SUPREME COURT OF QUEENSLAND

[1]  McMURDO P: The application to extend time should be refused for the reasons given by White JA.

[2]  FRASER JA: I have had the advantage of reading the reasons for judgment of White JA.  I agree with those reasons and with the order proposed by her Honour.

[3]  WHITE JA: The applicant, who appeared for himself by video link from Townsville, seeks an extension of time[1] in which to apply for leave to appeal against sentence.  Although he has ticked both the sentence and conviction boxes on the form and some of the submissions seem to be directed, indiscriminately, at the conduct of a trial which was never held, the applicant confirmed that he seeks an extension of time in respect of his sentence only.

[4] On 8 December 2008 the applicant pleaded guilty in the District Court at Mt Isa before Judge Dearden to one count of grievous bodily harm with intent in relation to serious burn injuries inflicted upon his then partner on 8 April 2008.  He was sentenced to a term of imprisonment of 11 years with an automatic serious violent offence declaration.

[5] The applicant appealed against his conviction and sought leave to appeal against his sentence within time and that appeal was heard on 3 June 2009.  At the hearing his counsel informed the court that only the application for leave to appeal against sentence was to be pursued and, as a consequence, the court dismissed his appeal against conviction.  On 17 July 2009 the court delivered its reasons dismissing his application for leave to appeal against sentence.[2] The applicant’s present application makes no reference to the previous application nor do his affidavit or outline of submissions.  It is very likely that he has received assistance in preparing his written material from someone who was unaware of this history.

Explanation for delay

[6] The applicant gives as the reason for seeking an extension of time that he is an indigent Aboriginal person who has been denied funding to prepare his case.  He writes that he has utilised all his resources to have his case heard as he has been moved around “a lot” from Mt Isa and he finds it difficult to prepare his case.

Grounds of appeal

[7] The applicant contends that:

• the sentence was manifestly excessive;
• his co-operation with the authorities was not recognised;
• his early plea was not recognised;
• his remorse was not recognised;
• s 23 of the Criminal Code was not given due regard as he was drinking heavily and there was never any intent “only accident”;
• his prospects of rehabilitation were not considered;
• his youth was not considered.

In his supporting affidavit and submissions the applicant further contends that he is aggrieved because the sentencing court took into account that the complainant was pregnant when he inflicted the injuries on her which, he contends, was not true and he was thereby impermissibly prejudiced.

The application for leave to appeal heard on 3 June 2009

[8] The President, with whom Fraser JA and Cullinane J agreed, set out in her reasons the applicant’s background, prior relevant criminal history and the circumstances of the offending.  Her Honour described the applicant’s movements thereafter:[3]

“Woodman visited a missionary in Townsville, Ms Hazel Lauridsen, shortly after committing the offence.  He asked her to pray for him and the victim.  He was frightened that her relations would kill him.  He said, “I’ll get 10 years for this.”  He told Ms Lauridsen that the victim was pregnant at the time.  Ms Lauridsen tried to persuade Mr Woodman to hand himself in to the authorities.  He was not so much worried about the police as being killed by his partner’s relatives.  Ms Lauridsen asked him, ‘What made you do it?”  He responded, “I don’t know, I don’t know.  My brain just went funny.”  He asked her to ring the hospital and check on the victim.”

[9] Her Honour then set out the principal submissions on sentence of the prosecutor[4] and those of defence counsel[5] and summarised the remarks of the sentencing judge.  On appeal the submissions for the applicant were, as recited by her Honour, as follows:[6]

“The sentencing judge placed too much emphasis on Williams,[7] a more serious offence than this.  Williams did not plead guilty at such an early stage as Woodman, and only after contested committal proceedings.  He was 38 years old, significantly older than Woodman, and his offending involved greater premeditation.  Although Woodman’s criminal history was worse than Williams’, that feature alone did not justify the same sentence as in Williams:  Veen v The Queen (No. 2).[8]  Additionally, the judge gave insufficient weight to Woodman’s plea of guilty which spared the complainant the ordeal of cross-examination, and indicated remorse, acceptance of responsibility and a willingness to facilitate the course of justice.  R v Wentworth,[9] R v Lyon,[10] R v Mitchell[11] and R v Holland[12] supported the submission made at first instance that a sentence of eight to nine years imprisonment with a serious violent offence declaration was the appropriate sentence.  Had the matter gone to trial, a penalty of no more than 12 years imprisonment would have been imposed.  This demonstrates that the sentence in fact imposed did not give adequate recognition to the mitigating features, especially to the plea of guilty, the drunken intent and the limited premeditation.”

Her Honour discussed the sentences in Wentworth,[13] Lyon[14] and Mitchell,[15] cases upon which the applicant continues to rely, as well as Williams[16] and Holland.[17]

[10]  In her conclusion her Honour said:[18]

“Woodman formed an intention, albeit a drunken intention after consuming methylated spirits and without extensive premeditation, to do grievous bodily harm to his literally long-suffering partner, the mother of his children, whom he knew was pregnant with his child.  He carried out that intention in a dreadful way.  He poured methylated spirits over her head, face and upper body and set fire to her.  She suffered shocking burns, excruciating pain, a lengthy period of hospitalisation and rehabilitation, permanent scarring and extensive physical and psychological injuries.  He was frightened by what he had done and especially about the consequences of it for him.  He expressed some remorse but not enough to surrender himself to the authorities.  He fled to the Northern Territory and was not apprehended for about three months.  To his credit, he did plead guilty at an early stage and the victim was not required to give evidence, even at committal.  He has a shameful criminal history for offences of violence, including against the present victim.”

