SUPREME COURT OF QUEENSLAND

[1] MUIR JA:  I agree with the reasons of Fraser JA and with the order he proposes.

[2]  FRASER JA: On 8 September 2010 the applicant pleaded guilty in the District Court to five offences of using a carriage service to harass, contrary to s 474.17(1) of the Criminal Code (Cth).  He pleaded not guilty to an offence contained in a separate indictment and that offence was listed for trial.  Subsequently a nolle prosequi was entered in respect of that separate indictment. 

[3] On 10 June 2011 the applicant was sentenced on each of the five counts to which he had pleaded guilty to 12 months imprisonment, to be released forthwith upon giving security by recognizance in the sum of $1,000 conditioned that he be of good behaviour for five years and that he will during a period of two years be subject to the supervision of a probation officer.

[4] On 13 July 2011 the applicant filed an application for an extension of time within which to appeal or apply for leave to appeal and a notice of appeal against conviction and application for leave to appeal against sentence. 

[5] In considering an application for an extension of time, the Court considers the length of the delay (it being much easier to excuse a short delay than a long delay), any explanation for it, and whether it is in the interests of justice to grant the extension (which may involve some assessment of whether the proposed appeal is viable).[1]

[6] The Court does not have a record of the proceedings on 8 September 2010 when the applicant pleaded guilty and the transcript of the sentencing remarks on 10 June 2011 records that the sentencing judge convicted the applicant on that date.  I will therefore assume that the proposed appeal against conviction, like the proposed application for leave to appeal against sentence, was filed only a few days out of time.  The applicant’s explanation for the delay is that his solicitor only forwarded to him what the applicant contends was material he had requested on 7 July 2011, not leaving him much time to obtain legal advice about filling in the necessary forms.  The explanation is not verified on oath and it is not particularly persuasive.  However, in view of the short period of the applicant’s delay the more significant question is whether the proposed appeal and application have any real prospects of success.

[7] It appears that the applicant had retained the complainant barrister to perform some professional work.  Some years later the applicant was unhappy with the ways things had turned out and he blamed the complainant.  The applicant wanted the complainant to return the $300 that the applicant had paid him for the professional services.  It seems from the applicant’s oral submissions that he also sought the return of some documents.  The applicant then embarked upon a campaign of harassment through the fax machine.  The sentencing judge observed that the applicant’s faxes were insulting and abusive, with obscenities and threats to harm the complainant professionally escalating along with the applicant’s demands for a refund or reparation.  The sentencing judge concluded that the applicant wanted to intimidate or embarrass the complainant, and that the applicant threatened the complainant’s career and caused him some stress.

[8] The proposed notice of appeal contends that the applicant’s convictions of the five offences of using a carriage service to harass should be quashed on the grounds that the complainant “threatened me, stole from me, told lies to me, was my fax to [sic] harmful to get a reply?” That was expanded upon in the applicant’s oral submissions and in a document attached to the notice of appeal which contends, in summary, that the complainant was a liar, a tax cheat and a GST cheat, that he was incompetent and refused to communicate with the applicant, and that “[a]s a last resort & frustration I sent him these faxes”.  The applicant argued that he merely expressed his opinion, that what he said was true and fair comment, and that, instead of complaining to the police, the complainant should have sued the applicant for defamation or ignored the applicant and got on with his work.

[9] Whether or not there was any reasonable basis for the applicant’s grievances about the complainant’s conduct (and no such basis is apparent upon the limited material available in this application), those grievances could not justify or excuse the applicant’s offences.  The applicant’s arguments serve only to suggest that he is not remorseful and that he lacks insight into his wrongdoing.

[10]  The applicant also argued that he was “denied natural justice” and that his “legal team had years, a folder 6 inches thick for my defence, yet on the day virtually said nothing”.  However the applicant did not adduce any evidence which supported either contention.  Nor did he adduce any evidence which explained why he pleaded guilty if he was not in truth guilty of the offences.

[11]  The applicant’s implicit application for leave to withdraw his pleas of guilty must be approached with considerable caution.[2]  The applicant was represented by a lawyer when he pleaded guilty and he acknowledged in the course of oral argument that he pleaded guilty after receiving legal advice.  Importantly, there is no evidence that when the applicant entered his pleas of guilty he was not of sound mind and understanding or that he did not exercise a free choice in his own interests.  In these circumstances, even proof that the applicant was not in truth guilty of the offences would not suffice to demonstrate that there was any miscarriage of justice in the applicant’s convictions upon his pleas of guilty.[3]  Not only is there no such proof, there is no evidence to contradict the applicant’s admissions by his pleas of guilty of all of the elements of the offences and that all available defences had been negatived.[4]  Nor is there any other circumstance which suggests that the applicant has been the victim of a miscarriage of justice.

[12]  In relation to the proposed application for leave to appeal against sentence, the applicant contends that the penalty was too harsh and that the five year good behaviour period was too long.  In that respect, the prosecutor submitted to the sentencing judge that the applicant should be required to serve some time in actual custody, but the sentencing judge found that this was not required.  The sentencing judge was satisfied that imprisonment was the only appropriate penalty because of the applicant’s persistent re-offending.  Her Honour noted that between 2003 and 2005 the applicant had harassed six different people using the telephone or the fax machine, all of those victims being people the applicant felt had wronged him in some way.  The applicant was sentenced to probation for two years and that was subsequently replaced by a 12 month sentence of suspended imprisonment.  The applicant committed the present offences just over a year after he had completed the latter sentence.  The sentencing judge remarked that in these circumstances the applicant could not expect to be treated leniently, although the sentence must be proportionate to the level of the applicant’s conduct.

[13]  The sentencing judge noted that the applicant suffered post-traumatic stress as a result of having been bashed years before these offences, after the applicant was charged he undertook a course of psychological treatment, and a psychologist considered that the applicant was suffering from chronic depression and alcoholism.  The sentencing judge took those circumstances into account and made it a special condition of the probation order that the applicant should receive such counselling and treatment as was deemed appropriate by the applicant’s probation officer after consideration of the psychological report.  Her Honour also took into account the applicant’s pleas of guilty, and that he had readily admitted his conduct to the police and explained that he engaged in it because he was angry.  However, as the sentencing judge noted, the applicant must have known that his conduct was against the law because he had been in trouble for the same kind of offence before. 

[14]  The mitigating circumstances were taken into account in the order for the applicant’s immediate release upon recognizance.  The sentence was plainly within the discretion of the sentencing judge when regard is also had to the applicant’s calculated, persistent, and escalating harassment of the complainant, the predictable stress which the complainant suffered as a result of that harassment, the applicant’s history of similar offences, and his conduct in committing the offences only just over a year after he had completed a 12 month sentence of suspended imprisonment for a previous similar offence.

[15]  The applicant has no realistic prospect of succeeding in his proposed appeal against convictions or in his proposed application for leave to appeal against sentence.  Accordingly, I would refuse the application for an extension of time.

[16]  MARGARET WILSON AJA:  I agree with the order proposed by Fraser JA and with his Honour’s reasons for judgment.