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[2026] QCA 56
respondent. The application for an extension of time to appeal was refused.
Manning sought permission to appeal his November 2020 sentences more than four years after the filing deadline. The Court accepted that a self-represented prisoner can face practical difficulties, but found that Manning's explanation did not account adequately for the delay. It also found that his proposed grounds did not show an arguable sentencing error. In particular, the offences were separate from those dealt with in 2018, the sentencing judge had considered totality and custody, and the sentence was not shown to be manifestly excessive or crushing. The Court therefore refused to extend time.
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2,138 words · generated 08/10/2026
In R v Manning [2026] QCA 56, the Queensland Court of Appeal considered whether Gregory Thomas Manning should receive an extension of time to seek leave to appeal sentences imposed on 10 November 2020. Brown JA delivered the Court's reasons. Bradley JA and Crowley J agreed ([1], [33]-[34]).
No linked legislation citations have been extracted yet.
Manning had pleaded guilty to four offences on two indictments. The first indictment concerned three offences against complainant A, who was 11 at the time: two aggravated indecent-treatment counts and one attempted aggravated indecent-treatment count. The District Court imposed two years' imprisonment on each of the first two counts and 18 months on the third. On the second indictment, Manning was sentenced to four years and six months for maintaining an unlawful relationship with complainant B ([2]).
The sentences were concurrent with one another, but cumulative on Manning's existing 10-and-a-half-year sentence imposed in April 2018 for maintaining an unlawful relationship with another child and other sexual offences ([2]). The sentencing judge fixed a parole eligibility date of 13 July 2027, 25 months later than the date fixed for the April 2018 sentence, 6 June 2025 ([3]).
The appeal deadline for the November 2020 sentence was 9 December 2020. Manning sought to appeal in January 2025, more than four years later ([4], [7]). He relied on difficulties associated with COVID-19, access to computers and mail, and time spent preparing an application for special leave to the High Court concerning his 2018 conviction and sentence. The High Court application was filed on 14 June 2021 and refused on 6 December 2024 ([7]).
Manning's proposed grounds included manifest excess, double jeopardy, failure to account for COVID-19 restrictions, failure to apply totality, a crushing sentence and failure to declare 188 days of pre-sentence custody ([5]). The Court refused the extension because it found neither an adequate explanation for the delay nor a reasonably arguable proposed ground ([6]-[7], [30]-[32]).
The Court described the extension question by reference to the interests of justice. That inquiry included whether the applicant adequately explained the delay and raised at least one reasonably arguable ground of appeal ([6], citing R v Tait). It did not treat the absence of a satisfactory explanation as automatically decisive. Brown JA expressly said that the deficiency was not necessarily fatal, but found that Manning's grounds had no prospect of success sufficient to justify an extension ([7]).
On delay, the Court acknowledged that a self-represented prisoner may face practical barriers in preparing court material and accessing computers. It accepted that computer access appeared to have been a particular problem in 2023, while Manning was preparing High Court material ([7]). But it compared those matters with the November 2020 sentence and the December 2020 deadline. Manning had prioritised the High Court proceeding, but the Court concluded that the matters he advanced did not adequately explain why he had delayed the present application for over four years ([7]).
The Court then examined each proposed ground against the sentencing record. The double-jeopardy argument was rejected because the November 2020 sentence concerned separate conduct against different complainants. Some offending took place during the same general period as offending dealt with in April 2018, but temporal overlap did not make the conduct the same ([12], [21]).
The totality argument also failed. The sentencing judge expressly recognised that totality “looms large” in light of the April 2018 sentence. Brown JA considered that the judge had moderated the sentence for the maintaining offence and imposed lesser concurrent sentences for the first indictment. In the Court's view, the judge had made a downward adjustment to account for totality, and the November 2020 sentences were appropriately cumulative because they related to separate, serious offending ([22]).
For the custody ground, the Court traced the periods set out in the pre-sentence custody material. It concluded that much of the time Manning identified had already been declared or taken into account in sentencing in April 2018. The Court also noted that neither counsel nor the Crown had argued at the November 2020 sentencing that further time needed to be declared after the sentencing judge raised the issue ([23]-[24]). Although the sentencing judge did not expressly state that the full 550 days had been taken into account, he referred to the custody certificate and the period to be served before parole eligibility. The Court considered it reasonable to infer that custody time overlapping with the earlier sentence had been considered ([25]).
