R v Versac[2015] QCA 213

COURT OF APPEAL

HOLMES CJ

GOTTERSON JA

APPLEGARTH J

CA No 310 of 2014

SC No 315 of 2010

THE QUEEN

v

VERSAC, AlexApplicant

BRISBANE

MONDAY, 2 NOVEMBER 2015

JUDGMENT

HOLMES CJ:  In 2010, the applicant was convicted after a trial of a number of offences, the most serious of which was trafficking in heroin.  He was sentenced on 17 March 2011 to 10 years and six months’ imprisonment.  He filed an application for an extension of time within which to seek leave to appeal against sentence on 22 November 2013 which, after a good deal of delay and being brought on for hearing, was refused on 5 August 2014: see R v Versac [2014] QCA 181.

On 27 November 2014 he filed the further application for an extension of time within which to seek leave to appeal against sentence with which we are presently concerned.

This Court in the past has had occasion to consider whether jurisdiction exists to hear a second application for an extension of time – see, for example, R v Lemmo [2015] QCA 105 – without resolving the issue.  I find it unnecessary to explore that question here because I have reached the view for other reasons that the application should be dismissed.

The applicant here today complained that on the hearing of his previous application for an extension of time he was not in proper circumstances to make his arguments because he was in maximum security and was wearing restraints.  That resulted in his being flustered, and he repeated a single point which ended in the Court ending the hearing because he was repeating himself.  He claims that that amounted to a denial of procedural fairness, although it is rather hard to see why a court should listen to one repeated point indefinitely.

In any event, it is evident that there were extensive written submissions filed on that occasion which are dealt with at length in the judgment of the Court.  More to the point is whether today there is anything new and of substance presented to this Court which would justify an extension of time, given the Court’s previously having dealt with the matter.

Neither in this application nor in the preceding one has the applicant given any proper explanation of delay.  On the previous occasion, he asserted that he had been focused on an appeal against conviction and other trials which he faced, that he was under some stress from having been imprisoned and that he was not given legal aid.

He now says that the counsel who was appearing for him on a special leave application decided against any application for leave to appeal against sentence because of a certainty that he would win the conviction appeal.  He claims that other counsel from Legal Aid told him he would be silly to appeal while other matter were pending.  There is no evidence filed to support those contentions and I find them entirely implausible.  The Court on the previous occasion did not accept the applicant’s explanations as good reason for delay and I would take a similar view of what is offered here.

As to the merits of the proposed application, the applicant in written submissions says, firstly, that there was some error in the sentencing judge’s having identified a starting point for sentence at 13 to 14 years but not a finishing point.  He expands here to say that a sentencing judge could not sentence at what was identified as a starting point.

Secondly, he says that the sentencing judge did not take into account a period of two and a-half months in pre-sentence custody during which the applicant was on remand for a charge of dangerous operation of a motor vehicle between December 2008 and February 2009, that prosecution having ended in a nolle prosequi.

Thirdly, he says that the requirement in s 161A of the Penalties and Sentences Act was not adhered to because his effective parole eligibility is after 83 per cent rather than 80 per cent of the head sentence.

A further three points which were made in this written submissions do not seem to be adhered to today but, for completeness, I will refer to them.  They are that he wished to adduce fresh evidence in relation to a document from a rehabilitation organisation not available at sentence; that he was wrongly sentenced at a level appropriate to a principal in trafficking; and that the sentencing judge failed to take into account, in accordance with the principle in AB v The Queen (1999) 198 CLR 111, the fact that his own admissions in a record of interview led to his being convicted of trafficking.  It is not surprising that he has not sought to rely on those three points because each was dealt with on the previous application.

An examination of the judgment in that application shows the Court regarded as hollow the complaint that the application was inappropriately sentenced at the level of a principal, having regard to the nature and extent of his offending, his lack of remorse and his criminal history, and this Court would hardly revisit that conclusion.  The Court also noted that, while the sentencing judge accepted that the applicant’s admissions were influential in his conviction, they were not full and frank and the applicant denied them at trial, so that any assistance in the administration of justice was lost and any suggestion of remorse was obviated.

The rehabilitation notice which the applicant wanted to produce was dealt with in the previous judgment.  The argument in relation to that was previously rejected.  It seems to have been uncompelling: that the events moved faster than the applicant expected so that the material, although plainly in any technical sense it was capable of being obtained for sentence, was not actually obtained when needed.

The reasons of the Court in the earlier judgment explain more than adequately why each of those three arguments were rejected.

As to the points which are still relied on here today, there is no requirement that a person convicted of a serious violent offence receive parole eligibility after serving 80 per cent rather than a longer period: see the Corrective Services Act 2006, s 182(3).  It has already been determined by this Court on the prior occasion that there was no merit in any ground suggesting that the sentence itself was manifestly excessive.

As to the second of the points, there was no reason for the sentencing judge to articulate some outer limit on the possible range and it is simply a misapprehension on the part of the applicant to assume that the starting point as identified must be the lowest point for every sentence.  His contention here that the effective sentence was 13 years as a result was made on the previous occasion and was rejected.

The applicant did not adduce any evidence as to the circumstances of the claimed period sent in pre-sentence custody for dangerous operation of a motor vehicle but told us orally that it concerned the period between December 2008 and February 2009 which appears to have pre-dated any period of custody for the relevant offences here.  More importantly, he accepts that the sentencing judge could not have taken it into account because the nolle prosequi was only filed later, on 14 December 2014.  It is evident, then, that there could be no error on the part of the sentencing judge in not having regard to that matter.

The proposed application for leave to appeal against sentence is entirely without merit and the delay is not satisfactorily explained.  I would refuse the application for an extension of time.

GOTTERSON JA:  I agree.

APPLEGARTH J:  I agree.

HOLMES CJ:  The application for an extension of time is refused.  Thank you.  We can end that connection.