R v Ford [2009] QCA 132

SUPREME COURT OF QUEENSLAND

CITATION: R v Ford [2009] QCA 132

PARTIES: R / v / FORD, Garry Robin / (applicant)

FILE NO/S: CA No 74 of 2008 / DC No 1253 of 2006

DIVISION: Court of Appeal

PROCEEDING: Application for Extension (Conviction) / Sentence Application

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 22 May 2009

DELIVERED AT: Brisbane

HEARING DATE: 15 May 2009

JUDGES: Keane and Chesterman JJA and A Lyons J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: Application for extension of time to appeal against conviction refused****Application for leave to appeal against sentence refused

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – WHAT CONSTITUTES – where applicant alleged miscarriage of justice insofar as counsel at trial was refused an adjournment – where applicant alleged refusal arose from listing judge's preconceived view of his guilt – where transcripts reveal counsel at trial had previously advised Court that matter was ready to proceed – where Crown objected to adjournment due to complainant's ill health – whether refusal to adjourn trial constitutes miscarriage of justice / CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – WHAT CONSTITUTES – where applicant alleged miscarriage of justice insofar as refusal to adjourn trial prevented trial counsel from receiving adequate instructions from applicant – where commencement of trial was delayed to permit trial counsel to be instructed – where trial counsel conducted case in a manner consistent with having received instructions from applicant – whether miscarriage of justice / CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – WHAT CONSTITUTES – where applicant convicted of attempted sodomy of and permitting himself to be sodomised by a child under 16 years – where applicant asserted Crown failed to established a "satisfactory date" as to applicant's knowledge that complainant was HIV positive – where undisputed evidence was that parties used a condom and that applicant was unconcerned with complainant's HIV status – whether miscarriage of justice / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant previously sentenced to eight years imprisonment with respect to other sexual offences against other complainants – where applicant sentenced to three years imprisonment cumulatively with respect to instant complaint – where the effect of instant sentence to postpone parole eligibility by 18 months – whether sentence manifestly excessive / R v Pandelis [2009] QCA 25, cited

COUNSEL: The applicant appeared on his own behalf / M J Copley SC for the respondent

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

1. KEANE JA: On 13 December 2006 the applicant was convicted upon the verdict of a jury of one count of wilfully exposing a child under 16 years to an indecent film, one count of indecent dealing with a child under 16 years, one count of attempted sodomy and one count of permitting himself to be sodomised. He was acquitted of three other counts, and the prosecution declined at the end of the Crown case to proceed on five other counts. The offences were alleged to have occurred between 1 December 1992 and 31 December 1995.

2. On 29 February 2008 he was sentenced to concurrent terms of three years imprisonment in respect of each of these offences.

3. The applicant duly filed an application for leave to appeal against his sentence.

4. On 18 March 2008 the applicant filed an application for an extension of time within which to appeal against the convictions in December 2006. An amended notice of appeal was filed on 20 March 2008. In that amended notice of appeal the applicant raised three complaints in relation to the convictions as well as his complaint in relation to the severity of his sentence.

5. The application for an extension of time came before this Court on 1 August 2008. On that occasion the application was adjourned to enable the applicant, who represents himself, to attempt to marshal the material necessary to support his application. In particular, the applicant wished to obtain the transcripts of proceedings relating to the listing of his trial in December 2006 and evidence of the timing of the diagnosis of the complainant as HIV positive.

6. There was a long period of delay between the convictions and the applicant's attempt to appeal against those convictions. In an affidavit sworn on 19 September 2008, the applicant says that he expected that his former solicitor was doing what needed to be done to pursue an appeal. It is difficult, however, to accept that the applicant could truly have believed that his former solicitor was prosecuting an appeal given the great delay which occurred. It may be that this delay is more truly explicable on the basis that until the applicant was actually sentenced for these offences, the convictions were of little moment to him because he was already serving a term of imprisonment for sexual offences against young men other than the complainant.

7. I am not inclined to regard the explanation given by the applicant for the delay as satisfactory, but the more important question, so far as the grant of an extension of time within which to appeal is concerned, is whether the proposed appeal has any merit. I shall discuss the applicant's grounds of complaint in relation to his convictions directly, but first it is necessary to summarise the circumstances of the offences of which the applicant was convicted.

The convictions

8. The charges on which the applicant was tried concerned a series of sexual offences committed on the male complainant between 1 December 1992 and 31 December 1995. Five of the counts on which the applicant was tried concerned allegations of indecent treatment of a child. It was an element of these offences that the complainant was under the age of 16 years when the incidents in question occurred. The applicant was convicted on two of these counts.

9. In relation to the indecent dealing offences, the defence at trial did not dispute that the applicant had engaged in the acts of fellatio with the complainant of which the complainant gave evidence. The applicant disputed only the timing of these incidents, contending that they occurred after the complainant's 16th birthday.

10. In relation to the sodomy offences, the applicant disputed the complainant's evidence that such incidents occurred. The case put by the defence at trial was that the applicant did not have or attempt to have anal sex with the complainant because the complainant was HIV positive.