The COVID-19 ground did not disclose error because the sentencing remarks showed that the judge had taken account of the restrictions and their effect on prison life ([26]). Nor did the sentence qualify as crushing. The Court recognised that the cumulative sentence produced a long period of imprisonment, but emphasised the seriousness and duration of the offending and the sentencing judge's moderation for totality ([27]-[28]). It also stated that a heavy sentence is not reduced simply because it may be crushing from the offender's perspective ([28], referring to R v E, AD).
Finally, the Court applied the manifest-excess approach cited from Hili v The Queen: a difference from sentences in other cases is not enough. The question is whether consideration of all relevant factors leads to the conclusion that there must have been a misapplication of principle, or that the sentence was unreasonable or plainly unjust ([20]). The Court found no such error. The delay and lack of an arguable ground meant the interests of justice did not support extending time ([30]).
This judgment applied, rather than purported to change, the principles identified in the sources it cited. For an extension of time, it relied on R v Tait for the interests-of-justice inquiry, including the explanation for delay and whether a reasonably arguable appeal ground exists ([6]). The judgment's practical point is that these considerations operate together. Here, the delay was not adequately explained, and the proposed grounds did not reveal arguable error ([7], [30]).
For manifest excess, the Court relied on Hili v The Queen. It stressed that a sentence does not become appealably excessive simply because it is different, even markedly different, from sentences in other cases. Intervention requires the Court to be driven to conclude there was a misapplication of principle, or that the sentence was unreasonable or plainly unjust ([20]). Manning's case did not meet that description on the Court's assessment of the sentencing remarks and circumstances ([30]).
The judgment also applied the approach to overlapping custody periods discussed in R v Campbell ([25]). The Court's analysis focused on the actual custody periods, what had already been declared or taken into account in 2018, and whether the sentencing remarks indicated that the sentencing judge had considered the custody material in 2020 ([23]-[25]).
Nothing in the judgment states that it overruled, displaced or reformulated these authorities. The decision's effect, as shown by its text, is an application of those cited principles to Manning's extension application, not a general change in the law.
At [6], Brown JA stated that the Court had to be satisfied that an extension was in the interests of justice, including by considering whether the applicant had adequately explained delay and raised a reasonably arguable ground. In plain English, a late application must be assessed both for the reason it is late and for whether there is a real legal issue worth considering on appeal.
At [7], Brown JA noted that a lack of satisfactory explanation is “not necessarily fatal”, but found that the proposed grounds did not justify an extension. This is important because it avoids treating delay as an automatic bar. The Court still examined the proposed grounds, but found them insufficient.
At [20], the Court explained that differences between sentences in different cases do not, by themselves, establish manifest excess. The Court must consider all relevant sentencing factors and be driven to the conclusion that a principle was misapplied or that the result was unreasonable or plainly unjust. In Manning's case, this meant the Court considered the particular offending, the earlier sentence, totality and the sentencing judge's reasoning rather than relying only on a comparison with other sentences.
At [22], the Court said the sentencing judge was “very conscious” of totality and had made an adjustment downwards. Put simply, the Court read the sentencing remarks as showing that the earlier sentence and combined criminality had been taken into account.
At [25], the Court said it could reasonably infer that the sentencing judge took account of the custody time, despite not expressly stating that he had done so. The inference was based on the judge's attention to the custody certificate, the time already served and parole eligibility.
At [30], Brown JA concluded that none of the specific alleged errors raised an arguable error. That conclusion, alongside the delay finding, led directly to refusal of the application.
The decision is most directly relevant to an application to extend time to seek leave to appeal a sentence where there has been a substantial delay and the applicant relies on practical obstacles, other legal proceedings or self-representation to explain it. The judgment shows that the Court may acknowledge genuine difficulties yet still ask whether they adequately account for the whole period of delay ([7]).
It is also relevant where a proposed appeal alleges that a later sentence duplicates an earlier one because the offending occurred during overlapping periods. Manning's case demonstrates the importance of distinguishing overlapping time from identical conduct: the Court rejected the double-jeopardy argument because the sentences concerned separate conduct against different complainants ([12], [21]).
