SUPREME COURT OF QUEENSLAND

[1]  MUIR JA: I agree that the application for leave to appeal should be refused for the reasons given by Mullins J.

[2]  WHITE JA: I have read the reasons for judgment of Mullins J and agree with her Honour and the order which she proposes.  I would only add that while the applicant before us emphasised that the complainant’s conduct towards him was often physically violent, he did not seek to argue that he had any defence to the charges in respect to which he pleaded guilty.

[3]  MULLINS J:  The applicant pleaded guilty in the District Court at Toowoomba on 24 November 2009 to two counts of common assault, one count of enter dwelling by break and use violence, two counts of assault occasioning bodily harm and one count of sexual assault. 

[4] The applicant was sentenced to imprisonment for four years in respect of the enter dwelling by break and use violence, three years’ imprisonment in respect of each of the assaults occasioning bodily harm and the sexual assault and 12 months’ imprisonment in respect of each of the common assaults.  All the terms of imprisonment were ordered to be served concurrently.  The date on which the applicant will be eligible for parole was fixed at 23 November 2010 which is after serving a period of 12 months. 

[5] The application for an extension of time within which to appeal against conviction and to apply for leave to appeal against sentence was filed by the applicant who is self-represented over three months late on 29 March 2010. 

[6] The applicant explained his delay in filing an appeal or an application for leave to appeal against sentence on the basis that he was suffering severe depression and anxiety and, after he was sentenced, he was kept under observation at the prison and did not receive the letter from his solicitor advising on an appeal against the sentence until over three weeks after he was sentenced.  After speaking to a different solicitor in mid-January 2010, he then obtained legal advice about applying for an extension, but there was some delay in obtaining the opinion of counsel.  Although that is not a satisfactory explanation for the delay, that would not prevent the extension of time to appeal, if it were otherwise in the interests of justice to grant the extension.

The offences

[7] The complainant in respect of the offences was a woman with whom the applicant had previously been in a relationship.  The offences related to two separate episodes of violence against the complainant.  The first episode occurred on 3 March 2009 and resulted in the charges of common assault.  The applicant went to the house where the complainant was staying, the complainant attempted to hide from him, but the applicant was verbally abusive and began to choke the complainant.  He let go of her throat and slammed her into the bed three or four times and hit her head about six times with a closed fist.  He punched the complainant in the stomach three times.  He continued to abuse her verbally.  That series of conduct constituted the first count of common assault.  The applicant then left that house, as did the complainant.  While she was driving, the applicant followed her in his car.  When she stopped outside a friend’s house, the applicant approached her and was verbally abusive and there was a short scuffle during which the applicant punched the complainant in the stomach.  That resulted in the second count of common assault. 

[8] The second episode occurred two days later on 5 March 2009.  The complainant was in the shower in her house when, without any authority and in breach of a domestic violence order, the applicant entered the house by opening the screen door, giving rise to the count of burglary, and assaulted the complainant.  He was verbally abusive and grabbed the complainant and dragged her out of the shower onto the floor and put his knee on her stomach and began choking her.  This conduct was the subject of one of the counts of assault occasioning bodily harm.  The applicant then stopped choking the complainant and began to poke at her genitalia, continuing to verbally abuse her, and then grabbed the complainant’s genitalia and skin and pubic hair and pulled at it which resulted in the count of sexual assault.  The applicant then told the complainant to get dressed, was threatening, and punched her in the stomach and bit her on the nose.  This conduct resulted in the second count of assault occasioning bodily harm.  Although the complainant did not have any significant residual physical effects from the assaults, she described herself as emotionally scarred from the attacks.

The applicant’s history

[9] There was evidence before the learned sentencing judge that the applicant had sustained a significant work injury more than 15 months prior to the date of the sentence and had been on compensation until his employment was terminated shortly before the sentence date.  He had suffered both physical and mental injuries in the work accident and developed an adjustment disorder with depression.  He was under psychiatric care from 28 November 2008 as a result of the work injury and had a prior history of a major head injury which resulted in memory disturbance.  The applicant’s counsel tendered at the sentence hearing letters from the applicant’s treating psychiatrist dated 29 April 2009 and 23 November 2009 and a letter from The Advocacy & Support Centre dated 18 November 2009 that dealt with his mental health issues.  The applicant’s treating psychiatrist had reviewed the applicant on 19 November 2009 and referred him to the Toowoomba Hospital for treatment as an inpatient, because of concerns for his safety.  The prosecutor at the sentence also tendered a letter from a psychiatrist at the Toowoomba Hospital, Dr Schwarcz, that stated that the applicant was fit to stand trial. 

