R v Graham[2012] QCA 15

SUPREME COURT OF QUEENSLAND

[1] FRASER JA: I agree with the reasons for judgment of Atkinson J and the order proposed by her Honour.

[2] WHITE JA: I have read the reasons for judgment of Atkinson J and I agree with her Honour’s reasons and the order which she proposes.

[3] ATKINSON J: On 8 December 2011, Christopher Graham filed a notice of application for an extension of time within which to apply for leave to appeal against sentences imposed upon him by Wall DCJ on 25 February 2009 in respect of the offences of unlawful use of a motor vehicle and dangerous operation of a motor vehicle causing grievous bodily harm before leaving the scene and the summary offences of driving while disqualified and failing to stop.  His grounds for making the application for an extension of time were that he did not know much about the law at the time he was sentenced, he thought his sentence was too harsh given his mental problems, he was not granted parole on his parole eligibility date and he wished to be released from prison to access medical treatment.

[4] The applicant had been sentenced on 25 February 2009 by Wall DCJ but not for those offences.  The sentences that the applicant sought leave to appeal were in fact imposed in respect of those offences by Botting DCJ on 18 May 2011.  The respondent did not object to the application being treated as an application made with regard to the sentences imposed on 18 May 2011.

[5] On 18 May 2011, the applicant was sentenced by Botting DCJ in the District Court in Maryborough to three years imprisonment in respect of the dangerous operation of a motor vehicle with circumstances of aggravation, 18 months imprisonment in respect of the unlawful use of a motor vehicle and convicted but not further punished with regard to the summary offences.  He was disqualified from holding or obtaining a driver’s licence for a period of five years.  The sentences were to be served concurrently but cumulatively upon the sentence he was already serving.  His parole eligibility date was fixed at 31 October 2011.

[6] In order to understand the practical effect of this sentence, it is necessary to consider the applicant’s criminal history and the sentences previously imposed upon him.

[7] Between September 2006 and 2007, the applicant was convicted of seven counts of unlicensed driving and one count of disqualified driving.

[8] In March 2008, he was sentenced by Botting DCJ to 18 months probation and 150 hours of community service in respect of the offences of burglary, stealing, fraud, entering premises, two counts of unlawful use of a motor vehicle and two summary offences.  He breached the probation and community service orders, inter alia, by committing more offences on 7 September 2008 including unlawful use of a motor vehicle, dangerous operation of a motor vehicle and driving whilst disqualified.

[9] On 10 November 2008, the applicant was sentenced by Martin DCJ in the District Court on his plea of guilty to the offences committed on 7 September 2008.  His Honour also resentenced the applicant for the offences for which he was sentenced on 20 March 2008.  The sentences imposed were structured to reflect the overall criminality of his offending and to reflect the fact that the applicant was still very young, being 17 years old at the time of the offences for which he was sentenced by Botting DCJ in March 2008 and 18 years old at the time he fell to be sentenced by Martin DCJ.  The sentences imposed were 12 months imprisonment in respect of the offence of entering a dwelling with intent by breaking and in company; six months imprisonment in respect of all the other offences for which he had been sentenced in March 2008; in respect of the dangerous operation of a motor vehicle, eight months imprisonment; in respect of the unlawful use of a motor vehicle, six months imprisonment; and in respect of the summary offence of driving whilst disqualified, three months imprisonment.  All of those terms of imprisonment were ordered to be served concurrently.  A period of 64 days already spent in custody with respect to the unlawful use of a motor vehicle and dangerous operation of a motor vehicle was declared time served in respect of those sentences.  His parole release date was fixed at 10 November 2008, the date of the sentence.

[10] The applicant’s next relevant court appearance was on 25 February 2009 when he was convicted on his own plea of guilty on one count of unlawful use of a motor vehicle and one count of driving whilst disqualified.  Those offences were committed on 14 November 2008, only four days after he was sentenced by Martin DCJ.  That offending had led to the suspension of his parole on 9 January 2009.  His fulltime release date for the terms of imprisonment imposed by Martin DCJ was 4 January 2010.  Wall DCJ sentenced the applicant to 18 months imprisonment in respect of the unlawful use of a motor vehicle and six months imprisonment for the offence of driving whilst disqualified.  Those sentences were to be served concurrently but cumulatively upon the sentences imposed on 10 November 2008.  The sentences of 18 months and six months imprisonment therefore were to commence, as his Honour said, on 4 January 2010.  His Honour fixed a parole eligibility date after the applicant had served six months of the 18 month sentence, namely 4 July 2010.  He disqualified the applicant from holding or obtaining a driver’s licence absolutely. 

