R v Moore[2009] QCA 284

SUPREME COURT OF QUEENSLAND

KEANE JA:  On 19 January 2009 the applicant was convicted on his own plea of four counts of rape, eight counts of sexual assault and one count of indecent assault.  He was sentenced to an effective term of 10 years imprisonment.  A period of 88 days was declared to be time served under his sentence.

On 21 June 2009, that is, about four months after the time for any appeal had expired, the applicant filed an application for an extension of time within which to appeal against his convictions and sentence.

The only ground of challenge advanced in relation to the convictions was that "[t]he conviction is unsatisfactory and contrary to law".  How this was said to be so, bearing in mind that the applicant pleaded guilty to the charges on the indictment, was not explained.  Not surprisingly, the applicant has now abandoned his attempt to appeal against his convictions.

The ground of challenge to the sentence which was originally advanced by the applicant was that the sentence is "manifestly excessive in all the circumstances".  While the applicant was unrepresented, he made a written submission in which he sought to elaborate on this ground contending that:

"1.His Honour heard erred by giving insufficient weight to the guilty plea;

2. His Honour erred in failing to correctly apply s 9(4) of the Penalties and Sentences Act 1992 (Qld).

3. His Honour erred in failing to apply the principle of delay in prosecution;

4. His Honour erred by failing to take into account a period of rehabilitation;

5. His Honour erred in giving excessive weight to prior criminal history;

6. His Honour acted on an error in the submissions of the Crown causing a misunderstanding of the true circumstances of the case by the sentencing Court causing a miscarriage of justice;

7. The sentence was manifestly excessive in all the circumstances."

The applicant is now represented by senior counsel, who pressed only points 3 and 4 of the contentions referred to in the preceding paragraph.

Explanation for the delay

The applicant initially asserted that he was unable to commence an appeal within the prescribed 28 day period because of the "circumstances of [his] accommodation within the Queensland Corrective Services system".  He also said that it took time to receive the "brief of evidence" from his former solicitors.  He also said that he was "unaware of statutes supportive of appeal".

The applicant has now filed an affidavit from which it appears that legal advice was available to him and that he was given legal advice in January and February 2009, as to the limited time available for an appeal and in relation to his prospects on an appeal against sentence.

In the applicant's affidavit, he says that he was assaulted in prison and that because he was in fear for his safety he did not give his case any attention until after the time for an appeal expired.  This is hardly a satisfactory explanation of the long delay which has occurred in this case, but be that as it may, the more important question so far as the application for an extension of time is concerned is whether an extension of time should be granted to prevent a miscarriage of justice.^[1]

The offences in question occurred on the afternoon of 29 March 1997.  The applicant entered premises where the complainant, as 33 year old female, was alone at the time.  He was armed with a machete.  He had never met the complainant before.  He pointed the machete at her, grabbed her by the neck, forced her to the floor and bound her hands behind her back.  He told her to close her eyes.  He pulled her head back by the hair, told her to open her mouth and then spat into her mouth, telling her that he had done so.  He then proceeded over a period of one and a half hours with a series of assaults and rapes to which he pleaded guilty.  The applicant's conduct was particularly degrading to the complainant.

There was not sufficient sample of the applicant's bodily fluids for police to identify his DNA.  In 2005 he came to the attention of the police when his fingerprints were analysed and it was found that they matched prints on a document which he touched during his attack on the complainant.

The applicant's plea of guilty occurred after a committal hearing and was described by the learned sentencing judge as "late".  It was entered on the morning of trial, which was its second trial listing.

Because the offences occurred in 1997, the imposition of a sentence of 10 years' imprisonment did not automatically attract a serious violent offence declaration.  The applicant will therefore be eligible for consideration for parole after serving five years in custody.  It is possible that he will not have the benefit of parole at the earliest point at which he becomes eligible by reason of the nature of his offending and his criminal history.  His criminal history commenced in 1985.  It includes three charges of aggravated assault on a female.  In 1994, he was convicted of indecent assault with circumstances of aggravation and causing grievous bodily harm.  For these offences he was sentenced to five years' imprisonment.^[2]

After committing the offences in question in this case, he was convicted of summary offences, one of which resulted in a sentence of three months' imprisonment in 1998.

On the applicant's behalf, it is emphasised that the applicant committed the offences in question almost 12 years before he was sentenced.  The learned sentencing Judge expressly took into account the circumstance that the offences in question were committed in 1997 and noted, correctly, that the delay which occurred in bringing the applicant to justice was due in large part to the difficulty of identifying the applicant as the offender.  His Honour was not obliged to regard the period when the applicant was at large as a "period of rehabilitation".

The learned sentencing Judge expressly acknowledged that he was obliged to take the plea of guilty into account, and said that he took it into account in reduction of the head sentence.

For brutal rapes such as occurred here, the sentence of 10 years was well within the range, even allowing for the plea of guilty.^[3]  The applicant's criminal history is relevant and is a matter of concern.  He fell to be sentenced as a recidivist even allowing for the lapse of time between his crime and when he was brought to justice, and the passage of time did not reduce the importance of denunciation of these crimes.^[4]

I do not consider that there is a sufficient prospect of a reduction in sentence on the appeal to warrant the grant of an extension of time in this case.

I would refuse the application for an extension of time.

HOLMES JA:  I agree.

CHESTERMAN JA:  I agree.

KEANE JA:  The order of the Court is the application for an extension of time is refused.