11. The complainant's evidence was that he met the applicant during the school holidays prior to commencing grade 8 at a suburban high school. The complainant was then 13 years old. There was no dispute about the complainant's date of birth or the fact that he commenced grade 8 at a suburban high school on 1 February 1993.

12. The applicant did not give or call evidence at his trial.

The applicant's challenges to the convictions

13. The first ground of complaint raised by the applicant's notice of appeal is that he suffered a miscarriage of justice because, on 6 December 2006, Wolfe CJDC listed the matter for trial when O'Sullivan DCJ had, on 4 December 2006, adjourned the matter to the next call-over. The applicant asserts that Wolfe CJDC listed the matter for trial because she had a preconceived view of the applicant's guilt in circumstances where his side was not ready for trial.

14. It will be recalled that one of the reasons why the present application was adjourned on 1 August 2008 was to enable the applicant to obtain transcripts of the hearings relating to the listing of the case for trial. These transcripts have now been obtained; they demonstrate that the applicant's complaints are without substance.

15. The transcript of the hearing before Wolfe CJDC on 6 December 2006 shows that the applicant's counsel asserted that the trial was ready to proceed. Counsel informed Wolfe CJDC that, on 4 December 2006, he had informed O'Sullivan DCJ, who had been listed as the trial judge, that he required a short adjournment that day to seek instructions from the applicant, but that O'Sullivan DCJ declined that request and adjourned the matter to the next call-over on the basis of her Honour's view that the case was not ready for trial.

16. Reference to the transcript of 4 December 2006 also shows that O'Sullivan DCJ left it open to the prosecution to approach the Chief Judge to make alternative arrangements for the trial of the matter. The prosecution approached the Chief Judge to arrange for the matter to proceed promptly. There was nothing sinister or unfair in this approach. It was made because of concerns as to the state of health of the complainant.

17. The applicant's legal representatives did not suggest that the trial on 6 December 2006 should be adjourned because they were not sufficiently prepared. Indeed, they were prepared to proceed on 4 December 2006.

18. As it happened, Griffin DCJ was available on 6 December 2006 to conduct the applicant's trial. When the matter came before Griffin DCJ, the applicant's counsel did not seek an adjournment of the hearing. Counsel did, however, seek, and was granted, time to confer with the applicant. In fact, the applicant was not arraigned until the following day. Before the jury were empanelled, the applicant's counsel raised objections, with some success, to the admission of some of the evidence upon which the Crown sought to rely against the applicant.

19. The applicant asserts that his solicitor had only been informed of the 4 December trial date on 1 December 2006. That assertion is demonstrably false. The transcript of 4 December 2006 shows that 10 days earlier the defence had informed the mentions judge that the trial was ready to proceed.

20. There is no substance in the first of the applicant's proposed grounds of appeal.

"crucial evidence was not known by the Defence Counsel such as when the house extensions were completed, when [the complainant] became HIV positive, and the relevance [sic] correspondence about [the complainant]. The new Counsel was never briefed on witness Goodwin."

The relevance in this complaint of the "house extensions" is to the timing of the alleged offences, the crucial question being whether the complainant was 16 years old when the sexual acts in question occurred. The timing of the house extensions was arguably relevant to this issue.

22. The applicant's complaint in this regard is demonstrably false as can be seen from the circumstance that, at trial, the applicant's counsel put propositions to the complainant in cross-examination which reflected instructions relating to when the house extensions were finished. The applicant could have, but chose not to, give evidence in relation to these matters.

23. The applicant's counsel at trial also put propositions to the complainant in cross-examination relating to when the complainant became aware that he was HIV positive and when he told the applicant of this diagnosis.

24. The only evidence given by Goodwin which was adverse to the applicant was to prove a tape-recording of a conversation between Goodwin and the applicant. The defence did not dispute the authenticity of this tape-recording.

25. For these reasons, I consider that there is no substance in the second of the applicant's complaints.

26. The applicant's third complaint is that a miscarriage of justice occurred because the prosecution failed to establish "a satisfactory date" for when the applicant knew that the complainant was HIV positive.

27. The complainant's evidence at trial was that he was diagnosed with HIV at the beginning of 1995. The complainant said that he informed the applicant about the diagnosis. The complainant said that his relationship with the applicant ceased in about 1999.

28. The complainant, when cross-examined, admitted that he might have purchased a computer with the applicant's advice in about 1996. He said that he bought the computer before he was diagnosed with HIV. He said he thought that he bought the computer in 1994. The complainant was not sure whether the sodomy and attempted sodomy occurred after he had been diagnosed with HIV.

29. The complainant said that when he told the applicant that he, the complainant, had HIV, the applicant said that he did not mind. A passage from Goodwin's tape-recorded conversation with the applicant is relevant here:

"Goodwin:'[The complainant] managed to get himself HIV positive.'

The applicant seemed to blame 'Tom' and an absence of condoms for that.

Goodwin:'You've been having sex with [the complainant]. You didn't get anything.'

