R v CBQ[2016] QCA 125

SUPREME COURT OF QUEENSLAND

1. GOTTERSON JA:  The applicant, CBQ, pleaded guilty to 13 counts of offending against the one female child.  One count was of maintaining a sexual relationship with her over a period of about two years and four months with circumstances of aggravation.  Six counts were of indecent treatment of a child under care, two of which were when she was under 12 years of age.  There was a count of rape and five counts of unlawful carnal knowledge of a child under 16 years of age.
2. The applicant was convicted and sentenced on 23 July 2014.  He was sentenced to nine years’ imprisonment on the maintaining count and to a concurrent sentence of six years’ imprisonment on the rape count.  Shorter concurrent periods of imprisonment were imposed for the other counts.  A parole eligibility date after he had served three years was fixed.  Some 56 days of pre-sentence custody were declared to be time served.
3. On 28 August 2015, the applicant filed an application for leave to appeal against his sentence (Form 26).  The stated ground of appeal is that his sentence for the maintaining offence is manifestly excessive.  He also filed with it an application for extension of time within which to appeal (Form 28).  The extension sought is for a period of approximately 12 months.
4. It is well settled that where there is an application for an extension of time for a criminal appeal, this Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension.  The length of the delay is relevant.  Where it is feasible to do so, the Court will often find it appropriate to make some provisional assessment of the strength of an applicant’s proposed appeal.^[1]  Such an assessment will assist in determining whether the interests of justice commend an extension of time.
5. Where to refuse an extension would result in a miscarriage of justice, the extension may be granted notwithstanding that a satisfactory explanation for not appealing in time has been given.^[2]  On the other hand, a failure to demonstrate that the proposed appeal has any prospects of success may of itself justify a refusal of an extension despite a satisfactory explanation for the delay.^[3]

Delay

6. The applicant swore an affidavit in which he says that, once sentenced, he was returned to the Arthur Gorrie Correctional Centre briefly, transferred to the Brisbane Correctional Centre for about one month, and on 18 August 2014, transferred to the Wolston Correctional Centre.  He claims that the lawyers who had represented him at the sentence hearing did not “attend upon [him] to discuss appeal matters after the date of [his] sentence”.  He became aware of his “entitlement” to appeal against the severity of the sentence either at the Brisbane Correctional Centre or, later, at the Wolston Correctional Centre, from other inmates.
7. The applicant says further that his then solicitor, Mr Gordon Harris, was ill and he did not “push” the matter with him.  On one occasion, he did speak to Mr Harris by telephone and told him that he wanted to appeal, but was not advised that he was out of time.  He thought that Mr Harris was working on an appeal for him.  Nothing happened and he became concerned.
8. According to the applicant, he was referred by another inmate to Mr Michael Bosscher, solicitor, whom he contacted and with whom he arranged an appointment.  Apparently he was provided with a Form 26 and a Form 28 (not by Mr Bosscher).  He filled them out himself and signed them on 19 November 2014.  He then sent them to Mr Harris.
9. The applicant met with Mr Bosscher on 21 November 2014.  He was advised that although he was out of time to appeal, an appeal was not precluded on that account.  After the conference, he remained in two minds whether to appeal or not.  He felt obliged to Mr Harris who was a former military acquaintance of his.  Initially, he told Mr Bosscher’s firm that he did not wish to transfer the matter to them.  Over the following week, he changed his mind.  He contacted the firm in late November or during December 2014 to arrange for them to take on his appeal.  He was provided with a fee estimate.  Arrangements were made in January 2015 for funds to be transferred to the firm’s trust account.  Instructions were not finalised until April 2015.
10. Mr Bosscher has sworn an affidavit in which he generally confirms the applicant’s account of the matters dealing with his firm.  There was a delay in obtaining the file and trust account funds from Mr Harris.  According to Ms Samantha Breach, a solicitor in the employ of Mr Bosscher’s firm, the file and a trust account cheque were available for collection from Mr Harris on 20 January 2015.  A transcript of the sentence hearing was ordered on 21 April 2015.  The transcript became available on 18 May 2015.
11. The respondent has filed affidavits sworn by Mr Harris and the applicant’s counsel at the sentence hearing, Mr Michael Woodford.  Mr Harris says that he received instructions from the applicant on 28 January 2014.  Significantly, he says that on the morning of 28 May 2014, he attended a conference at Mr Woodford’s chambers where Mr Woodford advised the applicant of the likely sentencing range he could expect on pleas of guilty.  Mr Woodford explained “the triggers needed for an appeal and the procedure to commence the appeal”.
12. Mr Woodford confirms that the conference occurred.  He adds:

“After I advised Mr CBQ of the sentencing range for the matter, I again advised him that he was able to take his sentence to the Court of Appeal in the event that he wanted to challenge the sentence that would ultimately be imposed and that he should consider his options after the sentence hearing against the backdrop of the comparable cases that I had taken him through and my advice as to the range.”

