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ORIGINATING COURT: District Court at Bowen

DELIVERED ON: 27 April 2001

DELIVERED AT: Brisbane

HEARING DATE: 6 April 2001

JUDGE: Thomas JA, Chesterman and Holmes JJ / Judgment of the Court

ORDER: The applications for extensions of time to appeal against conviction and for leave to appeal against sentence are refused.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSON – APPLICATION TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where appellant pleaded guilty – where there is no evidence to support a claim of inducement to plead guilty – whether disparity between appellants sentence and co-offenders sentence appropriate / The Queen v Gadaloff [1999] QCA 286; CA No 24 of 1999, 24 September 1999, followed

COUNSEL: The applicant appeared on his own behalf / Ms S Bain for the respondent

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

THE COURT: The applicant seeks an extension of time in which to (a) appeal against his conviction on a charge that on 4 May 1999 at Airlie Beach he robbed two female employees of a cafè being at the time armed with a pair of scissors with which he menaced the two women; (b) apply for leave to appeal against the sentence in respect of that offence. When arraigned on 4 November 1999 he pleaded guilty and was sentenced to a term of six years imprisonment. As well the sentencing judge declared him to be a serious violent offender. An application for leave to appeal against sentence was filed a week later, on 11 November 1999, and was heard on 17 March 2000 when he was given leave to appeal and an order was made expunging the declaration but leaving unaffected the sentence of six years imprisonment.

Over a year later, on 15 January 2001, the applicant signed notices of application for extensions of time within which to appeal against conviction and to apply for leave to appeal against sentence.

When the application was called on for hearing the applicant, who spoke for himself by telephone, announced that he was not persisting with his application for leave to appeal against conviction but was concerned only to address what he saw as an injustice in the sentence imposed on him. It is, accordingly, unnecessary to address the merits of the application for an extension of time to appeal against conviction but because the applicant is unrepresented it may be appropriate to indicate that that application had no realistic chance of succeeding because he did not make out a case for disturbing the plea of guilty. As this court pointed out in The Queen v Gadaloff [1999] QCA 286; (CA No 24 of 1999, 24 September 1999):

“ . . . The applicant, having pleaded guilty to the charges against him, now requires leave of the court to withdraw his pleas to those charges; and that, coming as the appeal does after his conviction on such pleas, the onus lies on him to establish that a miscarriage of justice took place when the court accepted and acted on his pleas . . . The essential question . . . is whether the entering of the plea of guilty should be regarded, in all the circumstances, as attended by such unfairness as to warrant a new trial . . . A plea of guilty which is the product of intimidation, duress, improper pressure or improper inducement, or harassment is not a free and voluntary plea on which a court may properly act . . . but, because the law regards a plea of guilty made by a person in possession of all the facts and intending to plead guilty as “the most cogent admission that can be made” . . . it is necessary that a miscarriage of justice be demonstrated before leave is granted to withdraw such a plea.”

The applicant’s material advanced two reasons in support of his application to withdraw his plea of guilty. The first is that he was persuaded by the arresting police officer, Constable Jenvey, that if he contested the charge but was found guilty he could expect to receive a sentence of ten year’s imprisonment, but on the other hand, if he pleaded guilty he would receive a sentence of only two years imprisonment. The second ground is that the prosecution case was anchored on the testimony of Jessop whose statements were said to be demonstrably false.

In relation to the first point a statement from Mr Jenvey contains a detailed denial of the inducement. More pertinently the applicant’s former solicitor has provided an affidavit which indicates the extreme unlikelihood that the inducement complained of, if made, affected the applicant’s decision to plead guilty. Mr Taylor explains that both he and counsel, Mr Dillon, represented the applicant who had given instructions to defend the charge. On the morning before the trial was to commence, 3 November 1999, Messrs Taylor and Dillon conferred with the applicant in the Bowen watch house. The applicant volunteered that he had reconsidered his position and was contemplating pleading guilty “to take advantage of a plea for the purpose of sentence”. Mr Dillon explained that the prosecutor would allege that he was the instigator of the offence, planned it, and participated in it. He also advised the applicant that Jessop had received a sentence of five years’ imprisonment (in fact he had received four years to be suspended after serving one year) and that he could expect no less a sentence (than five years). The applicant asked if he would “get a discount for a plea of guilty” and was told that such a plea would be a mitigating factor. The lawyers left the applicant to consider his position. Mr Taylor returned after a short interval and was advised by the applicant that he wanted to “just get up and apologise for being there and being involved”. Mr Taylor explained that a plea of guilty would mean that he could not contradict the facts outlined by the prosecutor. The applicant replied that he was “scared” that if he contested the charge and was convicted he would receive a heavier sentence than if he pleaded guilty. The applicant then signed written instructions to plead guilty.

