R v BBM
[2008] QCA 7
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- Unreported Judgment
- Appeal Determined (QCA)
- R v BBM[2008] QCA 7
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R v BBM[2008] QCA 7
R v BBM[2008] QCA 7
SUPREME COURT OF QUEENSLAND
PARTIES: | R |
FILE NO/S: | DC No 493 of 2006 |
Court of Appeal | |
PROCEEDING: | Application for Extension (Sentence & Conviction) |
ORIGINATING COURT: | |
DELIVERED EX TEMPORE ON: | 5 February 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 February 2008 |
JUDGES: | Keane, Holmes and Fraser JJA 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 against sentence granted2.Application for extension of time within which to appeal against conviction refused |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCELLANEOUS MATTERS – POWER TO BRING APPEAL – EXTENSION OF TIME – where applicant convicted on his own plea of guilty – where applicant sentenced to 10 years imprisonment – where applicant applied for extension of time in which to seek leave to appeal against conviction and sentence – where there is an arguable irregularity attending the sentence imposed – whether an extension of time to seek leave to appeal against conviction and sentence should be granted R v GV [2006] QCA 394; CA No 190 of 2006, 27 September 2006, applied R v Johnson [2007] QCA 433; CA No 151 of 2007, 7 December 2007, applied R v Lewis [2006] QCA 121; CA No 325 of 2005, 21 April 2006, applied |
COUNSEL: | The applicant appeared on his own behalf G P Cash for the respondent |
SOLICITORS: | The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent |
KEANE JA: On 29 September 2006 the applicant was convicted, on his own plea of guilty, of one count of maintaining an unlawful sexual relationship with his daughter and eight counts of incest. The offences were alleged to have occurred between 1 January 1991 and 31 December 2002.
The complainant was aged between eight and 15 years of age for the period covered by the maintaining charge, and 17 to 21 years of age for the period covered by the incest charges. He was sentenced to 10 years' imprisonment by the learned sentencing Judge.
On 25 September 2007 the applicant gave notice of his intention to apply for an extension of time within which to appeal against his conviction and the sentence.
The applicant's explanation for his lengthy delay is not compelling. He says that he was unable to obtain his file from his former solicitors and was handicapped by his lack of legal expertise. Neither of these assertions affords a reasonable explanation for the lapse of so much time before the applicant sought to exercise his right to seek to appeal. It is the settled practice of the Court, however, that even where there is no satisfactory explanation for delay, an extension of time may be granted if a demonstrable miscarriage might be perpetuated by the refusal of the extension. See R v Lewis [2006] QCA 121 at paragraph 3; and R v GV [2006] QCA 394 at paragraph 3.
In relation to the foreshadowed challenge to his conviction, there appears to be no sufficient prospect of success to warrant the grant of an extension of time, bearing in mind that the applicant pleaded guilty to the charges. There is nothing put before this Court to suggest that the applicant's plea of guilty was not fully informed and given voluntarily. It was thus compelling evidence of his guilt of the offence. There is no suggestion in the material put before this Court which would justify the slightest doubt as to the applicant's guilt.
As to the foreshadowed application for leave to appeal against sentence, it appears that there may be an irregularity attending the sentence. It is arguable that the applicant was not sentenced in respect of each of the offences to which he pleaded guilty. In such a case the irregularity in the sentencing process, though technical, would usually mean that it falls to this Court to exercise the sentencing discretion afresh. See R v Johnson [2007] QCA 433 at paragraphs 6-7.
In addition, the learned sentencing Judge made it clear that she was not disposed to give much weight to the circumstance that the applicant was elderly and quite ill at the time he was sentenced. It is arguable that these considerations, which are relevant to mitigation, were not given sufficient recognition, especially bearing in mind the applicant's plea of guilty and the recognition to which he was entitled in that regard.
The respondent to this application acknowledges that these are matters which give rise to arguable grounds of challenge to the sentence imposed on the applicant.
The respondent accepts that these arguments cannot be disposed of satisfactorily without reference to the full record of proceedings. One way of solving this problem would be to adjourn this application to enable a full record to be prepared. On the other hand, if an extension were to be granted the likelihood is that Legal Aid Queensland would provide the applicant with legal representation on the hearing of the application for leave to appeal against sentence. This course would obviously be to the advantage of the Court in that the questions which attend the sentence imposed on the applicant will be properly argued by competent counsel on behalf of the applicant.
I am, therefore, of the view that the application for an extension of time to seek leave to appeal against sentence to 26 September 2007 should be granted. On the other hand, the application for an extension of time to enable an appeal against the conviction to proceed should be refused.
HOLMES JA: I agree.
FRASER JA: I agree.
KEANE JA: The order of the Court will be that there will be an extension of time until 26 September 2007 for the filing of the application for leave to appeal against sentence.