SUPREME COURT OF QUEENSLAND

MULLINS J:  The applicant seeks an extension of time in which to apply for leave to appeal against the sentences imposed on him on 19 December 2007 when he pleaded guilty to sexual offences on one indictment involving his daughter and on a second indictment involving his stepdaughter.

There were 23 counts on the first indictment.  The offending took place between June 2002 and October 2006.  The applicant was sentenced to 11 years' imprisonment for one count of maintaining a sexual relationship, nine years for each of 10 counts of rape and six years for each of 12 counts of indecent treatment of a child or attempted indecent treatment of a child.

There were 14 counts on the second indictment.  The period of offending involving the stepdaughter was about one year from October 2005.  On the second indictment the applicant was sentenced to seven years' imprisonment for one count of maintaining a sexual relationship, six years for each of four counts of rape and five years for each of nine counts of indecent treatment of a child or attempted indecent treatment of a child.

Each of the sentences for the offences of maintaining and rape were declared to be serious violent offences.  All sentences were concurrent with each other.

The applicant was 41 years old when sentenced.  He committed the offences when aged between 36 and 40 years.  The offences against his daughter commenced when she was 11 years old.  The offences against his stepdaughter commenced when she was nine years old.  The offending was revealed when the daughter made disclosures to her teacher.

The ground on which the applicant seeks leave to appeal the sentences is that they are manifestly excessive.  The applicant appears for himself on this application for extension of time.

An explanation was offered by the applicant in his application for extension of time for why he had not filed an application for leave to appeal at an earlier time.  When he asked his barrister about appealing after he had been sentenced the barrister told him, "You are not appealing."

After being taken into custody he did speak about an appeal with family members but he was uncertain about what to do and did nothing.  The applicant has little education and has difficulty reading and writing.  The applicant did obtain advice in July 2008 from the Legal Aid prisoner advice service about how to apply for an extension of time. 

He obtained the necessary forms but did not lodge them as he was concerned that he may get a higher sentence.  He finally lodged the application on 27 November 2008, which was over 10 months out of time, after having discussed the matter again with family members.  This is not a satisfactory explanation for the delay.

In determining the application for the extension it is also relevant to consider whether a provisional assessment of the strength of the applicant's application for leave to appeal against sentence can be made, R v Tait [1999] 2 Qd R 667,668.

The majority of the offences against the daughter occurred over a two-and-a-half-year period within the dates particularised on the indictment.  There was persistent sexual conduct ranging from masturbation of the applicant through to anal and vaginal rape.  On some occasions the conduct involved the use or threatened use of physical violence including the use of a knife.  There were over 60 occasions of sexual interference of the applicant's daughter.  Some of the acts of rape involved unprotected penetration. 

The offences involving the applicant's stepdaughter included exposing her to a pornographic DVD and rapes constituted by oral sex.  There was persistent violence, including a threat to get rid of the stepdaughter's dog if she did not cooperate with masturbating the applicant.

The applicant was legally represented at his sentencing.  He had experienced counsel, instructed by Legal Aid Queensland, who expressly agreed with the range of head sentence put forward by the Prosecutor before the sentencing Judge for the maintaining charge on each indictment.

In relation to the maintaining charge on the first indictment, that range was 10 to 11 years, with the Prosecutor arguing for a sentence at the higher end of that range.

Counsel for the applicant during the sentence hearing acknowledged that he could not argue against a head sentence of 11 years.  The Prosecution before the sentencing Judge and on this application relied on R v SAG [2004] QCA 286 as a comparable sentence that supported the head sentence of 11 years for the most serious of the charges and for extracting the various factors pertinent to the applicant's conduct that determined the range of sentence.

There is nothing in the sentencing Judge's remarks or his reliance on R v SAG [2004] QCA 286 that suggests that there are any reasonable prospects of a successful appeal against the sentence.

At the hearing of this application the applicant raised his concern that before the sentencing hearing his sister saw his counsel talking to the Prosecutor's assistant, who the applicant said was a relative of the complainants.

The applicant conceded that he had not pursued this allegation by making inquiries about the conversation and this was the first time that the allegation was raised for the purpose of the application to this court.  There was no material, such as from his sister, put before the Court by the applicant to show how the allegation was relevant to his application for leave to appeal against the sentence.

During oral submissions the applicant's complaint against his lawyers extended more generally to the conduct of the lawyers when acting for the applicant on his sentencing.  There is nothing, however, in the material that is before the Court that gives any substance to these complaints.

The applicant has not shown that it is in the interests of justice that he obtain an extension of time in which to apply for leave to appeal against sentence.

The application must be dismissed.

CHESTERMAN JA:  I agree.

DOUGLAS J:  I agree.

CHESTERMAN JA:  The order of the Court is the application for an extension of time within which to apply for leave to appeal against sentence is refused.