The decision also concerns cases involving consecutive or cumulative sentences and a claim that totality was overlooked. The Court examined the sentencing remarks for evidence that the judge had recognised the aggregate effect and adjusted the sentence accordingly ([22], [27]).
The custody analysis may be relevant where periods of remand overlap with an earlier sentence or have already been declared or taken into account in a prior sentencing exercise. The Court's reasoning turned on the particular custody certificate and sentencing history, not on a general assumption that overlapping time is always dealt with in a particular way ([23]-[25]).
Finally, the decision concerns claims that a long cumulative term is “crushing”. The Court examined the seriousness and duration of the offending, the sentencing judge's moderation and the circumstances of the sentence as a whole ([27]-[28]). The judgment does not establish that any particular sentence length is or is not crushing in other circumstances.
The supplied judgment is dated 31 March 2026 and does not provide information about decisions made after it. On this material, it is not possible to describe how later courts have treated R v Manning.
The judgment itself refers to earlier authorities. It cites R v Tait on the extension-of-time inquiry ([6]), Hili v The Queen on manifest excess ([20]), R v Campbell on overlapping custody time ([25]), and R v E, AD on the use of the term “crushing” ([28]). It also notes that the proposition from R v E, AD had been cited with approval in R v Symss ([28], fn 6). Those references explain the sources the Court used; they do not establish any later treatment of Manning.
The judgment resolves the application before it, but its reasoning is tied closely to Manning's chronology, custody records and sentencing remarks. It does not prescribe a fixed threshold for how long a delay may be, or what combination of obstacles will amount to an adequate explanation. The Court's conclusion depended on the particular explanation and the fact that the applicant had prioritised the High Court application ([7], [30]).
The judgment also does not determine whether any alleged custody calculation error in the April 2018 sentence actually existed. Brown JA said that if there was such a miscalculation, it appeared to relate to the earlier sentence and could be raised by seeking to reopen that sentence ([24]). The application concerned the November 2020 sentence, and complaints about the 2018 sentence were not matters for that application ([29]).
Nor does the judgment determine how the sentence might have been assessed if the offences had all been sentenced together. It recounts submissions about hypothetical aggregate sentences, but decides only whether the November 2020 sentence disclosed arguable error and whether time should be extended ([14], [17], [22]).
The decision therefore offers a fact-specific application of the cited principles. Its central conclusions are that Manning did not adequately explain the delay, the proposed grounds were not reasonably arguable, and an extension was not in the interests of justice ([30]-[32]).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this information, have a qualified Australian lawyer check it.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Manning [2026] QCA 56
PARTIES: R / v / MANNING, Gregory Thomas / (applicant)
FILE NOS: CA No 19 of 2025 / DC No 305 of 2013 / DC No 306 of 2013
DIVISION: Court of Appeal
PROCEEDING: Application for Extension (Sentence)
ORIGINATING COURT: District Court at Cairns – Date of Sentence: 10 November 2020 (Smith DCJA)
DELIVERED ON: 31 March 2026
DELIVERED AT: Brisbane
HEARING DATE: 9 March 2026
JUDGES: Brown JA, Bradley JA, Crowley J
ORDER: The application for an extension of time is refused.
CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – OTHER MATTERS – where the applicant pleaded guilty to two aggravated counts of indecent treatment of a child under 16, under 12 years of age, one count of attempted aggravated indecent treatment of a child under 16, under 12 years of age and on a separate indictment, one count of maintaining an unlawful relationship with a child – where the applicant was sentenced to two years imprisonment for the first two counts and 18 months imprisonment for the third count on the first indictment, and four years and six months imprisonment under the second indictment, all to be served concurrently – where the sentences imposed were to be served cumulatively on the applicant’s existing term of imprisonment, being 10 years and six months for maintaining an unlawful relationship with a child – where the applicant makes an application for an extension of time within which to appeal against the sentence – where the application for an extension of time was brought more than four years after the expiry of the statutory time for the filing of a notice seeking leave to appeal the sentence – whether the discretion to grant the extension of time should be exercised – whether there is a satisfactory explanation for the delay in bringing the application – whether the proposed grounds of appeal identify reasonably arguable error – whether it is in the interests of justice to extend time / Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited / R v Campbell [2022] QCA 135, considered / R v E, AD (2005) 93 SASR 20; [2005] SASC 332, considered / R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited
COUNSEL: The applicant appeared on his own behalf / T L Corsbie for the respondent
SOLICITORS: The applicant appeared on his own behalf / Director of Public Prosecutions (Queensland) for the respondent
BROWN JA: The applicant applies for an extension of time for leave to appeal a sentence imposed on 10 November 2020 (November sentence) in respect of four counts on two indictments for which he was convicted following entering pleas of guilty in October and November 2020.
