R v Hundric [2005] QCA 324

SUPREME COURT OF QUEENSLAND

CITATION: R v Hundric [2005] QCA 324

PARTIES: R v HUNDRIC, Anthony George (applicant)

FILE NO/S: CA No 152 of 2005 / DC No 64 of 2004 / DC No 66 of 2004 / DC No 144 of 2004

DIVISION: Court of Appeal

PROCEEDING: Application for Extension (Sentence)

ORIGINATING COURT: District Court at Toowoomba

DELIVERED EX TEMPORE ON: 30 August 2005

DELIVERED AT: Brisbane

HEARING DATE: 30 August 2005

JUDGES: McMurdo P, Keane JA and Fryberg J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: **1.**Application to adduce further evidence refused / **2.**Application for extension of time to apply for leave to appeal against sentence refused

CATCHWORDS: CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION - QUEENSLAND - PROCEDURE - EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT - applicant five months out of time - explanation for delay that his lawyers did not inform him of his right to appeal and he only learnt of this from a visit by the Ombudsman - whether an extension of time should be granted / CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - FRESH EVIDENCE - applicant sought to place further evidence before Court of Appeal which was not before the sentencing court - evidence was available to applicant at time of sentence - whether application to adduce further evidence should be granted / CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - OTHER OFFENCES - applicant convicted after plea of guilty to 16 counts of fraud, two counts of fraud with a circumstance of aggravation and one count of stealing - offences committed during operational period of a suspended sentence - sentenced to three and half years imprisonment on the aggravated fraud counts and lesser concurrent terms of imprisonment on the remaining offences - 16 month suspended sentence activated - recommendation for post-prison community based release after 28 months - without recommendation applicant would ordinarily have been eligible for post-prison community based release after 21 months - 34 years old at sentence - amount of property involved in offending $85,000 - prior criminal history for similar offences - whether special circumstances existed for sentencing judge to order a non-parole point more than halfway through the sentence - whether sentence manifestly excessive / R v Griinke [1992] 1 Qd R 196, applied / R v Powell [1995] QCA 583; CA No 293 of 1995, 4 October 1995, considered / R v Whelan [1997] QCA 305; CA No 285 of 1997, 26 August 1997, applied

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

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

THE PRESIDENT: The applicant, Mr Hundric, who represents himself in this application pleaded guilty in the Toowoomba District Court on 3 September 2004 to two counts of fraud and two counts of fraud with a circumstance of aggravation on one indictment, and to one count of stealing, 14 counts of fraud and two counts of attempted fraud on another indictment presented ex officio.

He was ordered to serve the whole of a partly suspended sentence imposed on 16 November 2001 because some of the offences to which he pleaded guilty on 3 September 2004 were committed during the operational period of that suspended sentence. The learned primary judge sentenced Mr Hundric to three and a half years imprisonment for the offences of fraud with a circumstance of aggravation and to lesser concurrent sentences on the remaining offences. These offences were initially ordered to be served cumulatively on the 16 month term of imprisonment which had previously been suspended so that effectively he was sentenced to four years and 10 months imprisonment. The judge recommended that he be considered for post prison community based release after serving 28 months imprisonment. Later in the sentencing proceedings the judge changed the order so that all sentences were to be served concurrently. It seems the order was incorrectly endorsed on the indictment so that the sentences on the fresh offences were wrongly recorded as being cumulative upon the activated suspended sentence and the recommendation for parole after 28 months was not endorsed on the indictment so that the verdict and judgment record generated later was confusing.

As a result, on 6 December 2004 the judge re-opened the sentencing proceeding and ordered that the 16 month previously suspended term of imprisonment be served concurrently not, as ordered on 3 September 2004, cumulatively. This meant that Mr Hundric was serving a three and a half year term of imprisonment and would ordinarily become eligible for post prison community based release after serving 21 months. The judge, however, reconfirmed that she intended to recommend that he be eligible for post prison community based release after 28 months, that is seven months later than Mr Hundric would have been eligible had no recommendation been made. Mr Hundric's counsel submitted to her Honour that it was unusual to make a recommendation for parole after the standard eligibility date at the midway point of the sentence. Her Honour indicated that she was making the recommendation for post-prison community based release at this late point in the sentence to avoid imposing a cumulative sentence. Her Honour considered that a four year sentence could easily have been imposed and that structuring the sentence in this way was more favourable to the applicant than a four year head sentence.

