SUPREME COURT OF QUEENSLAND

[1]  McMURDO P: This is an application for an extension of time to apply under s 188 Penalties and Sentences Act 1992 (Qld) to re-open the sentence imposed by this Court on the applicant, John Leslie Rollason, on 28 November 2008: see R v Jenkins, Rollason & Brophy.[1]  This Court then granted Rollason's application for leave to appeal against sentence and allowed his appeal to the limited extent of setting aside the order that he be imprisoned for a period of 12 years on count 2 of indictment 475 of 2006, and substituting an order that he be imprisoned for a period of 11 years.  His original sentence was otherwise confirmed.

[2]  Under s 188(5)(b)(i) and (ii) Penalties and Sentences Act, an application to re-open a sentence under s 188 is to be brought within 28 days of the sentence, or any further time the court may allow.  The applicant's explanation for his delay in not bringing this application until April 2009, almost five months after this Court's order was made and reasons published, is unpersuasive.  It is as follows.  He did not receive the transcript of the appeal hearing until 27 February 2009.  Only when his lawyers received the transcript did they identify the factual discrepancy.  This application was brought shortly afterwards.  Despite this unimpressive explanation, whether this Court grants an extension of time under s 188(5)(b)(ii) must turn on whether it is in the interests of justice to do so.

[3]  The applicant contends that the sentence imposed by this Court was decided on a clear factual error of substance under s 188(1)(c) Penalties and Sentences Act; the sentence should be re-opened; and this Court should now re-sentence the applicant on the correct factual basis. 

[4]  The clear factual error of substance is said to be contained in Jenkins, Rollason & Brophy at [35] where I noted (Jones and Daubney JJ agreeing):

"… The only mitigating feature in Rollason's case was that he pleaded guilty, albeit on the morning of trial. Nevertheless he should receive some credit for this limited and belated assistance with the administration of justice."

And at [37] where I added:

"Rollason, like his co-offenders, unquestionably deserved a salutary penalty but some moderation was required because of his late plea of guilty, …"

[5]  The applicant contends that these observations are wrong for the following reasons.  Mr Rollason's counsel in his reply at the sentence hearing stated:

"Just in respect of the nature of plea of guilty at page 580 of the record that's set out by the learned prosecutor where it's stated by reference to my client and also to [another co-offender]: "Their pleas have been notified to the Crown earlier on the basis of a written outline of the facts which was prepared by the Crown and for which there was effectively no dissent."  So there was a statement of facts which was forwarded to the defence, agreed to, the plea was entered. 

THE PRESIDENT:  But at what stage was the plea of guilty notified to the Crown?

ROLLASON'S COUNSEL:  After the reception of the stated facts, so it was timed – the primary time was a reception of the state of – statement of facts.  That's my recollection but I can't – I can't go beyond that and what's sat in the record.

THE PRESIDENT:  Well, I would like to be clear about when the – whether it was an early notification or a late notification of the plea.

ROLLASON'S COUNSEL:  There was a trial listing which was delisted by reason of some matters which involved [another co-offender], so the plea was – I can't say that the plea was – it wasn't a significant period of time before that initial trial listing, the first trial listing, however at that time it seemed apparent the trial was not going to proceed, and then suddenly it was a significant period of time before the trial in fact proceeded it.

THE PRESIDENT:  [Addressing the respondent's counsel]  Are you able to assist with page references for where we'll see -----

COUNSEL FOR THE RESPONDENT:  Her Honour deals with it at the bottom of page 659 starting at about line 40.  So the plea was indicated in March.  There had been a full committal.  The trial had, at that stage, been set for April so that -----

THE PRESIDENT:  Well, that's a relatively early plea then.

COUNSEL FOR THE RESPONDENT:  Yes, although the trial had been listed.  Contrast can be made with the other applicant - the other accused who hasn't appealed against his sentence, Green, which was effectively an ex officio plea, which was of a different character."

[6]  The applicant points out that, in discussing with counsel during the submissions at the appeal hearing, I categorised the applicant's guilty plea as "relatively early".  He contrasts this with my characterisation of the applicant's plea as "late" in my subsequent reasons.  He submits this was "a clear factual error of substance" that compels this Court to now re-open the sentence and to re-sentence Rollason by reducing his sentence by a further two years to reflect the correction of the error.