[11] The offences for which the applicant was sentenced by Botting DCJ on 18 May 2011 were committed on 27 November 2010 while he was on parole granted in respect of the term of imprisonment imposed by Wall DCJ on 25 February 2009.

Extension of time

[12] The relevant factors to be considered on an application for an extension of time are whether there is a good reason to account for the delay and whether it is in the interests of justice to grant the extension.[1]  In this case the explanation for the delay of some six months in filing the appeal is barely adequate although the errors in the notice itself does tend to support the applicant’s claim of ignorance of legal process and applicable sentencing principles.

[13] Even where there is not a satisfactory explanation for the delay, the court nevertheless retains a discretion to grant the application if the applicant can demonstrate that not to do so would result in a miscarriage of justice.[2]

[14] Whether or not it is in the interests of justice to grant the extension or whether it can be shown that not to do so would result in a miscarriage of justice depends on whether the applicant can demonstrate any prospects of success should the application be granted.  As the High Court observed in Jeffers v The Queen (1993) 67 ALJR 288 at 289:

“should the appellant be unable to demonstrate any prospect of success in the appeal which he seeks to prosecute he would, for that reason, not be entitled to an extension of time.”

Prospects of success

[15] Botting DCJ referred to the number of times that the applicant had appeared in court in relation to serious driving offences and other types of offending and the fact that he had been previously incarcerated.  He referred to a detailed and thorough report from Dr Ken Arthur with regard to the applicant’s problems and the need for the applicant to abstain from liquor and illicit drugs and maintain a proper regimen of medication.  He referred to the fact that the applicant had the support of his mother.  However, his Honour also referred to the pressing need to protect the public and the exacerbating factor that these offences were committed whilst he was on parole.

[16] The learned sentencing judge used four years imprisonment as submitted by the Crown Prosecutor as a starting point.  He also took into account the totality principle given that the sentences imposed must be cumulative.  His Honour said he would try to ensure that he would not impose a sentencing on the applicant which would be so crushing or so stern as to deprive him of hope, but that it was important to recognise the repetitive nature of his offending.  His Honour took into account the fact that the matter had been brought on expeditiously in accordance with the applicant’s instructions to his solicitors and he should be given credit for his plea of guilty.

[17] In respect of the offence of unlawful use of a motor vehicle his Honour sentenced the applicant to imprisonment for 18 months and in respect of the dangerous operation of a motor vehicle with circumstances of aggravation he ordered his imprisonment for three years.  Those sentences were to be concurrent with one another but cumulative upon all other sentences that he was then serving.  His Honour rejected a submission from the applicant’s counsel that he should suspend the applicant’s sentences because he thought it was more appropriate that it be left “to the authorities to decide when, in their view, it may be at least relatively safe to order your release on parole.”  Accordingly, he fixed his parole eligibility date as 31 October 2011.  In doing so his Honour recognised that it may be difficult for the applicant to obtain parole given his repeated offending whilst on parole. 

Parole eligibility rather than a suspended sentence

[18] At the time of the applicant’s sentencing on 18 May 2011, he was serving the unexpired portion of the sentences imposed on 25 February 2009.  His full-time release date under that sentence was 4 July 2011.  The sentence imposed by Botting DCJ of three years imprisonment was imposed cumulatively as it was required to be under s 156A(1)(b)(ii) and (2) of the Penalties and Sentences Act 1992 (“PSA”) because the applicant committed the offences whilst released on parole.

[19] The effect of that was that the applicant’s period of imprisonment was for more than three years.  “Period of imprisonment” is defined in s 4 of the PSA to mean:

“the unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment, whether –

(a)ordered to be served concurrently or cumulatively; or

(b)imposed at the same time or different times;

and includes a term of imprisonment.”

[20] Because the period of imprisonment was for more than three years and the applicant had a current parole eligibility date as defined in s 160 of the PSA, the sentencing judge was required to fix a parole eligibility date pursuant to s 160C(2) of the PSA.

