R v Hedland [2003] QCA 210

SUPREME COURT OF QUEENSLAND

CITATION: R v Hedland [2003] QCA 210

PARTIES: R v HEDLAND, Trevor Malcom (applicant)

FILE NO/S: CA No 81 of 2003 CA No 305 of 1989

DIVISION: Court of Appeal

PROCEEDING: Application for Extension (Sentence)

ORIGINATING COURT: Supreme Court at Mt Isa

DELIVERED EX TEMPORE ON: 23 May 2003

DELIVERED AT: Brisbane

HEARING DATE: 23 May 2003

JUDGES: McMurdo P, Williams JA & White J Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Application refused

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – POWERS OF APPELLATE COURT – where applicant sought leave for extension of time in which to appeal against sentence – where applicant had appealed previously – whether court has jurisdiction to entertain second appeal on the merits / Supreme Court of Queensland Act 1991 (Qld), s 8 / R v Ali [2003] QCA 117; CA No 371 of 2002, 18 March 2003, followed R v Long [2001] QCA 318; CA No 113 of 2001, 10 August 2001, followed R v Lowrie [1998] 2 Qd R 579, followed R v Salles [2003] QCA 127; CA No 10 of 2003, 20 March 2003, followed

COUNSEL: The applicant appeared on his own behalf C W Heaton for the respondent

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

WHITE J: Mr Trevor Hedland who appears for himself is seeking leave for an extension of time in which to seek leave to appeal against a sentence which was imposed upon him in the Supreme Court on circuit in Mount Isa on the 25th of September 1989.

He was convicted on his own guilty pleas in respect of eight counts. They were two counts of break, enter and steal; one count of stealing; one count of armed robbery; one count of burglary; one count of attempted unlawful use of a motor vehicle; and another count of unlawful use of a motor vehicle; and attempted murder.

The events which gave rise to the charges occurred on the 16th of January 1989. Mr Hedland was sentenced to various terms of imprisonment, the greatest of which was 20 years for the attempted murder. The other terms were concurrent.

He was then aged 29 years and had an extensive criminal history. His co‑accused who was aged 18 years at the time was not charged with attempted murder, but was charged by himself with a separate count of doing grievous bodily harm for which he was sentenced to a term of imprisonment of ten years.

He appealed his sentence of 20 years on the ground that it was manifestly excessive, and also the lack of parity with his co‑offender.

The Court of Criminal Appeal heard the appeal on the 21st and 22nd of November 1989, and delivered its reasons for dismissing the appeal on 15 December 1989. The decision is reported at (1989) 46 Australian Criminal Reports 37.

The applicant was represented by the same counsel on his appeal who had appeared for him on the sentence at Mount Isa. I mention this because the applicant in his written submissions, and again today orally before the Court, said that he was in ignorance that he had previously appealed his sentence in 1989. Even though the box on the appeal form indicating Mr Hedland's desire to be present on the appeal in 1989 was ticked "yes", it was not and is not the practice when an appellant/applicant is legally represented to be produced to the Court for an appeal hearing.

It is also clear from the reasons for judgment of the Court in 1989 that the matters of the excessiveness of the sentence and parity with his co‑accused were canvassed before the Court, and their Honours dealt with them in their judgment.

Mr Hedland now seeks to canvass a number of issues including that his sentence was far too lengthy when considered against the kind of sentence which might be given for attempted murder today.

He also makes reference to prejudice against him as an Aboriginal man, and also that the sentence is tantamount to a life sentence, as well as revisiting disparity between his sentence and that of his co‑accused.

It is unnecessary to canvass the facts and circumstances surrounding the crimes to which the applicant pleaded guilty in 1989 because since the Court of Criminal Appeal has already heard and determined an appeal against sentence in relation to those offences, this Court, as the learned presiding Judge has already said, has no jurisdiction to entertain a second appeal.

Pursuant to section 668 of the Criminal Code, a convicted person has a right to appeal against sentence with the leave of the Court. Once an appeal on the merits has already been determined, any right of appeal has been exhausted. A convicted person may not pursue a second appeal on the merits.

This has been firmly established in a long line of authorities including R v. Grierson (1938) 60 CLR 431; R v. Alexanderson, MacQueen, Barlow and Farr [2001] QCA 400, CA 155, 156, 196 and 197 of 2001; R v. Corrigan (unreported) CA 205 of 2001; R v. Regazzoli [2001] QCA 482, CA 223 of 2001; R v. McGrady [2001] QCA 506, CA 249 of 2001; and more recently R v. Ali [2003] QCA 117, CA 371 of 2002, a decision of 18 March 2003; and R v. Salles [2003] QCA 127, CA 10 of 2003, a decision of 20 March 2003.

Section 8 of the Supreme Court of Queensland Act 1991, to which Mr Hedland makes reference in his written outline, provides that the Court has all jurisdiction that is necessary for the administration of justice in Queensland.

In R v. Lowrie [1998] 2 QdR 579, the majority of this Court concluded that section 8 did not confer criminal appellate jurisdiction on the Court which was not conferred by section 67 of the Criminal Code, and that case was followed in R v. Long [2001] QCA 318.

Similarly, Justice Williams dealt with the matter in his reasons for judgement in Alexanderson at page 8 of his reasons.

It might be added that although Mr Justice Dowsett, who was the sentencing Judge in 1989, made no recommendation outside the legislative scheme for early parole, it was always open to the applicant to make such an application for release on parole or home-based detention as the Corrective Service Act might provide, and that of course would depend on his conduct in prison.

And it might be noted that Mr Hedland escaped from prison custody on the 24th of April 1999 and was at large for two days before being returned to custody on the 26th of April, and for that he was sentenced to a further two years' imprisonment.

So since this Court has no jurisdiction to entertain the application, it should be refused.

PRESIDENT: I agree.

WILLIAMS JA: I agree.

PRESIDENT: That is the order of the Court.