13. The conference preceded the applicant’s arraignment that morning.  Mr Woodford represented him at the arraignment where he pleaded guilty to the offences charged and the allocutus was administered.  Mr Woodford subsequently represented the applicant at the sentence hearing on 23 July 2014.
14. In paragraph 10 of his affidavit, Mr Harris states:

“On 14 August 2014, I attended upon Mr CBQ at the Arthur Gorrie Correctional Centre, Wacol for a conference.  Mr CBQ gave no instructions for an appeal.”

15. Mr Harris also says that he did receive the Form 26 and the Form 28 from the applicant on 25 November 2014.  He wrote to the applicant stating that he would write to him within 14 days with respect to costs and prospects on an appeal.  However, on 2 December 2014, the applicant left a recorded message that he had instructed Mr Bosscher’s firm.  On 22 December 2014, Mr Harris received an appropriate release authority dated 21 November 2014.
16. At the hearing of the application, counsel for the applicant informed the Court that his client did not wish to challenge Mr Harris’s evidence.  The applicant accepted that as at 14 August 2014 “he had been informed of his rights of appeal”.  Counsel advised that the Court could proceed on the basis that, at some time before 19 November 2014 when he filled out the forms, the applicant changed his mind about appealing.^[4]
17. The date, 14 August 2014, was within the one calendar month period in which the applicant might have made a timely application for leave to appeal.^[5]  No extension of time would have been required for an application for leave filed on that date or, indeed, by 23 August 2014.  Once it is accepted that the applicant knew of his right of appeal by 14 August 2014, it remains for him, on an application for extension of time, to explain his failure to apply for leave for the whole of the period between 14 August 2014 and the date of filing, 28 August 2015.
18. The applicant has offered no explanation for his delay between 14 August 2014 and 19 November 2014 when he filled out and signed the forms which he forwarded to Mr Harris.  His acceptance of Mr Harris’s evidence that the applicant did not instruct him to prepare an appeal when they met on 14 August betrays the applicant’s statement in his affidavit that he thought that Mr Harris was working on an appeal after that date.
19. There is some explanation of delay during the period in which Mr Bosscher’s firm was retained.  However, delay during some parts of it are less than satisfactorily explained.  I refer particularly to the delay in finalising instructions until mid April 2015 when the transcript was ordered, and delay between receipt of the transcript in mid May 2015 and the filing of the Form 26 and Form 28 in late August 2015.
20. In summary, the applicant has failed to provide a satisfactory explanation for delay for the whole of the period for which an extension of time is sought.  There are explanations, not always satisfactory, for parts only of it.

Assessment of strength of proposed appeal

21. The applicant is now 66 years of age.  The maintaining offending charged was for the period between 7 November 1990 and 16 March 1993.  The other offending charged was on a date, or between dates, within that period.  The complainant had just turned 11 years of age at the beginning of the period and was about 13 and a half years of age at the end of it.  The applicant was in a de facto relationship with the complainant’s mother.  That relationship had been on foot for about three years when the offending began.
22. The first instance of abuse happened when the complainant’s mother was away for a wedding and the complainant was left in the applicant’s care.  He walked around the house naked and showed the complainant pornographic movies on the first night that the mother was away.  The next night, he went into her bedroom when she was asleep.  He wiped her vagina and breasts with a wash cloth and sucked on her breasts until she cried.  He got her a drink and told her she had had a bad dream.  The following night he again went into her room and stroked her vagina with his erect penis until she cried and he left.
23. The offending continued in a similar way about weekly for the next 12 months.  Sexual intercourse first occurred when the complainant was 12 years old.  That event was the subject of the rape charge.  From then on, sexual intercourse became an almost daily routine.  It would occur once the complainant’s mother had left early for work and the complainant’s sister was in the shower.
24. The intercourse continued with that frequency for about eight months until November 1992.  During that time, the applicant told the complainant not to tell her mother and that her mother would kill herself if she found out.  The mother was emotionally vulnerable at the time.  The applicant also bribed the complainant to do sexual acts by giving her money or giving her permission to do things such as going to the school dance.
25. The applicant “booby trapped” the house to alert him if the mother returned home unexpectedly.  That caused the mother to become suspicious and the applicant moved out.  Notwithstanding, he continued to seek out the complainant for sex before and after school.  The offending finished when the mother found a love letter he had written to the complainant.  The mother then ceased all contact between the applicant and the complainant.
26. Counsel for the applicant submits that the sentence imposed failed to reflect the following factors:
    1. application of the principle that a mental disorder suffered by an offender lessens his moral culpability and thereby reduces the need for general or personal deterrence in exercising the sentencing discretion; and
    2. the applicant has demonstrated substantial progress towards rehabilitation between the times of the offending and the sentence.^[6]

