R v Lemmo[2015] QCA 105

COURT OF APPEAL

HOLMES JA

ANN LYONS J

BURNS J

CA No 259 of 2014

DC No 541 of 2011

DC No 312 of 2012

DC No 313 of 2012

DC No 147 of 2013

THE QUEEN

v

LEMMO, Jason VincentApplicant

BRISBANE

THURSDAY, 18 JUNE 2015

JUDGMENT

ANN LYONS J:  By application filed on the 2nd of October 2014, the applicant seeks an extension of time within which to appeal against his sentence and convictions.

On 25 November 2011, a 19 count indictment was presented in the District Court at Beenleigh, (number 541 of 2011) in relation to offences of armed robbery, armed robbery with violence, armed robbery with wounding and attempted armed robbery, all alleged to have been committed between 20 May and 16 July 2009.

On 30 August 2011, an ex-officio indictment (number 312 of 2012) was then presented in the District Court at Townsville charging the applicant with seven counts of armed robbery alleged to have been committed between 10 June and 2 August 2011.  On 28 September 2012, the applicant pleaded guilty in the District Court at Townsville to all counts on that indictment and to three summary offences that were also committed during the period covered by the ex-officio indictment.

The ex-officio indictment and related summary offences were then transferred to the District Court at Beenleigh so that the sentence could proceed in relation to the summary offences and indictments 541 of 2011 and 312 of 2012.

On 21 November 2012, the applicant pleaded guilty in the District Court at Beenleigh in relation to 12 counts on the 19 count indictment 541 of 2011, namely, seven counts of armed robbery, three counts of armed robbery with personal violence, one count of armed robbery with wounding and one count of attempted armed robbery.  The Crown then entered a nolle prosequi in relation to the other seven counts on indictment 541 of 2011.

On 27 May 2013, the applicant was sentenced.  In respect of every count on both indictments he was sentenced to 12 years imprisonment, other than on count 15 on indictment 541 of 2011, which was attempted armed robbery, in respect of which he was sentenced to 10 years imprisonment.  In respect of all counts on both indictments, a declaration was made that he was convicted of a serious violence offence.  Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), it was further declared that 657 days spent in pre-sentence custody between 9 August 2011 and 26 May 2013 was deemed time already served under the sentences.

The applicant has previously applied to this Court for an extension of time within which to appeal against conviction and for leave to appeal against sentence.  These applications were heard on the 14 February 2014.  On 25 February 2014, the Court, consisting of Muir and Gotterson JJA and Mullins J, delivered judgment and ordered that both the application for an extension of time to appeal against the conviction and the application for leave to appeal against sentence were refused: R v Lemmo [2014] QCA 25.

Mullins J, with whom Muir and Gotterson JJA agreed, identified the circumstance of the offending in paragraphs [10] to [31] of the judgment.  The primary basis upon which the applicant sought leave to appeal against a number of his convictions was his assertions about his capacity when he pleaded guilty and the coercion of his lawyers.  Mullins J identified that there was no sworn evidence or other documentary support for these assertions, and accordingly the applicant’s application to extend the time to appeal against his convictions had to fail in the absence of such evidence.  The application for leave to appeal against sentence was refused on the basis that the sentence of 12 years imprisonment with accompanying serious violent offence declarations for each of the armed robberies was not manifestly excessive.

It is evident from the applicant’s written submissions in support of the present application that he seeks to raise the same issues that were agitated before this Court on 14 February 2014.  Here today in oral submissions the applicant reiterated again, without sworn evidence, that he was tricked by his legal representatives into pleading guilty to charges of which he was not guilty.

The only additional issue raised by the applicant is that he was not legally represented at the time of his last appeal hearing and now wishes to retain representation.  This is identified as a ground in support of the present application.  The applicant states:

“I have been trying my hardest to get legal representation.  The process of waiting to get mail returned waiting for information took a long time.  It is hard to get things done, whilst in prison.  And I was not sure if I could apply for another appeal.”

The respondent submits that, as the present application only advances grounds already considered upon their merits and disposed of by this Court, there is no jurisdiction to now consider any further application.  The respondent argues that the applicant has already had the merits of both his conviction appeal and appeal against sentence fully assessed by this Court.  Mullins J held that it was not in the interests of justice to grant an extension of time for the applicant to appeal against his conviction.  Accordingly, the respondent submits that it is impossible to see how legal representation at this late stage could have any impact on those fully considered issues.

The issue of whether there is any jurisdiction for this Court to entertain a further application for leave to appeal against sentence where leave to appeal against sentence was not previously granted was considered in R v Upson (No 2) (2013) 229 A Crim R 275; [2013] QCA 149.  In that case Fraser JA, with whom Holmes JA and Daubney J agreed, identified the general rule from Grierson v The King (1938) 60 CLR 431 that once the right of appeal against conviction has been exercised and the appeal has been determined on the merits, the Court has no jurisdiction to entertain a further appeal.  Thus the general rule in Grierson applies to cases where an application for leave to appeal against sentence has earlier been granted and the appeal has been determined on its merits.  The question that Fraser JA considered was whether the general rule in Grierson applies to an application for leave to appeal against sentence when an earlier application for leave was refused upon the merits of the proposed appeal.

Fraser JA accepted that the general rule in Grierson applies with very limited exceptions.  He stated:

“It is to be emphasised that, consistently with the importance of the principle of finality in litigation, any exception to the general rule in Grierson must fall within very narrow bounds.  In the case of an application for leave to appeal against sentence where a previous application was refused on the merits of the proposed appeal, the mere repetition or refinement of the original grounds of appeal, the formulation of different grounds or reliance upon new evidence does not take the case outside the general rule that the Court lacks jurisdiction to hear the second application.  That is what the applicant sought to do in this case.  Accordingly, the Court lacked jurisdiction to hear the applicant’s proposed application for leave to appeal against sentence.  That being so, the application for an extension of time to bring the application for leave to appeal against sentence should be refused on the ground that it is futile.”

Fraser JA noted that the High Court in Burrell v The Queen (2008) 238 CLR 218 at [26] left open the question whether some form of a denial of procedural fairness might amount to a further exception.  The mere fact that the applicant here was not legally represented at the first appeal does not constitute a basis for asserting a denial of procedural fairness.  On the basis of the decision in Upson, there is no jurisdiction to hear a further application for leave to appeal against sentence.

The position is not similarly clear in respect of an application to extend time for an appeal against conviction where a previous application to extend time has failed.  In R v A [2003] QCA 445, the Court was of the view whilst finding it unnecessary to decide that there might remain power to hear a further such application.  Davies JA observed that if it were based on the same grounds, it would be bound to fail.  In this case, the Court has already considered in the context of the earlier application for extension of time the merits of a proposed appeal on the same grounds as those now raised.  This application must fail, for the reasons then given.  This is particularly so in circumstances where the applicant entered pleas of guilty to each count, made admissions to his treating psychologist and apologised to his victims.  Each of these matters was referred to by Mullins J in R v Lemmo [2014] QCA 25 at [32] and [39].  I would therefore dismiss the application for an extension of time within which to appeal against conviction and sentence.

HOLMES JA:  I agree.

BURNS J:  I agree.

HOLMES JA:  The application for an extension of time within which to appeal against conviction and sentence is refused.