R v Doyle [2011] QCA 14

SUPREME COURT OF QUEENSLAND

CITATION: R v Doyle [2011] QCA 14

PARTIES: R v DOYLE, Michael John (applicant)

FILE NO/S: CA No 278 of 2010 / DC No 206 of 2007

DIVISION: Court of Appeal

PROCEEDING: Application for Extension (Sentence)

ORIGINATING COURT: District Court at Maroochydore

DELIVERED ON: 11 February 2011

DELIVERED AT: Brisbane

HEARING DATE: 7 February 2011

JUDGES: Chief Justice, Chesterman and White JJA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Application is refused.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant was late in filing a sentence application – where applicant suffered mental health issues including agoraphobia, anxiety, depression and panic attacks – where the applicant had breached a suspended sentence imposed by the District Court for various offences including entering premises, stealing, burglary and wilful damage – whether the sentence was manifestly excessive – whether the applicant’s mental health challenges should have been referred to by the District Court – whether mental health issues should operate to reduce the sentence / Channon v R (1978) 20 ALR 1; [1978] FCA 16, considered / R v Donald [2000] QCA 399, considered / R v Tait [1999] 2 Qd R 667; [1998] QCA 304, considered / R v Vaughan [2005] QCA 348, considered

COUNSEL: The applicant appeared on his own behalf / B J Power for the respondent

SOLICITORS: The applicant appeared on his own behalf / Director of Public Prosecutions (Qld) for the respondent

1. CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of White JA. I agree that the application should be refused, for those reasons.

2. CHESTERMAN JA: I agree that the application to extend time within which to appeal against sentence should be refused for the reasons given by White JA.

3. WHITE JA: Michael John Doyle has applied for an extension of time within which to appeal against the sentence imposed on him in the District Court at Maroochydore on 17 April 2008. His application is dated 16 November 2010. He was required to file his sentence appeal within one calendar month of sentence being passed upon him. He is thus two years and six months out of time.

4. The applicant was sentenced to a head sentence of two years for various entering premises, stealing and burglary offences and one year for offences of wilful damage and stealing between 2006 and 2007, all to be served concurrently. The applicant had breached a suspended sentence imposed on 20 September 2005 of which 16 months remained to be served. Her Honour ordered that that sentence be activated and the applicant serve the whole of the 16 months cumulatively on the other sentences.

5. To reflect that the applicant had served 192 days - nearly six and a half months - in undeclarable custody, her Honour set a parole eligibility date of 20 December 2008. This was eight months from the date of sentence and, with the six and a half months undeclared time, was approximately at the one-third mark of the combined sentences.

6. Her Honour observed that there was no reason why the applicant should not be granted parole which occurred, the applicant informed the court, on 22 December 2008.¹ The applicant was returned to custody because of further offending on 13 March 2010 which included wilful damage to property and giving police a false name. He was sentenced to short concurrent terms of imprisonment and a cumulative seven days. It was not until 16 November, some eight months later, that he filed his application to extend time.

7. The applicant explains his lengthy delay as being attributable to mental health issues. In his affidavit in support of his application he deposes that he suffers from a range of disorders caused by sexual abuse as a child. Those disorders include agoraphobia, anxiety, depression and panic attacks. He adds that as he was abused by a uniformed officer he found challenging authority to be almost impossible. The applicant deposes that following sentence he was heavily medicated for several weeks which assisted with the agoraphobia but the effects of anxiety and panic remained throughout the sentence and when he was released on parole. He deposes that he was in no frame of mind to consider the terms of his sentence and essentially incapable of initiating an appeal. When he was returned to custody in March he was given treatment by the mental health services at the prison and a gradual improvement in his mood and capacity has taken place over the six months between then and when he lodged his application to extend time. Before the court the applicant, who appeared for himself, said that he had received valuable assistance in prison in identifying and meeting his problems. He saw his regular counselling sessions as of great value and proposes to follow up contact with “Open Minds” and the Alcohol and Drug Service in respect to which he tendered two letters without objection from the respondent.

8. In his written outline the applicant contends that his mental health deficits ought to have been mentioned on sentence but were not. What the applicant seeks is that the 2005 suspended sentence which he breached when he committed the offences for which he was sentenced ought to have been ordered to be served concurrently.