It was further submitted that when those matters are taken into account, the sentence on the maintaining count should have been eight years’ imprisonment.

27. Factor (a): The applicant had served in the Australian Army between 1971 and 1978.  A report by Dr Tracey Zielinski, clinical neuropsychologist and clinical psychologist, dated 8 July 2014, was tendered at sentence.  It records that in February 2012, a Veterans Review Board was satisfied that the applicant’s military service had led to his suffering post-traumatic stress disorder (PTSD) and a depressive disorder secondary to chronic back pain and alcohol dependence.  The alcohol dependence was in remission during the applicant’s relationship with the complainant’s mother.
28. Dr Zielinski assessed the applicant’s risk of recidivism in the following terms:

“It is noted that Mr CBQ has no record of criminal behaviour outside the current charges.  Whilst it is possible that Mr CBQ has offended against other minors, given his low level of emotional intelligence and his admitted inability to understand that a minor does not have the emotional or cognitive maturity of an adult, the compiled evidence is suggestive that Mr CBQ is being truthful when he states that he has not offended in this way with any other person.  It is my opinion that Mr CBQ’s risk of recidivism is low.”^[7]

The apparent purpose in tendering the report was to place before the learned sentencing judge evidence that the applicant would not adapt well to a prison environment and that it was likely that his PTSD and depression would be exacerbated in prison.^[8]

29. The applicant accepts that the learned sentencing judge acknowledged his PTSD and depression^[9] and was prepared to act on Dr Zielinski’s assessment of risk of re-offending.^[10]  As well, her Honour acknowledged that the degree of disability, and the increased risk to it that imprisonment might play, were relevant considerations.  She considered that, on the evidence, the applicant’s conditions could be managed in prison although not as well as they might be managed were he not “suffering the trauma associated with incarceration”.^[11]
30. The applicant’s complaint is that her Honour did not go on to consider the extent to which these conditions may have reduced his moral culpability for the offending, thus moderating the need for deterrence.
31. It may be accepted that, as a matter of principle, impaired mental functioning may reduce the moral culpability of offending conduct.  Where that is so, the condition affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective.^[12]
32. However, as decisions of this Court illustrate, evidence need show that the impaired mental functioning was relevant to the applicant’s offending.  For example, in R v Goodger,^[13] the principle was accepted as uncontroversial.  However, Keane JA found a problem in applying it in that case because the medical report relied upon by the offender failed to show any “real connection” between the offending and the offender’s depression.^[14]  More recently, and more directly relevant to the present circumstances, the following observation was made in R v Rix:^[15]

“Secondly, and importantly, in instances in Queensland and comparable jurisdictions where an offender’s PTSD, suffered as a result of active military service, has been recognised on sentencing, what has attracted recognition has not been the mere fact of the condition or its origin, but rather the relevance to the offender’s culpability for the offending, the need for deterrence and the prospects of rehabilitation, that the condition itself or its symptoms or sequelae may have.”

33. A similar problem to that in Goodger arises here.  Dr Zielinski’s report does not link the applicant’s PTSD or depression to any aspect of his offending against the complainant.  The absence of such evidence would preclude a finding that his moral culpability for it was reduced on account of those conditions.  The applicant, therefore, cannot establish a failure to observe principle on the part of the learned sentencing judge in this respect.  I would add that, in this state of the evidence, it was appropriate for the applicant’s counsel at sentence not to have made a submission based on lessened moral culpability.  The importance of general deterrence was rightly recognised by counsel as an important feature in sentencing the applicant.^[16]
34. Factor (b): The applicant submits that the fact that he has not re-offended in the 21 years that have elapsed between his offending and sentence was not taken into account.  The submission is made notwithstanding Dr Zielinski’s revelation of admissions made by the applicant to her which are reflected in the opinion on risk of recidivism to which I have referred and also statements made by the applicant in a pretext telephone call with the complainant made on 2 February 2013.
35. The learned sentencing judge remarked:

“ … Although there is no evidence of inappropriate sexual activity with any other child, you did develop a relationship with an 11 year old girl that you maintained for a lengthy period.  And this was after your own daughter alleged she had been abused at a similar period.  Something that was put forward as an element of trauma for your background.  And I, like Dr Zielinski, am perplexed by the different view you seem to take of what happened to your own daughter compared to what you did with the complainant, your step-daughter.  You were in the same position to the complainant as your daughter’s step-father was to her and offending during similar age period.