[7]  Counsel for the respondent makes the following submissions.  Both at sentence and in this appeal, it was clear that Rollason's plea was entered relatively late.  He was charged in November 2004.  He had joint committal proceedings with his co-offenders Brophy and Jenkins over nine court days.  He was committed for trial.  He indicated his guilty plea in March 2007, only after his case had been listed for trial jointly with Brophy and Jenkins for April 2007.  The trial was subsequently re-listed for November 2007.  The sentencing judge gave a three year reduction in the sentences she otherwise would have imposed on Rollason because of his guilty plea which she noted was "not at the earliest opportunity".  The applicant has never contended that this three year discount was insufficient recognition of the guilty plea.  His contention at the appeal hearing was rather that the judge's starting point before the three year discount was too high.  This Court's reference in [35] to Rollason's plea of guilty "on the morning of trial" is not an error: this was when he was arraigned and pleaded guilty.  Even if it were accepted that this Court in Jenkins, Rollason & Brophy at [35] and [37] made a "clear factual error" within s 188(1)(c), this was not an "error of substance", given the timing of Rollason's plea indication and the resulting discount afforded at first instance and in this Court.  Leave to re-open should be refused.

Discussion and conclusion

[8]  There are sound reasons for the long-standing principle of law that judgments, once pronounced and taken out, are final, subject only to rights of appeal.  The community and the parties have an interest in the finality and certainty of judicial decisions in contentious litigation.  Section 188 is an exception to that well-established rule.  It follows that ordinarily, the greater the passage of time after the 28 days allowed to bring an application under s 188(5)(b), the greater the reluctance of the court to re-open the sentence unless it is clearly necessary to do so to avoid a miscarriage of justice.  Section 188 relevantly provides:

"188 Court may reopen sentencing proceedings

(1) If a court has in, or in connection with, a criminal proceeding, including a proceeding on appeal—

…

(c) imposed a sentence decided on a clear factual error of substance;

…

the court, whether or not differently constituted, may reopen the proceeding.

…

(3)  If a court reopens a proceeding, it—

(a) must give the parties an opportunity to be heard; and

(b) may resentence the offender—

…

(iii) for a reopening under subsection (1)(c)—to a sentence that takes into account the factual error;

…

(5)  The court may reopen the proceeding—

(a) on its own initiative at any time; or

(b) for a reopening under subsection (1)—on the application of a party to the proceeding made within—

(i) 28 days after the day the sentence was imposed; or

(ii) any further time the court may allow on application at any time;

… ."

[9]  Section 188 provides a useful tool enabling courts to correct both legal and factual errors, but the desirability for finality in litigation means that it should only be applied in cases which are clearly within its terms: R v DC.[2]The words "clear factual error of substance" suggest that:

"this exceptional procedure should not be invoked in relation to pettifogging points or relatively minor mistakes [but rather where there is] the need for something of sufficient importance as to be likely to call for some material alteration of the sentence."[3]

[10] My statement in [35] of this Court's reasons, that Rollason pleaded guilty on the morning of trial, was correct.  I later described Rollason's guilty plea as "late".[4]  In discussing the issue with counsel during the appeal hearing I referred to Rollason's guilty plea, with counsel for the respondent's concurrence, as "a relatively early plea".  Discussions between the judge and counsel during submissions are not conclusions.  That preliminary observation did not make my subsequent statement in the reasons describing the plea as "late" a "clear factual error of substance".  In some cases, such as that of Rollason's co-offender, Green,[5] a plea of guilty can unequivocally be called an early plea, made at the first opportunity.  In other cases, including Rollason's, whether the plea should be described as "early" or "late" or "relatively early" or "relatively late" is less clear.  Rollason was charged with these offences in November 2004.  He took part in joint committal proceedings with Brophy and Jenkins over nine court days.  He did not indicate his guilty plea to the prosecuting authorities until March 2007, two years and three months after he was charged.  He did not actually enter his plea of guilty until the morning of Jenkins' and Brophy's trial, almost three years after being charged, although the relevant mitigating factor is usually the timing of the guilty plea indication.  The learned sentencing judge described Rollason's guilty plea as being entered "not at the earliest opportunity".  This may be contrasted with my preliminary statement during counsel's submissions that Rollason's guilty plea was "relatively early".  When compared to Green's plea of guilty to an ex officio indictment at the first opportunity, Rollason's was a late guilty plea, indicated more than two years after his initial apprehension.  In any case, the sentence imposed on Rollason, both at first instance and his re-sentence in this Court, generously took into account as a mitigating factor his cooperation by way of his plea of guilty indicated to the prosecuting authorities in March 2007.  The applicant has failed to make out his claim that this Court has made a clear factual error of substance in describing Rollason's guilty plea as "late".  It follows that even if Rollason had provided an adequate explanation for the delay, there is no merit in the application for which he seeks an extension of time.

[11] For these reasons, the application for an extension of time to re-open the sentence under s 188 Penalties and Sentences Act should be refused.

[12] DAUBNEY J: I respectfully concur with the President.

[13] JONES J: I agree with the reasons of the President and the order proposed.