When arraigned the next day, 4 November 1999, the applicant duly pleaded guilty. The prosecutor outlined the facts of the applicant’s involvement in the robbery. Mr Dillon who appeared at the sentence for the applicant expressly indicated that “there is no dispute with the Crown case as outlined by my learned friend”.

Although none of the complainants were cross-examined the affidavit material does not disclose any basis for confidence that the applicant’s plea was induced by duress or misrepresentation. Mr Taylor’s affidavit, Mr Dillon’s concession at the hearing and the signed instructions tend strongly against such an inducement. It is to be noted that the applicant did not complain to his lawyers about Mr Jenvey’s statement and did not seek their advice about what he is alleged to have said. Nor does he explain why he did not try to withdraw his plea at the same time that he first appealed against sentence. According to his own account he knew then that Jenvey had misled him.

The complaint about the falsity of Jessop’s statements disappears with the rejection of the application to withdraw the plea. The essential truth of what Jessop had said was accepted by the act of pleading guilty to the charge.

The remaining application to extend time can only succeed if the applicant can show that he has, at least, an arguable case that the sentence is excessive and, of course, the court may also take into account whether or not the applicant has shown good reason why the application was not lodged within time.

As to the latter point the applicant says only that he was:

“ . . . unaware at that time that (he) may be able to appeal the . . . decision as (he) was of the understanding that once only can a person appeal to a court.”

The time referred to is the period between November 1999 and March 2000 when his first application for leave to appeal was pending.

The circumstances of the offence were outlined by McPherson JA when giving judgment on 17 March 2000. His Honour said:

“ . . . On 4 May 1999 the applicant, together with a man called Jessop, carried out an armed robbery at a fish shop . . . Through having come to know a young woman employee of the shop, the applicant had become familiar with the staffing and procedures at the fish shop . . . It is not unimportant to notice that the information . . . was obtained in March 1999 . . . about two months before the offence was committed.

Jessop . . . met the applicant in Victoria and . . . in April they travelled together to Airlie Beach. Once they were there the applicant told Jessop of the fish shop describing it as an easy place to rob. On the day of the robbery Jessop took a bag with dark clothing in it, and both and he and the applicant walked from the place where they were staying to Airlie Beach. Jessop said he would do the robbery and the applicant instructed him to put on the dark clothes, and gave him a cooler bag in which to store the money and a pair of scissors with which to menace the victims. The applicant also instructed Jessop to tell the people in the shop that he “meant business” and that he wanted their money. He directed Jessop to the back door and, while the applicant acted as a lookout, Jessop entered the shop.

Jessop demanded and received $1,166.00 from the two young women working in the shop . . . He then left through the rear door. The applicant met him and they decamped disposing of the clothing in some mangroves nearby. Jessop handed the money to the applicant and they returned to their room . . . Jessop a little . . . later went out to find a friend . . . and, when he returned, the applicant had gone taking all the money with him.”

The applicant’s real grievance is with the disparity between the sentence imposed on him and that awarded to Jessop. He points out that Jessop was the one who actually committed the robbery but received a substantially more lenient sentence. It is, of course, to avoid a legitimate sense of grievance that co-offenders are, as far as the circumstances permit, awarded equivalent punishment. However the parity principle has to yield where the circumstances of co-offenders differ markedly. That is the case here and explains why Jessop received a relatively light sentence.