[11]  Her Honour proceeded to consider the mitigating features on behalf of the applicant, namely, his early plea of guilty, his relative youth and his efforts at rehabilitation while in pre-sentence custody and that his actions were committed without much premeditation and with a drunken intent.  She noted that but for those matters, the applicant’s case would have been close to the category of worst example of the offence of doing grievous bodily harm with intent.  She noted that pursuant to s 9(4)(g) and (h) of the Penalties and Sentences Act 1992, the applicant’s previous convictions for offences of violence were relevant in sentencing despite the observations made by the High Court in Veen (No. 2),[19] a case upon which the applicant continues to rely.

Discussion

[12]  By s 668D of the Criminal Code a person convicted on indictment may appeal to this Court:

“(a)against the person’s conviction on any ground which involves a question of law alone; and

(b) with the leave of the Court, or upon the certificate of the judge of the court of trial that it is a fit case for appeal, against the person’s conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the Court to be a sufficient ground of appeal; and

(c)with the leave of the Court against the sentence passed on the person’s conviction.”

By s 671 of the Criminal Code any person convicted desiring to obtain the leave of the court to appeal from any sentence must give notice within one calendar month of the date of sentence but that time may be extended “at any time” by the court.

[13]  This Court has repeatedly held that where an appeal has been dismissed on its merits, the Court has no jurisdiction to hear a further appeal.[20]  The cases refer to Grierson v The King as the founding authority.[21]  In that decision, the High Court noted that the entitlement to appeal a conviction is statutory[22] and as a matter of construction:[23]

“…a second appeal from a conviction could not be entertained after the dismissal, upon the merits, of an appeal or application for leave to appeal and that the first appeal could not be reopened after a final determination.”

Dixon J noted[24] that in England, the Court of Criminal Appeal exercised a discretion to allow a prisoner to withdraw his notice of abandonment, notwithstanding that such a notice operated as a dismissal of the appeal.  That course was explained because there had been no determination of the appeal by the court.

[14]  The issue is whether the same stricture applies to an application to extend time to file an appeal or application for leave to appeal.  The Court of Criminal Appeal in R v Smith (No. 2)[25] followed the reasons of Lucas J in R v Smith[26] concerning sequential applications for extensions of time in which to seek leave to adduce (different) fresh evidence as a ground of appeal.  Lucas J concluded, in relation to s 671(1):

“What may be extended by the Court therefore is the time within which notice of appeal must be given.  It seems clear enough that a person may only give one notice of appeal and have one appeal heard, which is the effect of the decision of the High Court in the case which I have mentioned [Grierson].”

His Honour continued:

“It seems to me to follow that the question whether the applicant should be allowed extra time within which to give the notice of appeal has already been finally determined by this Court in February this year and it is a question that cannot be reopened.”

His Honour considered that any injustice which might be caused in any given case in adhering to that approach could be cured by the provisions of s 672A of the Criminal Code.[27]

[15]  In R v AP,[28] the applicant brought a second application to extend time to appeal against conviction on different grounds to the first application which had been dismissed on the merits.  The President adverted to Grierson and the two Smith cases but concluded, on the question whether the court had jurisdiction to determine the second application for an extension of time, that since the grounds of appeal sought to be argued were without substance, it was unnecessary to express a concluded view.[29]

[16]  Davies JA observed that an application to extend time within which to appeal against conviction was plainly more interlocutory than an application for leave to appeal and:[30]

“…such an order does not preclude this Court from hearing a further such application, though if it were based on the same grounds it would be bound to fail.”

[17]  Recently in R v Riley,[31] this Court considered a second application for an extension of time within which to appeal against conviction and sentence after an earlier application had been considered, including the merits of the grounds of appeal, and dismissed.  The applicant on the second application raised grounds which the Court characterised as substantially different from those argued previously.[32]  Ann Lyons J did not express a concluded view as to whether there can be a further application for an extension of time after an unsuccessful earlier application but commented:[33]

“In determining whether to exercise the discretion to extend the time for appealing the Court considers whether there is good reason to account for the delay and essentially whether the Court considers that it is overall in the interests of justice to grant the extension.  It is clear that in this respect the viability of the proposed appeal must be considered.”

With respect, that must be so. 

[18]  Some applicants on subsequent applications in the past have attempted to raise general considerations of justice sourced in what was previously s 8(1) of the Supreme Court Queensland Act 1991[34] and now in s 58(1) of the Constitution of Queensland 2001.  It is clear from the judgments of Davies and Pincus JJA in R v Lowrie[35] that s 58(1) does not confer any additional criminal appellate jurisdiction on this Court in addition to that derived from ch 67 of the Criminal Code.

[19]  Unless convincing reasons are advanced for the delay, an explanation is given as to why the matters that the applicant now wishes to agitate were not raised on the previous application, and the grounds of appeal are, in truth, different from those previously considered by the court and are likely to be successful, the application is, as Davies JA observed in A, bound to fail. 

[20]  The overriding principle must be whether the court considers that it is in the interests of justice[36] to grant the extension of time.  As is clear here, this Court has already considered the grounds of appeal now advanced by the applicant.  Nothing fresh has been raised[37] and the application for leave to appeal the sentence and the merits of any appeal have been fully considered.

[21]  I would refuse the application for an extension of time.