In respect of indictment 305 of 2013 (first indictment), the applicant was sentenced to two years imprisonment for two aggravated accounts of indecent treatment of a child under 16, under 12 years of age and eighteen months imprisonment for one count of an attempted aggravated indecent treatment. On indictment 306 of 2013 (second indictment) the applicant was sentenced to one count of maintaining an unlawful relationship with a child for a period of four years and six months. The sentences imposed in respect of the first indictment were to be served concurrently and were also to be served concurrently with the sentence imposed on the second indictment. The sentencing judge ordered that the sentences on the first and second indictment be served cumulatively on an existing term of imprisonment, namely sentences imposed on 24 April 2018 by the District Court (April 2018 sentence) of 10 and a half years for maintaining an unlawful relationship with a child and lesser periods for other sexual offences against the same child.
The sentencing judge provided for the parole eligibility date to be on 13 July 2027, which is a period of 25 months over and above the parole eligibility date fixed for the April 2018 sentence, which was 6 June 2025.
The applicant represented himself. He is well out of time to appeal the sentence imposed in November 2020, having only sought to appeal in January 2025. He seeks an order allowing an extension of time in which to seek leave to appeal. While he had originally filed an application for leave to adduce further evidence, he confirmed at the hearing he no longer pursued that application.
The applicant’s proposed grounds of appeal include that: the sentence was manifestly excessive in all the circumstances, including because his November 2020 sentence constitutes double jeopardy given the April 2018 sentence;the sentencing judge erred in failing to take into account the impacts of COVID-19 on the correctional system;the sentencing judge failed to take into account the totality principle;the sentence was a crushing one; and the sentencing judge failed to declare pre-sentence custody of 188 days.
In determining whether to grant an extension of time, the Court must be satisfied that it is in the interests of justice to grant such an extension, which includes considering whether the applicant has provided an adequate explanation for the delay and raised at least a reasonably arguable ground of appeal.1 In the present case, the applicant has established neither.
The November 2020 sentence
The facts upon which the applicant was sentenced were reduced to a statement of facts. In relation to the first indictment, complainant A was 11 years old at the time. He had been at the applicant’s house, playing with the applicant’s son. The applicant had started playing with the complainant’s penis over the top of his shorts and when the complainant told him to stop, the applicant told him to “shh”. In relation to the second count, complainant A was with the applicant, his wife and their son at a creek and they went swimming. The applicant touched him on the penis over his shorts and then put his hand up his shorts and touched his penis directly. In relation to the third count, on the following day while complainant A was urinating, the applicant asked him if he could look at his penis, to which the complainant A said no. The complainant’s mother spoke to the impact of the offending upon the complainant, which has had a prolonged effect.
As to the second indictment, the applicant met complainant B in a park when the applicant was in the park with his son. He walked complainant B home and introduced himself to B’s mother. After that, he became friends with B’s mother and would pick B up from school and look after him while B’s mother was working. He spent a lot of time with B, including speaking to him on the phone almost every day. Over a period when B was between 7 and 13 years old, the applicant committed a variety of sexual acts in isolated locations, which began with touching B on the penis and escalated to masturbating B, having oral sex and sodomising B as well as having B touch the applicant’s penis and suck the applicant’s penis. It was impossible to quantify the number of acts, but it took place regularly. B’s mother provided a victim impact statement as to the effect on B and the family, which appeared to be significant. No impact statement was given by B himself.
The applicant entered late pleas of guilty in October and November 2020. Complainant A and B had both been cross-examined in the pre-trial procedure. The second indictment had gone to trial in 2014 but there was a mistrial.
The applicant was 43 to 48 at the time of offending and 59 at the time of sentencing. The offending related back to between 2004 and 2010. There had been considerable delay in the resolution of his charges, including because the offences the subject of the April 2018 sentence were the subject of three trials and a mistrial between 2013 and 2018. There were three appeals commenced by the applicant, of which two led to re-trials. The applicant was tried a third time in April 2018 and found guilty of all offences, save for one count. His appeal against that conviction and the sentence imposed was not successful.