Applicant:'that was before'

Goodwin:'Oh, that was before?'

Applicant:'that was only a couple of years ago. Oh, Tom became a very nasty piece.'

Goodwin:'So how long ago did he get it and how long?'

Applicant:'Tom? End of 95.'

Goodwin:'[The complainant] got HIV and you were only having sex with him before that?'

Applicant:'Pardon'

Goodwin:'And you were only having sex with him before that?'

Applicant:'I've still done it after.'

Goodwin:'even after he got it?'

Applicant:'Yeah but I didn't know until after. We didn't know about it until 1996' The applicant added 'but I'm not scared by it.'"

30. The applicant's counsel submitted to the jury that it was "borderline absurd" to suggest that the applicant would have engaged in sodomy with the complainant knowing him to be HIV positive. But the complainant had not asserted that he had been diagnosed as HIV positive when the attempted sodomy and sodomy occurred. These particular offences were alleged to have occurred between 1 January 1994 and 31 December 1995. And in any event, the complainant said that on both occasions a condom was used.

31. When the application came before this Court on 1 August 2008, the applicant sought to make a central issue in his application the date on which the complainant was diagnosed with HIV. The respondent agreed to attempt to clarify the timing of the diagnosis by obtaining the relevant Queensland Health records. Records produced by Queensland Health pursuant to a subpoena do not show when the complainant was diagnosed as HIV positive or when he was informed of that diagnosis. In notes dated "27.6.96" it is said that he knew of his condition "4/12 ago", ie four months before.

32. It is tolerably clear that the issue which the applicant now seeks to agitate is a false issue. The uncontradicted evidence before the jury was to the effect that the parties used a condom. The tape-recording shows that the applicant was having sex with the complainant both before and after the diagnosis, and strongly suggests that they were having sexual relations before 1996.

33. The applicant makes much of the absence from the complainant's medical records of an assertion that the complainant had been sodomised by the applicant, whereas the complainant identified another man with whom he had sexual relations. But contrary to the applicant's assertion, this evidence does not tend to establish the applicant's innocence. The absence of reference to the applicant in the medical records is readily explicable by the circumstance that, as the complainant said in his unchallenged evidence, the applicant used a condom when he had intercourse with the complainant.

34. The most outlandish of the applicant's complaints is that he did not have the opportunity of calling evidence from a witness, Mr C. Reference to the transcript of the trial shows that the Crown sought to call Mr C, but the applicant's counsel successfully objected to the evidence which the Crown proposed to adduce from Mr C. The learned trial judge ruled that this evidence would have prejudiced the applicant's case to an extent where that prejudice outweighed the probative value of the evidence as evidence tending to prove the applicant's guilt of the offences with which he was charged. The defence did not seek to call Mr C as part of its own case, nor did the defence ask the Crown to admit any matter of fact of which Mr C might have given evidence.

35. There is no substance in the applicant's third complaint concerning his convictions.

36. There is no good reason to extend the time within which the applicant might appeal against his convictions, and accordingly the application for an extension of time should be refused.

Sentence

37. The applicant was 43 to 46 years old when the offences were committed. He was 58 years old when he was sentenced.

38. On 13 August 2004 the applicant was sentenced to eight years imprisonment for sexual and other offences committed against five teenage boys between 1 January 1989 and 1 December 1990.

39. The sentence of three years imposed on 29 February 2008 was ordered to be served cumulatively upon the term imposed in August 2004. The effect of the sentence of February 2008 was to postpone his eligibility for parole by 18 months.

40. The applicant contends that the imposition of a cumulative term of imprisonment was manifestly excessive. The applicant also contends that the imposition of a cumulative term of imprisonment was contrary to the intention of the learned sentencing judge, it being argued that his Honour intended that the sentences should operate concurrently with those which the applicant was already serving.

41. The second of the applicant's contentions is plainly wrong. The transcript shows that in sentencing the applicant the learned judge expressed the view that the applicant's offending warranted a term of seven years imprisonment, but acknowledged that there needed to be recognition of the fact that the applicant had already served four years imprisonment for the other offences. Because the offences of present concern were committed separately from the other offences for which he was earlier convicted, the learned sentencing judge concluded that the sentence which he imposed should be served cumulatively. That view was one which was plainly open to his Honour.

42. As to the first of the applicant's contentions, a sentence which reflects a notional head sentence of seven years imprisonment before taking account of considerations of totality cannot be said to involve excessive punishment of the applicant.¹

43. The applicant was guilty of predatory sexual offences against a child whom he had befriended. He has demonstrated no remorse. He continues to demonstrate not even a glimmer of appreciation of his responsibility for the offences he committed upon his child victim. The imposition of a cumulative sentence of three years imprisonment gives effect to the considerations of community protection which necessarily arise in a case such as this.

44. The application for leave to appeal against sentence should be refused.

45. CHESTERMAN JA: I agree with Keane JA.

46. A LYONS J: I agree with the reasons of Keane JA.

Footnotes

1. Cf R v Pandelis [2009] QCA 25 at [16] and [19]. ↩