There are four factors which differentiate the applicant’s circumstances from those of Jessop. For a start it was the applicant who instigated the offence. The Court of Appeal which considered the applicant’s sentence noted:

“It also seems . . . to be true . . . that were it not for the applicant, Jessop would not have committed the offence; or so his Honour thought, and it is difficult . . . to disagree with that conclusion.”

Moreover there was a degree of cynicism in the applicant’s importunity. It is a fair inference that the applicant intended at all times to steal the fruits of the robbery from Jessop who was put up to it for that purpose. As already noted it was the applicant who planned the robbery and instructed Jessop how to carry it out. He himself remained outside the cafè so he could not be identified by the victims as a participant. On this basis the degree of criminality in the applicant’s conduct was greater than Jessop’s.

The second point of difference is that the applicant has a substantially greater criminal history. Of most relevance are convictions in New South Wales in 1988, when the applicant was twenty-one, for some seven offences of robbery. There were five counts of assault and robbery with an offensive weapon for which he was sentenced to serve five years’ penal servitude. At the same time he was convicted of conspiring to rob whilst armed and of assault and robbery with a weapon. For these he was also sentenced to five years’ penal servitude, to be served concurrently with each other but cumulative on the sentences first mentioned, giving a head sentence of ten years with a non-parole period of four years. Ten months later he was charged with escaping from lawful custody and sentenced to six months additional imprisonment. In 1991 he was convicted of breaking, entering and stealing and sentenced to a further six months’ imprisonment. In 1992 he was charged with stealing a motor vehicle and sentenced to twelve months’ imprisonment. By contrast Jessop, according to the District Court judge who sentenced him, had “no previous offences for violence and . . previous offences for dishonesty only (involving) fines totalling some $350.00”.

Jessop was also considerably younger than the applicant. He was twenty-four at the time of the offence. The applicant was thirty-two. Allied to his relative youth there was the point, made above, that this was the first time he had committed a serious crime.

The fourth point of departure is that Jessop had substantially cooperated with the investigative and prosecuting authorities. While initially denying involvement in the robbery in a short space of time he admitted it and implicated the applicant. He provided a signed statement describing his and the applicant’s participation in the offence. He indicated that he would give evidence against the applicant and he was to be a witness at the trial. His testimony was only made unnecessary by the applicant’s late change of plea. He pleaded guilty to an ex officio indictment on 9 August 1999. The early plea of guilty was a factor to be taken into account by way of producing a discount on the sentence otherwise appropriate. More significant the degree of cooperation by Jessop in the prosecution of the case against the applicant and his willingness to give evidence against him is a factor which ordinarily produces a substantial discount to a sentence. They were completely lacking in the case of the applicant who, until the last moment, contested the charge and obliged the Crown to prepare for trial.

The court which heard the applicant’s appeal against sentence was alive to the disparate circumstances between Jessop and the applicant. Having referred to Jessop’s involvement, personal circumstances, criminal history and cooperation, the court noted:

“From a sentencing standpoint, the contrast with the applicant here is . . . so obvious as not to require further elucidation.”

Although the applicant’s sense that he has been treated unjustly by contrast with Jessop is genuine, an objective review of the differences between them shows that it is misplaced. Jessop had very much more “going for him” than the applicant. Without those extenuating circumstances he would have been treated much the same as the applicant.

This is enough to dispose of the application but there is a more fundamental objection to it. The applicant was right in his initial appreciation that he could appeal only once against the sentence imposed on him. He did appeal and obtained a reduction in its severity. That appeal has resulted in an order of the Court of Appeal which cannot be varied or set aside because the applicant is dissatisfied with it. Pursuant to that order the applicant is to serve six years’ imprisonment, subject of course to remissions and eligibility for parole, but without a declaration that he was a serious violent offender. Save for exceptional circumstances which do exist here the only way the order can be altered is by an order of the High Court should it grant special leave to appeal, and then allow the appeal.

There is no point in granting an extension of time within which to apply for leave to appeal against sentence because the application could not succeed. It is based upon a misconception as to the availability of a right to a second appeal. Moreover its only real ground, lack of parity with Jessop’s sentence, would not justify a reduction in sentence even if this court were now able to make such an order.

For these reasons we would refuse the applications for extensions of time to appeal against conviction and for leave to appeal against sentence.