9. The approach to an extension of time application is as expressed in R v Tait² namely, that the court will examine whether there is good reason shown to account for the delay and whether, overall, it is in the interests of justice to grant the extension. To give effect to this factor the court will make some assessment of an applicant’s prospects should an extension be granted, to the extent that the material makes this feasible.

10. There are two issues to consider on the applicant’s prospects – whether of itself the sentence is manifestly excessive and whether the applicant’s mental health challenges should have been referred to and, if so, whether they should operate to reduce the sentence.

11. The applicant was represented by counsel on his sentence and a schedule of facts representing the several indictments had been provided to the court in advance of the sentence hearing. The applicant was aged 34 years at sentence. He had an extensive criminal history for similar offending including serving time in prison. His counsel told the court that he had a troubled youth, had turned to liquor and to cannabis to deal with his problems without being specific about those problems. The subject offences were committed to obtain money to buy cannabis or committed when under the influence of either drug. Counsel submitted:³

“The time in custody, my client instructs, in hindsight has been a good thing. Your Honour may have heard this before, but if I can flesh this out: instructs that he’s had some revelations whilst being in gaol. He instructs he’s recognised that he’s had enough of his lifestyle; he recognises the anxiety he has caused his victims.”

Counsel also referred to some rehabilitation prospects:⁴

“He recognises the role in drugs – the role of drugs in his offending and his lifestyle. He indicates that in recent times he has had access to drugs, but has rejected them. He instructs that he is quite proud of that and recognises that as a significant step in his rehabilitation. He is ultimately going to be released. He instructs that his parents, who live on the Brisbane – north side of Brisbane, are still supportive of him and will have him back so long as he behaves himself.”

12. The prosecutor below contended for a sentence of three years with the suspended sentence to be served cumulatively and with a parole eligibility date on 9 March 2009 – one-third of the total sentence. The applicant’s counsel contended for a head sentence of two years and for the suspended sentence to be served concurrently with a fixed parole date at the one-third mark. Her Honour accepted the defendant’s counsel’s submission as to penalty but not that the suspended sentence should be served concurrently. This was to recognise that the applicant had continued to offend in much the same manner as he had previously and that he should only be released on parole when the authorities regarded him as ready for release. Her Honour noted that prison had not been a good experience for the applicant; the amounts of money involved and the damage to property were not great but there were five counts of burglary and stealing; that the applicant had written letters of apology to two of the victims.

13. The decisions of R v Donald⁵ and R v Vaughan⁶ suggest that a sentence of three years for similar offending by a mature recidivist offender, and with a drug problem in the case of Donald, was at the median range. There could not be said to be anything excessive about the two years head sentence imposed by her Honour.

14. Although the suspended sentence related to similar offences it was quite separate being some years earlier and the applicant had clearly not been encouraged or deterred by the risk of being required to serve the whole of that sentence to refrain from offending. By making the sentence cumulative her Honour did not impose a sentence which was, in total, excessive.

15. Without being specific about mental health issues her Honour was at least made aware that the applicant suffered from alcohol and drug dependency problems caused by his troubled youth. The applicant contended before the court that his mental health problems had very likely led to his criminal conduct. In Channon v**R⁷ BrennanJ observed that where psychiatric abnormality falling short of insanity is a cause of or a factor contributing to criminal conduct, the sentencing of an offender may be affected and the abnormality may on one view lead to a lenient sentence and, on the other, to a sentence which is severe. This involves balancing issues of culpability, deterrence and safety of the community.

16. It is highly unlikely that any different sentence would have been imposed had the applicant’s various conditions been revealed to her Honour. The prospects, then, are so poor for success on appeal that there is no utility in granting the extension of time. Furthermore, the explanation is not compelling. The realisation that he may serve all of his sentence before release as he has not shown himself to be a good risk for release on parole has, no doubt, informed the applicant’s decision to seek an extension of time. On the other hand the positive progress that he says he has made from his closer connection with Corrective Services may be regarded favourably by the parole authorities.

Footnotes

1. The court had ordered parole eligibility of 20 December 2008. ↩

2. [1999] 2 Qd R 667. ↩

3. Transcript 17 April 2008 at p 1-13. ↩

4. At p 1-14. ↩

5. [2000] QCA 399. ↩

6. [2005] QCA 348. ↩

7. (1978) 20 ALR 1. ↩