[21] A parole eligibility date is appropriate in a case such as this of a repeat offender who is clearly in need of close supervision on his release from custody to endeavour to reduce the risk of his reoffending.[3]  The failure of the applicant to be granted parole does not suggest any error in the sentencing discretion in that regard.

Was the head sentence manifestly excessive?

[22] The circumstances of the offending suggest that three years imprisonment was a very moderate sentence.  The applicant, who was by then 20 years old, violently demanded the keys of the car owned by his mother and her partner.  His mother, who was fearful for the safety of her four year old daughter and her partner, told her partner to give him the keys.  As soon as the applicant left, his mother’s partner reported to the police that the car stolen by the applicant.  The applicant had consumed two boxes of valium and was disqualified from driving.

[23] After various attempts to dissuade the applicant from driving the vehicle, and a police direction to stop, he drove off from the police at speed on more than one occasion.  The police took an appropriately cautious approach in pursuing the applicant during his prolonged episode of dangerous driving.  Nevertheless, the applicant drove on the wrong side of the road and collided with another vehicle.  The driver of that vehicle had to be cut from the vehicle and suffered rib fractures, a fractured pelvis and significant bruising.  The passengers of that vehicle also suffered less significant injuries.

[24] Other sentences referred to in this court for similar offences in comparable circumstances do not support the submission that the head sentence is manifestly excessive.

[25] In R v Grimaldi,[4] the appellant was sentenced to three years imprisonment, suspended after 15 months, for dangerous operation of a motor vehicle causing grievous bodily harm with an aggravating circumstance—in that case, being adversely affected by an intoxicating substance.  That sentence was not the subject of an appeal.  The appellant was driving a utility at speed through a roundabout, almost collided with another vehicle and hit a telegraph pole and a parked car, injuring the passenger in the car.  The utility that appellant was driving was not stolen; he was not fleeing from police; he endeavoured to assist the injured passenger rather than leaving the scene; and was genuinely remorseful.  His appeal against conviction was dismissed.  While the applicant in the present case pleaded guilty, his conduct was considerably more culpable.

[26] The case of R v Paton[5] concerned an applicant who had been sentenced to three years imprisonment for dangerous operation of a motor vehicle after a plea of guilty.  In that case, the applicant fled in a stolen car from police at speed, disregarding give way signs and police instructions to stop.  In the course of the chase, he drove onto the wrong side of a large arterial road, causing several vehicles to take evasive action, and the police to abandon the chase.  The nature of the driving in that case was more reckless than that of the applicant; however, there was no collision, and so the offence was not aggravated as it was in the present case by causing grievous bodily harm and then fleeing from the scene.  That applicant had also been convicted of a number of other offences, including unlawful use of a motor vehicle and associated summary offences, the sentences in respect of which were subsumed by the head sentence.  He also suffered some psychological difficulties, in the form of drug dependency.  His sentence was further reduced by reference to such mitigating factors as participation in rehabilitation programs, completion of educational courses and steady employment, as well as extensive cooperation with the police, which the applicant does not have in his favour.  It was not disturbed on appeal.  White JA reasoned that:

“A head sentence of three years for the dangerous operation of the motor vehicle offence, given that the applicant had three previous convictions for that offence together with many traffic offences including driving unlicensed, suggests that a severe sentence was called for.  Because the sentence was to be served cumulatively upon the expiration of the activated suspended sentence this required … some moderation when looking at the totality of the sentences.  This her Honour did by reducing the head sentence from what would have been an unremarkable four years to three years.”[6]

[27] The offences in Paton were also committed in breach of parole, and the sentence was imposed cumulatively upon the existing sentence, which had one year still to run.  That applicant also argued that the sentence was excessive because, inter alia, “with his history of offending on parole, he is unlikely to be granted parole”.[7]  At [23] of the judgment, White JA disposed of this argument in simple terms, highlighting that:

“[t]hose are matters now for the parole authority not this Court.”

[28] It is clear that the sentencing judge in this case, Botting DCJ, also so intended.[8]

Conclusion

[29] The applicant has no prospects of success on any application for leave to appeal his sentence.  Accordingly, I would refuse his application for an extension of time.