The offending in relation to the April 2018 offences occurred between August 2008 and December 2009 against a third complainant who was 11 and 12 at the time of offending. That was during the same period as the offending the subject of the maintaining charge in the second indictment. That raised issues of totality. The offending that occurred in respect of the first indictment occurred just after the end of the period of the maintaining the subject of the second indictment.
The applicant’s proposed grounds of appeal
In order to satisfy this Court that a sentence is manifestly excessive, it is not enough to establish that a sentence was different or even markedly different from sentences imposed in other matters. Appellate intervention will only be justified where, after considering all the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the Court “is driven to conclude that there must have been some misapplication of principle”, or that the sentence is “unreasonable or plainly unjust”.2
The applicant contends that the sentence is manifestly unjust because in effect he is being sentenced twice for the same conduct contrary to s 16 of the Criminal Code. That contention is misconceived. The applicant was sentenced for separate conduct against different complainants, albeit that some of the offending occurred during the same period as the offending for which he was sentenced in April 2018.
The applicant contends that the sentencing judge failed to take into account totality in passing the sentence. It is plain from the sentencing remarks that the sentencing judge was very conscious of the consideration of totality and took it into account in imposing a sentence of four and half years for the charge of maintaining and lesser sentences for the other offences on the first indictment which were to be served concurrently. Given it is separate but similar offending to the offending for which the applicant had already been sentenced in April 2018, it was appropriate for the November 2020 sentence to be served cumulatively with the sentence which was imposed in April 2018. It was plainly serious offending, which standing alone would have attracted a much greater sentence, as demonstrated by the sentence imposed in April 2018 for similar offending. The sentencing judge raised with the applicant’s counsel, who had submitted a sentencing range of 4 to 6 years was appropriate, that a sentence of twelve years for the entirety of the offending would have been too low. There is no error on behalf of the sentencing judge, who plainly made an adjustment downwards to the sentence, taking into account totality in the sentence imposed.
A pre-sentence custody certificate tendered at trial showed that the applicant had been remanded in custody for 550 days, of which various portions were shared with the period on remand which had been declared for the April 2018 sentence offences or taken into account by the sentencing judge in April 2018. A period of some 20 days3 in 2020 was time that had been served by the applicant for the April 2018 sentence offences. A period of 465 days had been declared in respect of the April 2018 sentence. A further period of 165 days which could not have been declared was also taken into account in the April 2018 sentence. It was evident that the applicant largely had the benefit of the time served in custody in respect of the offending on the first and second indictment taken into account when sentenced for the April 2018 sentence. Neither the applicant’s counsel nor the Crown submitted that any time was required to be declared after the matter was raised by the sentencing judge.
The application for an extension of time is refused.
BRADLEY JA: I agree with Brown JA.
CROWLEY J: I agree with Brown JA.
R v Tait [1999] 2 Qd R 667 at [5]. ↩
Hili v The Queen (2010) 242 CLR 520 at 538-539 [59]. ↩
20 October 2020 – 9 November 2020. ↩
Not 461 days as referred to in the sentencing remarks, as is evident from the pre-sentence custody certificate and criminal history. In a subsequent exchange with Counsel it is plain the declaration was with respect to 465 days. ↩
[2022] QCA 135 at [121]-[123]. ↩
[2005] SASC 332; (2005) 93 SASR 20 at 30 [38], cited with approval in R v Symss [2020] QCA 17 at [29]. ↩
R
Manning [2026] QCA 56
(2010) 242 CLR 520
(2005) 93 SASR 20
The application for an extension of time to appeal was refused.