In my mind, your confused thinking about the moral issues involved in your relationship with the complainant presents an ongoing risk, and I hope you will reflect on that.  If you have the opportunity whilst you’re in custody to explore this through the sexual offender treatment program or any one on one counselling I urge you to be open to exploring that conflict.  I’m going to direct that a copy of Dr Zielinski’s report is made available to the Director General of Corrective Services with my request that it be provided to anybody who is engaged in your counselling or rehabilitation programs.

In any case, I consider your views, your confused views, undermine submissions that I can look at your lengthy period of non-offending as evidence of substantial rehabilitation.  In my mind, rehabilitation commences with a full acceptance of responsibility and moral culpability regardless of what anybody else in the incident may have done.  The things that you said to the complainant in her pretext call with you show that even in January last year you had an unbelievably distorted picture of what had transpired between the two of you.  Your apologies to her were laced with self-justifications that placed some responsibility at her feet.  You did that.  And in my view that will only have increased her trauma about what had happened that even now you were attributing some responsibility to her.

And, as I said, there’s nothing in Dr Zielinski’s careful report that gives me any greater confidence that your view of that relationship has changed.  So if there is some indication of your rehabilitation it’s at its very early stages.”^[17]

36. In particular, the applicant takes issue with the remark that rehabilitation commences with a full acceptance of responsibility and moral culpability.  That, it is submitted, is inconsistent with the preference expressed by Chesterman J in R v D’Arcy^[18] for the approach taken by the Court of Criminal Appeal of Western Australia in Duncan v The Queen.^[19]  Adopting that approach, his Honour observed:

“…A court is likely to have more confidence that an offender has reformed where there is a demonstration of remorse arising from a realisation of personal wrongdoing and a sense of guilt, but I do not think it right that rehabilitation may only be proved in that manner.  Other factors such as those described by Ipp J, particularly positive contributions made by the offender to the general welfare of the community, are indicative of rehabilitation.  Remorse, when present, is conventionally regarded as a reason to mitigate a sentence, but that is so whenever the offender is sentenced. Its absence does not mean that one should disregard evidence of a substantial period of law-abiding and socially useful living.”^[20]

37. I would accept that had it been the intention of the learned sentencing judge to propound that, as a matter of principle, rehabilitation cannot commence until a full acceptance of responsibility and moral culpability is demonstrated, then such a principle would be inconsistent with the approach preferred by Chesterman J.  It would also be inconsistent with the acknowledgement by this Court in R v L; ex parte Attorney-General^[21] that delay in sentencing may have relevance where rehabilitation, or good progress towards rehabilitation, is shown.
38. I doubt that her Honour here was intending to propound such a principle.  Be that as it may, she did not act upon such a principle.  The totality of her remarks indicate that she acted upon a finding that the evidence indicated that the applicant was, at best, at the early stages of rehabilitation.  To my mind, that finding is unexceptionable.  Certainly, his rehabilitation was well short of good progress towards it.  It was not of the degree which this Court, in L, regarded as having a meaningful impact in sentencing.
39. The appellant’s argument with respect to this factor also is not made out.

Disposition

40. The appellant has not demonstrated a viable case of error with respect to either of the two factors which his submissions address.  Aside from that, the sentence that was imposed for the maintaining count is consonant with that imposed in the comparable cases of R v KAI,^[22] R v D,^[23] R v KJB^[24] and R v SAU.^[25]  It is unnecessary to detail the circumstances of each of those cases.
41. In summary, an application for leave to appeal against sentence here would have negligible prospects of success.  The interests of justice do not commend an extension of time to make it.  Given that, and the shortcomings in explaining delay, this application for an extension of time must be refused.

Order

42. I would propose the following order:
    1. Application for extension of time refused.
43. PHILIP McMURDO JA:  I agree with Gotterson JA.
44. BODDICE J:  I have read the reasons for judgment of Gotterson JA.  I agree with those reasons and with the proposed order.