Pajares v Commissioner of Police
[2025] QCA 9
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Pajares v Commissioner of Police[2025] QCA 9
- Add to List
Pajares v Commissioner of Police[2025] QCA 9
Pajares v Commissioner of Police[2025] QCA 9
SUPREME COURT OF QUEENSLAND
CITATION: | Pajares v Commissioner of Police [2025] QCA 9 |
PARTIES: | PAJARES, Juan Luis (applicant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | CA No 154 of 2024 DC No 50 of 2022 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Extension of Time s 118 DCA (Criminal) |
ORIGINATING COURT: | District Court at Townsville – Date of Judgment: 22 July 2022 (Coker DCJ) |
DELIVERED EX TEMPORE ON: | 13 February 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 13 February 2025 |
JUDGES: | Bond JA and Gotterson AJA and Henry J |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant had convictions recorded against him for three minor drug offences and driving while methylamphetamine was present in his saliva – where the applicant appealed to the District Court pursuant to s 222 of the Justices Act 1886 (Qld) on the grounds that the recording of a conviction with respect to the criminal offences was manifestly excessive – where the District Court judge dismissed the appeal – where the applicant seeks an extension of time within which to apply for leave to appeal against sentence under s 118(3) of the District Court of Queensland Act 1967 (Qld) – where the applicant submits that the recording of convictions has caused them significant issues with their means of making a living by them not being able to hold company directorships District Court of Queensland Act 1967 (Qld), s 118 Justices Act 1886 (Qld), s 222 R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited R v Verrall [2015] QCA 72, cited Storry v Commissioner of Police [2024] QCA 209, followed |
COUNSEL: | M L Longhurst for the applicant S J Gallagher for respondent |
SOLICITORS: | Osborne Butler Lawyers for applicant Director of Public Prosecutions (Queensland) for the respondent |
BOND JA: The Court will receive the affidavit of Christopher Rodney Naughton filed 28 January 2025 on the application for extension of time. The Court’s reasons and orders in relation to the application itself will be delivered by Justice Henry.
HENRY J: The applicant had convictions recorded against him when sentenced in Townsville’s Magistrates Court on 30 March 2022 for three minor drug offences and driving while methylamphetamine was present in his saliva.
His argument against recording a conviction was that the recording of a conviction would likely result in him having to reduce his degree of corporate control over and interest in a business which required a gaming and liquor licence, thus occasioning financial loss. The risk of such adverse impact on his economic wellbeing was relevant to whether a conviction should be recorded per section 12 Penalties and Sentences Act 1992 (Qld). But he already had a criminal history and this was not the first time he had relied on such a risk to avoid the recording of a conviction. He had successfully done so less than a year earlier, when fined for five drug related offences. That he continued to offend, despite that favourable outcome, reflected adversely upon his character, another relevant consideration under section 12. In such circumstances, the decision to record a conviction was within the sound exercise of the learned presiding Magistrate’s sentencing discretion.
It is thus unsurprising that the applicant failed in his ensuing appeal to a District Court Judge on the ground that the recording of a conviction was manifestly excessive. Yet, in an application filed about two years after the hearing and dismissal of that appeal, the applicant now applies to this court for an extension of time within which to file a notice of application for leave to appeal.
Such an application requires consideration of whether there is good reason for the delay and whether it would be in the interests of justice to grant the extension - see Storry v Commissioner of Police [2024] QCA 209, [16]. Both considerations tell determinatively against an extension here.
The reason proffered for the delay appears to be that the risk of adverse economic impact identified at the time of sentence has manifested progressively in the years since. That may explain the motive for pursuing the application, but it does not explain the delay in pursuing it. Nor does such sparse evidence as has been filed in support of the application. That evidence at best shows it was apparent to the applicant soon after the sentence in 2022 that the risk identified at the time of sentence had begun to manifest.
This heralds the applicant’s failure to demonstrate how his case comes within an exception to the principle of finality in litigation. The assessment of error in an appeal against sentence is based on the facts which existed at the time of sentence - see R v Maniadis [1997] 1 Qd R 593 to 597; R v Verrall [2015] QCA 72, [9]. Subsequent factual events might become relevant on appeal, such as where evidence emerges of facts which existed but were not known or comprehended at the time of sentence, or where an appeal court finds error and in re-sentencing may have regard to material variations in the defendant’s personal circumstances since the imposition of sentence below. Such circumstances do not arise here.
All that has occurred here is the manifestation of the likely consequence of recording a conviction, a prospect which was already known, identified and considered at the time of sentence. A District Court Judge has already reasoned there was no error in the decision at first instance to record a conviction, notwithstanding that likely consequence. The applicant has demonstrated no error in that reasoning. It follows that even if the extension of time were granted, the applicant would have no prospect of being granted leave to appeal. It is not in the interests of justice to grant the extension.
The Court’s order is the application for extension of time is refused.
BOND JA: Adjourn the court.