In terms of explaining the cause of delay, the applicant has in his affidavit deposed to delays he experienced due to the difficulties presented by COVID-19 in terms of computer access and receiving mail and after that time, his limited access to computers and having to spend time on his application for special leave to the High Court in respect of his 2018 conviction and sentence, which interfered with his ability to file the present application for leave to appeal his sentence. It may be accepted that it is difficult for a self-represented party who is a prisoner to prepare material for Court and gain access to computers. It seems the latter was particularly an issue in 2023 when the applicant was trying to prepare material for the High Court. However, the sentence from which the applicant seeks to appeal was imposed in November 2020. Any application for leave to appeal his November 2020 sentence was required to be filed by 9 December 2020. The applicant sought special leave from the High Court on 14 June 2021. That was refused on 6 December 2024. While the applicant sought to prioritise the High Court application, the matters canvassed by him do not provide an adequate explanation for delaying the present application for over 4 years. The lack of a satisfactory explanation for delay is not necessarily fatal, but in the present case the proposed grounds of appeal have no prospect of success to justify the granting of the extension.
The applicant had a prior criminal history. In 1990, he was sentenced to three years imprisonment for 10 charges of sexual offending against children. At the time of the November 2020 sentence, the applicant was serving a ten and a half year sentence as a result of the April 2018 sentence. The imprisonment for ten and a half years was imposed with respect to a charge of maintaining an unlawful relationship with a child and was a serious violent offence, requiring him to serve 80 per cent of the sentence before being eligible for parole. The applicant was sentenced to lesser periods concurrently for 18 offences, which were particular instances of the maintaining charge. The applicant was acquitted of one offence.
In respect of the November 2020 sentence, the Crown submitted a sentence of five to seven years was appropriate for the most serious charge of maintaining on the second count and that it should be imposed cumulatively on the term imposed by the April 2018 sentence. As a standalone sentence, the Crown submitted the starting point would be greater than 10 years since it was broadly similar offending to the April 2018 sentence offending, but in the present case the period of maintaining extended over a much longer period of time. The Crown submitted that lesser sentences should be imposed on the first indictment, to be served concurrently with the second indictment. If the offending had been dealt with at the same time as the offending for the April 2018 sentence, the Crown submitted that his sentence would have been 14 to 15 years for maintaining to reflect his overall criminality, bearing in mind he would have to serve 80 per cent of that entire sentence. That was not the case however, for the November 2020 sentence. The Crown submitted that it was the plea of guilty and totality that moderated down the sentence for maintaining.
At the sentence, the submissions made on behalf of the applicant particularly focussed on the delay which had occurred in relation to the 2018 sentence offences, that his last offending was ten years prior to sentence and that the applicant had recently disclosed for the first time, just prior to sentence, that he had suffered considerable abuse as a child and had a traumatic upbringing. The applicant was said to have experienced some hardship in his sentence being served during a period where restrictions were imposed by the onset of COVID-19. The applicant had tried unsuccessfully to engage in courses for sexual offenders. In his favour, the applicant had been working in the tailor shop in prison and had the position of being an industry overseer.
The applicant had maintained employment, built a successful business and was married with a son prior to the April 2018 sentence. The marriage had broken up and his wife and son moved to another State. He had recently re-connected with his son who was studying at university. He had completed a certificate in training and assessment which he intends to pursue upon his release. Prior to being sentenced in April 2018, he had been involved in a search and rescue organisation and fundraising for a local football club. He had experienced bereavement while in custody.
The applicant’s counsel submitted that a sentence of twelve years was the appropriate sentence that would have been imposed if the first and second indictment had been dealt with at the same time as the April 2018 sentence offences and the parole eligibility date would have been extended by 15 months to September 2026, bearing in mind he would have had to serve 80 per cent of the twelve year sentence. The applicant’s counsel submitted that the sentencing range for the offending was between four to six years rather than five to seven years as submitted by the Crown, although the cases relied upon were for lesser offending than the applicant’s offending. The applicant submitted no time had to be declared for pre-sentence custody.
In sentencing the applicant, the sentencing judge took into account the nature of the offending, which was serious. His Honour had regard to the victim impact statements from the complainants’ mothers, exercising the required caution in relation to them given that they were not sworn, but accepting that there was clearly an effect on the complainants and their families as a result of the offending. He had regard to the applicant’s antecedents and the applicant’s terrible childhood, for which he had not received treatment. The sentencing judge noted that the applicant had a good work history and that he had worked while in prison.
