Williams v The Queen[2008] QCA 65

COURT OF APPEAL

McMURDO P

MACKENZIE AJA

CHESTERMAN J

CA No 20 of 2008

BRISBANE 

..DATE 27/03/2008

JUDGMENT

APPLICANT conducted her own case

MR M J COPLEY (instructed by the Department of Public Prosecutions (Queensland)) for the respondent

THE PRESIDENT:  Mr Justice Chesterman will deliver his reasons first. 

CHESTERMAN J:  The applicant seeks an extension of time within which to apply for leave to appeal against sentences imposed upon her in the District Court of Ipswich on 18 October 2007.  The application was filed on 23 January 2008, two months out of time. 

The applicant pleaded guilty to two counts of armed robbery, one in company, and one with personal violence, one count of assault occasioning bodily harm in company, one count of stealing a credit card, and one count of fraudulently using the credit card to obtain goods and services to the value of $1400, and one count of breaching bail.  As well, the applicant pleaded guilty to a number of summary offences.

She was sentenced to a term of four years imprisonment on each of the armed robberies, and a term of three years imprisonment for the assault occasioning bodily harm while in company.  She was sentenced to six months imprisonment for stealing, and three months for the fraud.  No penalty was imposed for the breach of bail.  The summary offences were visited with one month's imprisonment each. 

All sentences were to be served concurrently and 171 days, which the applicant had spent in custody, was declared to be time already served under the sentences.  The learned judge fixed 30 October 2008 as the date on which the applicant will become eligible for parole, that being the date which is 18 months from the date on which the applicant was taken into custody. 

The application to extend time should be refused unless the applicant demonstrates that it is in the interests of justice that she be allowed to apply for leave to appeal against sentence out of time.  This normally calls for an inquiry into the reason for the delay, and its length, and whether the applicant has any worthwhile grounds of appeal. 

The delay here is not great, but it is almost completely unexplained.  All the applicant says is that "I did not understand my sentence.  I thought I had a parole release.  That is what I thought I heard in the court at sentence time.  It has just been explained to me that I have to apply for parole and I did not understand this before." 

For the purposes of the application, I am prepared to accept the applicant did not understand the full import of the sentence imposed upon her and that when she realised the implication of the order for parole made by the sentencing judge she came to the opinion that the sentence was excessive.  That is some explanation for the relatively brief delay in applying for leave to appeal.  The question then becomes whether there are other any worthwhile grounds of appeal.  In my opinion the question must be answered in the negative. 

The offences were quite serious.  One armed robbery involved the applicant with another, younger, woman going to a local convenience store armed with a knife and a blood-filled syringe with which the sole shop attendant was menaced and coerced into opening the till and paying the entire proceeds, some hundreds of dollars, to the applicant and her companion.  The other robbery was committed by the applicant alone.  She was armed with a knife with which she threatened the shop keeper. 

The charge of assault occasioning bodily harm while in company was a particularly vicious and unprovoked attack on four innocent young women who were harassed, chased and beaten by the applicant and her friends.  It was an appalling crime. 

An aggravating circumstance of the robberies was that each was committed whilst the applicant was on bail and subject to a suspended sentence. 

She has a significant criminal history for burglaries whilst armed, assaults occasioning bodily harm, entering dwelling houses and committing an indictable offence, stealing, and the unlawful use of motor vehicles.  In January 2007 she was sentenced to a wholly suspended term of six months imprisonment for stealing, burglary and assault.  It was during the term of that suspended sentence that the armed robberies were committed. 

We have been referred to some authorities, in particular R v Holdsworth and Crossman [1999] QCA 322 and R v Maxfield [2002] 1 Qd R 417 at 422 especially.  It is not necessary to refer to these cases for their facts.  It is enough to say that they are ample authority supporting the term of imprisonment imposed in this case. 

The applicant does not complain about the length of the sentences imposed for the armed robberies.  Her complaint is that the judge fixed the date on which she will become eligible on parole rather than ordering that the applicant be released on parole on that date.  The learned judge could not make the order the applicant seeks.  When a sentence of imprisonment of more than three years is imposed, a judge has no power to fix a parole release date.  All that can be done is to fix a date on which the prisoner will become eligible for parole. 

The sentence of four years is, as I say, not challenged and could not be.  The order the applicant contends should have been made is beyond the Court's power to make.  An appeal would have no realistic prospects of success.  I would therefore refuse the application to extend time.

THE PRESIDENT:  I agree with what Mr Justice Chesterman has said.  I wish just to make the following observations.  The applicant's real complaint is that she does not have a fixed release date for release on parole on 30 October 2008 but only then becomes entitled to parole eligibility. 

The learned sentencing judge, in imposing the lenient sentence in this case, clearly thought the applicant had promising prospects of rehabilitation if she can stay off drugs when released from gaol on parole.  The information, limited as it is before this Court, suggests that she would clearly be assisted in her rehabilitation by a lengthy period of community supervision on parole. 

MACKENZIE AJA:  Yes, I agree.  Everything that I would have wished to have said has already been said and I agree with the order proposed.

THE PRESIDENT:  The application is refused.  And as Justice Mackenzie said to you, you know, you really should do everything you can to get your parole application together and do everything you can in prison to make sure it is approved.