[10] The applicant was 46 years old at the date of the sentence and had a dated criminal history that was not relevant to the sentencing.  The applicant’s relationship with the complainant had terminated shortly prior to the commission of the offences.  The relationship had been volatile and there were mutual domestic violence orders in place requiring each party to be of good behaviour and not commit an act of domestic violence against the other.  The applicant was not, however, subject to a non-contact order in relation to the complainant when the offences were committed. 

Appeal against conviction

[11] The applicant seeks to resile from his guilty pleas.  He needs to show that there would be a miscarriage of justice, if the convictions were not set aside:  Meissner vThe Queen (1995) 184 CLR 132, 141.  The grounds that the applicant relies on to establish a miscarriage of justice were his mental state when he pleaded guilty and that he claimed that his lawyers advised him to plead guilty, as he had no money left to fund his legal representation and they would not continue to act for him, if he did not plead guilty.  Apart from the letters from his psychiatrist and The Advocacy & Support Centre that were tendered on his behalf at the sentencing, the written material relied on by the applicant for the purpose of applying to extend the time to appeal against his conviction comprised the contents of his letter addressed to the court that was received by the court on 11 May 2010 and entries from the Toowoomba Hospital file relating to his period in the Acute Mental Health Unit between 19 and 24 November 2009 that the applicant tendered and were marked exhibit 1 on the hearing of the application. 

[12] Dr Schwarcz provided a letter to the applicant’s counsel on the day of the sentencing which stated:

“This letter is in regards to Mr Stemm’s fitness to stand trial.

Mr Stemm was assessed this morning, and is naturally stressed and anxious about appearing in court today, especially as the court appearance date has moved forward.

Mr Stemm understands the nature of his charges and the nature of court proceedings.  He has the ability to challenge jurors and to decide what defence to offer.  He also has a clear understanding of the nature of the charges and the pleas available to him.  He is keen to put his version to the Court.

Should Mr Stemm not be imprisoned today, then I recommend that he be returned to Toowoomba Mental Health Unit for discharge and discharge planning, so that he is aware of the available supports in the community and how he may access them.”

[13] Dr Schwarcz was not the applicant’s treating psychiatrist in the Mental Health Unit, as that psychiatrist was absent on 24 November 2009, but Dr Schwarcz did the assessment of the applicant on that date.  Apart from what Dr Schwarcz stated in her letter, she recorded in the Toowoomba Hospital progress notes that the applicant felt he had wasted $12,000 on legal fees for his lawyer to tell him to plead guilty.  It was noted that the applicant said he was guilty of some of the charges, but he was not guilty in respect of others and claimed that his girlfriend had lied and his witnesses had all moved to different States.

[14] The applicant was represented at the sentence hearing by experienced counsel and solicitor who were cognisant of his mental health issues because of the letters that were tendered at the hearing dealing with that issue and the submissions made on behalf of the applicant in relation to his capacity and medical history.  The transcript of the sentence hearing shows that the applicant entered pleas of guilty when arraigned and that he was able to give instructions to counsel during the course of the hearing on specific matters that required further instruction. 

[15] In relation to the applicant’s allegation that his lawyers said they would abandon him, if he did not plead guilty to the offences, and he had otherwise run out of funds to defend the charges, there is no sworn evidence before the court of such conversations or of facts which would assist in defending the charges.  In any case, the applicant’s lack of funds to engage lawyers for a trial of the offences would have been a relevant consideration for legal advice.  When the allegations that have been made by the applicant are considered in conjunction with the material that is before the court, the applicant does not have any real prospects of showing that his pleas of guilty were entered otherwise than in the exercise of a free choice on his part, having regard to his interests at that time.  The applicant has not shown that, if an extension of time were granted, he has a viable appeal against his convictions. 

Appeal against sentence

[16] In relation to the sentences imposed on the applicant, the applicant asks the court to consider parole options and his eligibility date.  The ground of appeal that is raised implicitly in his submissions is that the sentences were manifestly excessive.  The sentencing judge was referred to comparable sentences including Billy [1997] QCA 290, Forrester [2008] QCA 12, Ramm [2008] QCA 13 and Troop [2009] QCA 176 which support a sentence of four years’ imprisonment for the burglary committed in circumstances involving some violence and an assault of a sexual nature against the complainant and where the common assaults had been committed against the same complainant only two days earlier. 

[17] Even allowing for the applicant’s mental health issues and his guilty pleas, the effective head sentence of four years, with a parole eligibility date after serving 12 months’ imprisonment, is not outside the range of sentences appropriate for the applicant’s offending. 

Order

[18] The application for extension of time within which to appeal against conviction and to apply for leave to appeal against sentence should be refused.