The sentencing judge took account of the applicant’s late pleas of guilty. While he observed both complainants had been cross-examined, he considered there was value in the pleas, although it was limited. The sentencing judge noted that there had been considerable delay with the applicant exercising his legal rights. That was his right, but as his Honour observed, if the applicant had pleaded guilty earlier the matters could have been resolved earlier. The sentencing judge took into account that the applicant had a relevant criminal history and that as result of the offences for which he was sentenced in April 2018, totality “looms large”. The sentencing judge accepted that COVID-19 restrictions had made prison life more harsh for the applicant. His Honour took account of the applicant’s good work history. He noted the applicant would like to not re-offend but considered he needed treatment in light of his history and his offending.
The applicant submits that there is a period of 188 days of time spent in custody that was not dealt with by the sentencing judge. The period of four days in 2010 he has identified was part of the 465 days declared. The periods between May to August 2013 and June to August 2016 included in the applicant’s calculation were part of the 165 days not declared but taken into account in the April 2018 sentence. Thus the applicant already had the benefit of that time being taken into account in the context of the 2018 sentence. Although the applicant refers to a period of 23 days spent in pre-sentence custody, it is not apparent it was excluded. The complaint of the applicant is not made out and if there is any miscalculation as to the time served and taken into account it appears to pertain to the April 2018 sentence rather than the present sentence. If there was such a miscalculation it is open to the applicant to seek to reopen that sentence to have it corrected. I am not persuaded there is any arguable error in respect of the 2020 sentence or that any time was required to be declared that had not already been taken into account in the previous April 2018 sentence or that did not overlap with the April 2018 sentence imposed.
In any event, while the sentencing judge explicitly did not state that he took the period of 550 days spent in custody into account, his Honour was conscious of the time already served by the applicant for the April 2018 offences and expressly referred to the pre-sentence custody certificate and the amount of time the applicant had to serve before being eligible for parole. In those circumstances, it may be reasonably inferred that the sentencing judge took into account the 550 days, which was time in custody which overlapped with the time served in respect of the April 2018 offences (which had been declared or taken into account). The approach of the sentencing judge in this case is consistent with the observations of this Court where there is overlapping time in custody, as discussed in R v Campbell.5
It is plain from the sentencing remarks that the sentencing judge took into account COVID-19 restrictions experienced by the applicant when serving the April 2018 sentence, and there is no error in that regard.
As to the contention that the sentence is crushing, there is no doubt that the applicant has been subject to a long period of imprisonment, which has been lengthened by the sentence imposed in relation to the first and second indictments. However, the sentencing judge moderated the sentence significantly from the sentence that would have been imposed if the offence of maintaining on the second indictment had been considered alone, which was further exacerbated by the separate offending against a different complainant the subject of the first indictment. That moderated sentence was clearly to take into account totality considerations and the fact the sentence was to be served cumulatively on the 2018 sentence. There was no issue raised by the applicant’s counsel with the sentence imposed in respect of the first and second indictments being served cumulatively with the April 2018 sentence.
While the November 2020 sentence is a heavy one, particularly given it is being served cumulatively with the April 2018 sentence, it is not crushing. As was said in R v E, AD,6 in relation to the term ‘crushing’: “[t]he use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing.” In this case, the applicant engaged in serious offending in the case of complainant B over a long period of time and against complainant A shortly after. The April 2018 sentence related to offending against a young boy similar to that against complainant B. Both A and B were young boys. Both had been cross-examined, reducing the value of the plea of guilty. While the applicant was entitled to exercise his rights of appeal, he did not indicate until 2020 that he would plead guilty to the first and second indictment. The delay in this matter being resolved was not caused by any act of the Crown. Other than his employment in custody and the length of time since his previous offending, there was little in terms of rehabilitation to mitigate the sentence.
Insofar as the applicant makes complaints about the sentence imposed in April 2018, they are not matters to be considered upon this application or any proposed appeal from the November 2020 sentence.
None of the specific errors contended by the applicant raise an arguable error. The sentence was reached after the sentencing judge carefully weighed all of the competing factors while performing the required task of instinctive synthesis. The sentence does not in the circumstances suggest that there must have been some “misapplication of principle”, or that the sentence is “unreasonable or plainly unjust”, even taking into account the mitigating features of the applicant. The delay in seeking to appeal has been significant and was the result of the applicant prioritising his application to the High Court over the present matter. The applicant has not demonstrated that it is in the interests of justice to extend time for leave to appeal.
In the circumstances, the application for an extension of time to appeal should be refused.
The order of the court should be: