Court of Appeal (Qld)|2005-02-09|Before: de Jersey CJ, McPherson JA and Chesterman JSeparate, reasons for judgment of each member of the Court, each concurring as to the, order made
de Jersey CJ, McPherson JA and Chesterman JSeparate, reasons for judgment of each member of the Court, each concurring as to the, order made
Catchwords
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –
ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS
–
ADJOURNMENT – GROUNDS FOR GRANTING OR REFUSING – where applicant had
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS–ADJOURNMENT – GROUNDS FOR GRANTING OR REFUSING – where applicant hadalways represented himself – whereapplicant had ample time to preparecase and had done so comprehensibly in writing – where applicant displayedan appreciationof the points he wished to argue – whether unrepresentedapplicant should be granted an adjournment to research the processof a criminalappealCRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENTAND PUNISHMENT – SENTENCE – FACTORS TO BE TAKENINTO ACCOUNT –MISCELLANEOUS MATTERS – PLEA OF GUILTY, CONTRITION AND CO-OPERATION– where applicant gave earlyplea and cooperated with police – whereapplicant found guilty of committing serious sexual offences – whethersentence
should be reduced
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT
AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN
INTO ACCOUNT –
MISCELLANEOUS MATTERS – REMISSION, PAROLE AND PRISONER CLASSIFICATION
– OFFENCE COMMITTED WHILE
ON BAIL OR PROBATION AND EFFECT OF BREACH OF
PROBATION – where applicant claims Community Corrections Board would not
likely
respect court’s recommendation as to parole – where applicant
had already breached a suspended sentence – whether
overall term of
imprisonment should be suspended rather than applicant being left with a
recommendation as to parole
Judgment (16 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
THE CHIEF JUSTICE: On the 24th of June 2004, the applicant was sentenced to six years' imprisonment with a recommendation for post-prison community based release after two years on a count of maintaining a sexual relationship with a child under 16 years of age with the aggravating circumstances that, in the course of the relationship, he raped her and permitted himself to be dealt with indecently at a time when she was under 12 years of age and in his care. He seeks leave to appeal. He pleaded guilty to that offence of maintaining and to the specific offences on which the maintaining count was based.
[3]
On the 18th of August 2004, the applicant filed an application for extension of time within which to seek leave to appeal against sentence. The time for applying for leave to appeal against sentence expired on the 22nd of July 2004.
[4]
In his application for extension of time the applicant offered no particular explanation as to why he did not apply within time or as to the delay of some 27 days after the expiration of the time limited for applying. He has now withdrawn his application save in so far as it applies to the count of maintaining an unlawful sexual relationship.
[5]
As to that, the applicant contends that the learned sentencing Judge paid insufficient weight to his early plea and his cooperation with the police. He has said that he will not, while incarcerated, reach the requisite low or open classification within the two years specified in the Judge's recommendation as to parole. He also asserts that the relevant Community Corrections Board will not be likely to respect the Court's recommendation as to parole.
[6]
In lieu of the sentence which was imposed, he seeks an overall penalty of five years' imprisonment suspended after two and a half years.
[7]
At the outset of this morning's hearing and as foreshadowed in writing, the applicant sought an adjournment of the application for a period of four months so that he might carry out research on the process. In this application, the applicant has always represented himself. I take the view that he has had ample time to prepare and present his case and he has done so comprehensibly in writing. Through the documentation, he has displayed an appreciation of the points he seeks to ventilate. I would accordingly refuse the application for an adjournment.
[8]
The maintaining offence involved the applicant's seven to eight year old stepdaughter and related to a period of about two years including three instances of rape and many instances of digital penetration and also oral sex and indecent touching. At the time, the applicant was aged 42 to 44 years and he was subject to a suspended sentence of 12 months' imprisonment wholly suspended for two years which had been imposed in the District Court in August 2001.
[9]
The maintaining charge covered the period June 2001 to April 2003. The suspended sentence had been imposed for entering a dwelling with intent and using violence while in company and some assaults.
[10]
The learned sentencing Judge on this occasion considered the aspect of suspension enhanced the gravity of the instant offending and that it was not unjust to activate the 12 months' imprisonment which had been suspended. She ordered that the 12 months' imprisonment be served cumulatively upon the six year term which she imposed for the maintaining. The result is that the applicant is subject to an overall term of seven years' imprisonment with a recommendation that he be considered for post-prison community based release after two years.
[11]
It is unarguable that the learned Judge was entitled to activate the suspended term and to require that the 12 month term be served cumulatively upon the term imposed in respect of the maintaining - that is, as I mean to convey, unarguably right. There could likewise be no dispute about the appropriateness of the six year head term imposed in respect of the maintaining having regard to its gravity.
[12]
As to whether the overall term should have been suspended rather than the applicant's being left with a recommendation as to parole, the significant point, other matters apart, is that the applicant had already been given the benefit of the suspension which he had breached. In any case, it fell within the reasonable discretion of the sentencing Judge to elect for a recommendation in a case like this.
[13]
It follows that if an extension of time were granted the application for leave to appeal would have no reasonable prospect of success.
[14]
Accordingly, I would refuse the application for extension of time.
[15]
McPHERSON JA: Having heard what the Chief Justice has said, I agree that the application for leave to appeal should be refused.
[16]
THE CHIEF JUSTICE: The order is as I have indicated.