R v Thomas[2010] QCA 201

COURT OF APPEAL

McMURDO P

MUIR JA

APPLEGARTH J

CA No 122 of 2010

SC No 389 of 1992

THE QUEEN

 v

 GEOFFREY RONALD THOMASApplicant

BRISBANE 

DATE 05/08/2010

JUDGMENT

THE PRESIDENT:  The applicant, Geoffrey Ronald Thomas, has applied for an extension of time to appeal against his conviction and sentence.  He was convicted after a jury trial of murder on 14 July 1993 and sentenced to life imprisonment.

His appeal to this Court against his conviction for murder was dismissed on 13 October 1993.  See R v Thomas, CA No 266 of 1993.

It follows that this Court has no jurisdiction to entertain a second appeal against conviction.  Grierson v The King (1938) 60 CLR 431, Elliott (2007) 234 CLR 38 42 paragraph 7, R v MAM [2005] QCA 323 and R v Nudd [2007] QCA 40.

Mr Thomas's application for an extension of time to appeal against his conviction must be refused but, in any event, Mr Thomas's written and oral submissions addressed only his desire to appeal against his sentence which he described in his written submissions as "excessive...because it is resulting in incorrect information being used to determine my suitability for release and thus, in effect, giving me a life sentence without parole.  This error has been repeated continually since early 2004 at least according to documents supplied to me by the Parole Board of Queensland in late 2009."

He states that he wants this Court to remit his sentence to the Trial Division so that it can be re-opened under s 188(5)(b) and (c) Penalties and Sentences Act 1992 (Qld).

He explains the reason for his very substantial delay in bringing this application was because he only became aware of the error in the sentencing proceeding in early July 2010 when he received copies of his Parole Board file.

The sentencing Judge's comments prior to passing sentence in July 1993 were understandably brief as the Judge had no discretion as to the penalty to be imposed for the offence of murder.  Under s 305(1) of the Criminal Code of Queensland, murder is punishable by life imprisonment which cannot be mitigated or varied.

After imposing that sentence of life imprisonment, the Judge noted, "You would normally become eligible for parole after serving a significant portion of that term.  If not eligible for parole, you would certainly be considered for parole after the expiration of a term of years.  The Crown has placed before me your other conviction for manslaughter.  It is said that you had been drinking on that occasion and perhaps that explains why the jury were not persuaded there was intent in that case.  The jury in this case have been satisfied that you did intend to kill the man.  You did him a very serious injury and in light of your previous conviction which was not really very long before this one, 4 July 1990, non-parole for three years and six months, this offence was in August of 1992, one wonders how such a thing can happen but I suppose there were remission provisions under the legislation in Victoria.  I simply make the point that in considering any application for parole that you might make, the authorities give very careful consideration to your previous history, the fact that this is the second time in which you have been involved in the killing of a man for no sensible or rational reason and keep in mind the desirability of making sure that you have mended your ways or changed whatever motivation you had for killing these people before you are set free in the community again."  (My emphasis).

During the submissions preceding sentence, the Prosecutor told the sentencing Judge that Mr Thomas "pleaded guilty in the Supreme Court in Melbourne on 14 March of 1990 to an offence of manslaughter."

The italicised portion of the Judge's sentencing remarks, which I have set out, demonstrates that his Honour misstated that Mr Thomas was convicted of manslaughter after a jury trial when, in fact, he pleaded guilty to the offence of manslaughter.

Mr Thomas believes that this mistake is the reason why he has not yet been released on parole or, at least, may be related to it.  There is no need for this Court to determine whether Mr Thomas's belief is well-founded.

The short and complete answer to his application for an extension of time to appeal against sentence is that it would be pointless to extend time as the only penalty able to be imposed upon him was that imposed, life imprisonment.

If this application is treated as an application to re-open Mr Thomas's sentence under section 188 Penalties and Sentences Act, Mr Thomas continues to face an insurmountable hurdle.  It is doubtful whether his application is rightly brought to this Court under section 188 as this Court was not the Court which sentenced him.  See McPherson JA's observations in R v McQuire [2004] 1 Qd R 685 689 para 12.  Although for my part, I would take a wider view of s 188 where the interests of justice required it but more importantly, the terms of s 188 have no application in this case.  The section relevantly provides, and here - I won't read it but I'd ask the court reporters to set out s 188(1)(a) to (d).

Mr Thomas refers to s 188(5)(b) and (c).  Section 188(5)(b) allows a Court to extend time to bring an application.  Section 188(5)(c) refers to re-openings under s 188(1)(d).  The misstatement of fact in the primary Judge's sentencing remarks had no impact on the sentence imposed, so that s 188(1) is not invoked.  As to s 188(1)(d), no Court can fix a date for Mr Thomas to be released on parole for the offence of murder.

In case it assists Mr Thomas in future applications to the Parole Board, I will direct that a transcript of these proceedings be made and supplied to him so that he can inform the Parole Board of the true position explained to Justice Ambrose on 14 July 1993 by the Prosecutor.  It is that Mr Thomas "pleaded guilty in the Supreme Court in Melbourne on 14 March of 1990 to an offence of manslaughter.  He was sentenced on 4 July of 1990 to six years' imprisonment with a minimum of three years and six months or a non-parole period, at least, of three years six months."

The orders I propose are:

(1)The application for an extension of time to appeal against conviction and sentence is dismissed.

(2)A copy of these reasons is to be prepared and provided to Mr Thomas.

MUIR JA: I agree.  I note that the Court did not have the benefit of any submissions on the construction of section 188.  I do not suggest that any should have been made.

APPLEGARTH J: I agree with the reasons given by the presiding Judge and the orders proposed.

THE PRESIDENT:  The orders are as I have set out.