ Sandgate had the statements these were taken from my safe deposit box - when asked the Manager what had happen [sic] she stated it was mistaken identity - she was also advised previously before this happen [sic] that this could happen."
The applicant pleaded guilty in open court and when legally represented. He has not demonstrated any reason to set aside his pleas of guilty which were regularly entered by him. The matters referred to in his application relating to frauds committed upon him do not appear to have any direct relevance to his present application before this Court.
The offences occurred in this way. The magistrate attempted to explain to the applicant his rights and also the difficulties he faced with his application before the magistrate under the Domestic and Family Violence Protection Act 1989 (Qld) in respect of the applicant's former wife. The applicant then became frustrated and said, "I'm sick and tired of this court process. Now I'm going to start taking the matters in my own hand. Okay. Because I am tired and sick of it. I've been to the Brisbane Magistrates Court, I've been to Petrie. If I see you again" referring to the magistrate, "I'll put a bullet in your brain." The magistrate ordered that the applicant be arrested. The applicant then struggled with the police officer who followed the magistrate's order and the clerk of the court who came to the police officer's assistance. Each officer suffered some injuries including bruising and scratching and each required physiotherapy.
The applicant was 44 years at sentence and 42 when he committed the offences. He had no criminal history. The pre-sentence report recommended that he be considered for probation and that he would benefit from completing an anger management program.
The learned sentencing judge rightly considered the applicant's conduct was very serious, especially as it involved violence within the courtroom itself so that an actual period of custody was warranted. The sentence imposed, the custodial aspect of which has now been served, was appropriate in the circumstances. Principles of general and particular deterrence supported an actual period in custody even though the applicant had no prior criminal history, had pleaded guilty and was obviously distraught because of his personal circumstances.
Serious courtroom threats to judicial officers followed by courtroom violence to court officers strike at the essence of the justice system and the rule of law, cornerstones of democratic government. It follows that the interests of justice do not require this Court to set aside the abandonment and reinstate his abandoned application to appeal against sentence nor would there be any utility in extending time for him to apply for leave to appeal against sentence or conviction because such an application would inevitably fail.
I would refuse his application for an extension of time within which to appeal. If there be an application under Criminal Practice Rules 1999 rule 69 I would also refuse that application.
McPHERSON JA: I agree.
MUIR J: I agree.
THE PRESIDENT: That is the order of the Court. Your application is refused.