On 1 June this year, at least five months out of time, Mr Hundric applied for an extension of time within which to apply for leave to appeal against his sentence on the grounds of "misrepresentation, severity of sentence and new evidence." By way of explanation for the long delay he states that his lawyers did not inform him of his right to appeal and he only learnt of this after a visit from the Ombudsman on 11 April 2005.

This explanation is not convincing but this Court would not summarily dismiss his application for an extension of time to apply for leave to appeal against sentence if Mr Hundric demonstrated that it was in the interests of justice to grant leave.

His primary concern seems to be that the judge's recommendation for post-prison community based release should have been made earlier than the halfway point when he would ordinarily have been eligible for post-prison community based release. He is particularly keen to be released into the community because of the health problems of his fiancé, who is a single parent. He believes he, his family and the community would benefit from his community supervision on parole.

He seeks to place further evidence before this Court which was not before the sentencing court. That evidence was available to him at the time of his sentence but he did not place it before the sentencing court. He has not demonstrated any reason why this Court should now receive it. His application to adduce further evidence is refused.

The only real question is whether the effective sentence in the light of the late recommendation for post-prison community based release was manifestly excessive. Mr Hundric was 34 years old at sentence. The amount of property involved in the offences was $85,000. He had been in presentence custody since 16 July 2004, a period of about two months. Her Honour took that time into account in determining the sentence so that Mr Hundric's head sentence was effectively one of about three years and eight months imprisonment. Her Honour also took into account his personal circumstances, including that his present partner had five children whom he supported. Mr Hundric had similar prior convictions. On 2 October 1998 he was convicted and fined for one count of fraud. On 16 November 2001 he was sentenced to two years imprisonment suspended after eight months for three years for 21 counts of fraud, two counts of passing a valueless cheque, one count of stealing and one count of making a false declaration. As noted, the offences to which he pleaded guilty on 3 September 2004 were committed during that three year operational period.

The decision of this Court in R v Powell [1995] QCA 583; CA No 293 of 1995, 4 October 1995, does not suggest that the sentence imposed in this case was manifestly excessive, even taking into account the term of presentence custody and the recommendation for post-prison community based release after the usual halfway point. In Powell the applicant pleaded guilty to offences involving fraud totalling over $50,000. He was 32 years old at sentence. He was sentenced to an effective term of imprisonment of four years with a recommendation for consideration for parole after 18 months. He was serving other terms of imprisonment for prior offences and the four year term was ordered to be served cumulatively on those sentences. The sentence imposed was not considered to be manifestly excessive.

The three and a half year head sentence (effectively about three years and eight months because of the presentence custody) imposed on this applicant, especially in the light of its concurrent nature with the activated 16 month period of the previously suspended sentence, was certainly not manifestly excessive. The recommendation for post-prison community based release at a time after the usual point at which Mr Hundric would be eligible to apply is unusual. In R v Whelan [1997] QCA 305; CA No 285 of 1997, 26 August 1997 this Court stated that, consistent with R v Griinke [1992] 1 Qd R 196, only where there are special circumstances does a sentencing court order a non-parole point more than halfway through a sentence. Those special circumstances include where sentences are properly made cumulative.

The learned sentencing judge did not make the sentences on the fresh offences cumulative upon the activated period of the breached suspended sentence but such a course would not have been inappropriate. Instead her Honour gave a late recommendation for post-prison community based release. This special circumstance means that her Honour did not err in taking this unusual course. It follows that the learned primary judge did not act on any wrong principle of law and did not impose a sentence which was manifestly excessive. It would therefore be futile to grant the extension of time because any application for leave to appeal against sentence would be most unlikely to succeed.

I would refuse the application for an extension of time to apply for leave to appeal against sentence.

KEANE JA: I agree with the reasons of the learned President and with the orders proposed by her Honour.

FRYBERG J: I also agree. I would add that the applicant drew our attention to the fact that he has been told that the parole authorities will quite likely not grant him post prison community based release or parole because the time remaining after he becomes eligible will be insufficient to comply with the guidelines or standards which have been set. If he is to have six months of home detention and six months of community based release there will be insufficient time, he said, for parole.

It should be evident to the relevant authorities that these considerations are ones of which the Court is aware and that in imposing this unusual sentence they are factors which the Court takes into account. They do not provide a reason for refusing to grant post prison community based release if that is otherwise appropriate, see R v Maxfield [2002] 1 Qd R 417.

I agree in the orders proposed.

THE PRESIDENT: The application is refused.