SUPREME COURT OF QUEENSLAND

[1]  KEANE JA:  On 6 May 2008 the applicant was convicted upon the verdict of a jury of 10 serious offences, including five counts of rape, two counts of attempted rape and one count of assault with intent to commit rape.  On 8 May 2008 he was sentenced to 11 years imprisonment in respect of the rape counts, and eight years imprisonment to be served concurrently in respect of the counts of attempted rape and the count of assault with intent to commit rape.  He was sentenced to lesser concurrent terms of imprisonment in respect of the other offences.  In respect of the offences of rape, the learned sentencing judge made a declaration that they were serious violent offences under s 161B of the Penalties and Sentences Act 1992 (Qld).

[2] The Crown case at trial was that on 8 October 2006 the applicant forced his way into the hotel room of a young woman who was visiting Mackay.  She did not know him.  He subjected her to a two and a half hour ordeal in which he assaulted her and forced her to engage in oral sex on five occasions, threatening to kill her if she sought to escape and choking her to the point where she was short of breath.  Ultimately, she was able to escape from him.

[3] The applicant was 49 years old at the time.

[4] The applicant now seeks an extension of time within which to commence the processes of appeal against both his conviction and sentences.

The delay

[5] The application for an extension of time is necessitated by the applicant's failure to commence the appeal process within 28 days of 8 May 2008.  The applicant first gave notice of his intention to appeal on 1 July 2008, that is, when he was about three weeks out of time to initiate an appeal.

[6] The applicant seeks to explain his delay on the basis that his solicitor at trial did not tell him "that there was an appeal process" as a result of which he was unaware of the 28 day time limit.  He also says that, as this was his "first time in jail", he was "a bit overwhelmed by the whole experience" and this contributed to the lateness of his application.

[7] This is hardly a satisfactory explanation.  It is possible that the applicant's late application is truly explicable as an afterthought born of the desperation of his current situation.  It is difficult to believe that the applicant did not become aware of the availability of the appeal process shortly after his conviction, especially as the applicant gives no explanation as to when and how he actually became aware of the possibility of an appeal.  This Court should be astute not to encourage late appeals by applicants who are less than frank concerning the circumstances of their applications. 

[8] Even if one were to disregard the unsatisfactory nature of the applicant's explanation for his delay, a consideration of the arguments which the applicant would seek to agitate if an extension of time were granted does not suggest that an appeal would be attended with sufficient prospects of success to warrant the grant of an extension of time.[1]

 The convictions

[9] The applicant's first complaint in relation to his convictions is that the jury should have been discharged because of a comment made by the speaker of the jury at the commencement of the trial on seeing the defendant having a smoke outside the court during a break in proceedings.  The applicant asserts that the jury speaker said to other members of the jury that he thought that the applicant should "be locked up".  This comment is said to have been made before any evidence was given, and, therefore, to have indicated bias on the part of the speaker which may have tainted the other members of the jury.  The applicant asserts that his Counsel at trial raised an objection in this regard with the learned trial judge who refused to discharge the jury.  In fact, the transcript of the trial does not support the applicant's assertion that any such problem was raised before the learned trial judge.

[10]  It is, therefore, difficult to treat the applicant's first complaint seriously, but, in any event, this complaint is not apt to give rise to a concern that an innocent man has been wrongly convicted:  the comment in question might simply have reflected the jury speaker's imperfect misunderstanding of the procedures relating to the trial process, a misunderstanding which could have been corrected by the trial judge's directions as to the onus of proof upon the prosecution to prove the applicant's guilt beyond reasonable doubt.  And, in any event, there is no reason to think that directions to the jury by the learned trial judge, if the applicant's Counsel had raised this point with his Honour, would not have sufficed to ensure that the jury understood that they should approach the question of the applicant's guilt on the basis of the evidence adduced in the trial and bearing in mind the presumption as to the applicant's innocence. 

[11]  The applicant's next complaint is that there were deficiencies in the investigation and presentation of the prosecution case.  In this regard, he complains particularly of the absence of fingerprinting tests on duct tape found in the hotel room which had been used to bind the complainant.  But the absence of such evidence was not a deficiency in the Crown case:  there was no doubt as to the identity of the person the complainant alleged attacked her.

[12]  The applicant's complaint is that the evidence on which he was convicted was "circumstantial".  This complaint is quite misconceived.  The complainant gave eye-witness evidence directly inculpating the applicant in the crimes of which he was convicted.  There was eye witness testimony from the passer-by who rescued her that he heard the complainant screaming and saw the applicant trying to manhandle the complainant (who was naked) off a hand railing as she screamed for help and the police.  None of this eye witness evidence was contradicted.  A DNA match confirmed the identity of the applicant.  There was no suggestion at trial that the applicant had not been engaged in sex with the complainant.  The complainant made a complaint of rape to police on the same day.  The complainant gave evidence that bruises on her body were inflicted by the applicant.  Photographs of this bruising were available to the jury.  The jury were entitled to reject the defence suggestion that these bruises were mosquito bites or skin blemishes consistent with consensual sexual intercourse.

[13]  The Court cannot be expected to grant an extension to enable its time to be wasted by arguments which are plainly misconceived.  The applicant has not shown any basis on which this Court should be concerned that the convictions involve a miscarriage of justice.

The sentence

[14]  The applicant wishes to assert that his sentence was excessive because it was more severe than was warranted by a comparison with other cases of violent rape which were discussed by the learned sentencing judge in his sentencing remarks.[2]

[15]  The first point to be made here is that the learned sentencing judge was plainly aware that there were reasons to regard the applicant's offending as less serious than the offending involved in the other cases discussed by his Honour.  That the learned sentencing judge clearly took into account the circumstance that the applicant's offending was less serious than that involved in the other cases he referred to is reflected in the circumstance that his Honour imposed a lesser sentence than that imposed in each of the cases to which his Honour referred.

[16]  The sentence which was imposed was not outside the range of the sound exercise of the sentencing discretion reposed by law in the learned sentencing judge.  Reference to the recent decisions of this Court in R v Newman[3] and R v Cosh[4] shows that for violent sexual offences of this kind, the proper range of the sentencing discretion is of the order of 10 to 14 years imprisonment.

[17]  Where, as here, there are multiple rapes involving violent and protracted abuse of a victim unknown to the offender, and the offender has shown no remorse and is not entitled to the benefit of a discount for a plea of guilty, there can be no real prospect that this Court would conclude that, for these offences, a sentence of 11 years imprisonment was excessive. 

Conclusion 

[18]  I would dismiss the application for an extension of time.

[19]  JONES J:  I agree with the reasons of Keane JA and with the order he proposes.

[20]  ATKINSON J:  I agree with the reasons of Keane JA and the order proposed by his Honour.