R v Marriner [2006] QCA 32

Court of Appeal (Qld)|2007-05-18|Before: Jersey CJ

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES - application to re-open sentence - whether right of appeal conferred by legislation - whether order appealed against capable of categorisation as a "sentence" as defined in s 668D of the Criminal Code - whether order capable of being regarded as "in consequence of" the applicant's conviction at trial - whether a discernable relationship exists between the order appealed against and the conviction - s 188 Penalties and Sentences Act 1992 (Qld) - whether avenue for appeal exists under s 118 District Court of Queensland Act 1967 (Qld)

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - where application for leave to appeal abandoned - principles to be applied in setting aside abandonment and reinstating application - whether circumstances sufficient to meet "interests of justice" requirement in of the (Qld) - whether appeal, if reinstated, would have any prospects of success - whether sentence manifestly excessive

Criminal Practice Rules 1999 (Qld), r 69(4)

R v Amery [1999] QCA 236; CA No 119 of 1999, 18 June 1999, considered

R v Blow [1963] QWN 1, distinguished

R v Cassar, ex p Attorney-General [2001] QCA 300; [2002] 1 Qd R 386, distinguished

R v Smith [1997] QCA 109; CA No 566 of 1996, 9 May 1997, considered

R v Green [1989] 1 Qd R 408, cited

R v Harman [1959] 2 QB 134, cited

R v Mackenzie [2000] QCA 324; [2002] 1 Qd R 410, cited

R v Shambrook [1997] QCA 356: CA No 359 of 1996, 21 October 1997, considered

R v Tabe [1983] 2 Qd R 60, cited

Stewart v The King [1921] HCA 17; (1921) 29 CLR 234, cited

Director of Public Prosecutions (Queensland) for the respondent

[1] de JERSEY CJ: I have had the advantage of reading the reasons for judgment of McPherson JA, with which I agree. The applicant's purported appeal against Judge Wylie's dismissal, on 30 June 2005, of the applicant's application to reopen the sentences imposed, on 3 October 2003, by Judge Boyce, should be dismissed; and the applicant's application pursuant to Rule 69(4) of the Criminal Practice Rules 1999 should be refused.

[2] McPHERSON JA: The applicant was tried before his Honour Judge Boyce and a jury in the District Court and on 3 October 2003 convicted on an indictment charging four counts of false pretences, three of assault occasioning bodily harm, one of misappropriation, one of indecent assault, one of attempted extortion, and one of fraud. For these offences he was sentenced by Judge Boyce to imprisonment for two years but with a cumulative sentence of imprisonment for three years in respect of the charge of attempted extortion.

[3] The applicant appealed against his conviction on all counts. His appeal was dismissed by the Court of Appeal on 28 May 2004. He also applied for leave to appeal against the sentences imposed; but, at or before the hearing on 26 March 2004 he filed a notice of abandonment of that application for leave to appeal, and, through his counsel at the hearing, confirmed having done so.

[4] On 29 June 2005, the applicant applied in the District Court under s 188(1)(c) of the Penalties and Sentences Act 1992 for an order that the court re-open the sentence imposed in October 2003 in respect of the conviction of attempted extortion. Judge Boyce having in the meantime retired from the Bench, the application came before his Honour Judge Wylie, who on 30 June 2005 dismissed it. The applicant now seeks to appeal to this Court against that order of dismissal.

[5] In my opinion, no right of appeal against that order is conferred by the Criminal Code or by other legislation investing this Court with jurisdiction to entertain appeals in criminal matters. In Queensland, appeals against conviction of criminal offences or against sentence were unknown to law until 1913, when, adopting English legislation of 1907, the Criminal Code was amended to create the Court of Criminal Appeal and by s 668D(1) of the Code to authorise appeals to it in specified cases. In entertaining such appeals the Court of Criminal Appeal was held to be not a new court, but merely the Supreme Court acting with the supplementary jurisdiction conferred on it by that part of the Code. See Stewart v The King [1921] HCA 17; (1921) 29 CLR 234, 240. Upon the constitution of the Court of Appeal in 1991, the existing jurisdiction of the Court of Criminal Appeal was invested in the Court of Appeal by s 29 of the Supreme Court of Queensland Act 1991. See also s 5 of that Act.

[6] The jurisdiction of this Court to hear appeals in criminal matters is therefore entirely statutory in origin. Section 668D(1) of the Code confers on a person convicted on indictment (as the applicant was here) a right of appeal to this Court, under s 668D(1)(a) or (b) against conviction, and under para (c) "with the leave of the court against the sentence passed on the person's conviction". The word sentence is defined in s 668(1) to include:

"any order made by the court of trial on conviction of a person with reference to the person's person or property whether or not the person is adversely affected thereby and whether or not the order is made instead of passing sentence."

In R v Blow [1963] QWN 1, the Court of Criminal Appeal, following R v Harman [1959] 2 QB 134, held the expression "on conviction" does not mean "at the time of conviction", but "in consequence of conviction".

[7] The immediate question here therefore is whether the order of Judge Wylie dismissing the applicant's application to re-open the sentence imposed by Judge Boyce can be said to be a "sentence" as defined in s 668(1) as being an order in consequence of conviction made by the court of trial with reference to the person or property of the person convicted. This calls for a consideration of the power to re-open a sentence under which his Honour was asked to act in re-opening the sentence.

[8] The power of re-opening a sentence is conferred by s 188 of the Penalties and Sentences Act 1992 as follows:

"(1) If a court has in, or in connection with, a criminal proceeding, including a proceeding on appeal -

(a) imposed a sentence that is not in accordance with the law; or

(b) failed to impose a sentence that the court legally should have imposed; or

(c) imposed a sentence decided on a clear factual error of substance;

the court, whether or not differently constituted, may reopen the proceeding."

In the present case, the applicant before Wylie DCJ sought to invoke para (c) of s 188(1) as supporting his application to re-open the sentence imposed by Boyce DCJ. In R v Cassar, ex p Attorney-General [2001] QCA 300; [2002] 1 Qd R 386, 390, this Court was not disposed to give a wide interpretation to that provision, saying:

"Sentences are reviewed through the appeal process, not by means of this provision, which is in the nature of a 'slip rule', to be used in the exceptional, limited circumstances to which in precise terms it refers."

[9] In my opinion the present appeal is not one that it was competent for the applicant to institute. It will be seen that s 188(1) refers expressly to "a proceeding on appeal", but what is there envisaged is a proceeding to re-open a sentence imposed by the Court of Appeal itself, which that Court is asked to re-open, as happened in the case of R v MacKenzie [2002] 1 Qd R 410. It was a decision referred to in R v Cassar [2001] QCA 300; [2002] 1 Qd R 386, 389, where this Court said that, in substituting another sentence for that imposed at trial, the Court of Appeal "was effectively the original sentencing court" and its sentence was the one which it had to be shown was based on "a clear factual error of substance at the time the fresh sentence was imposed". That is not the case here, where this Court is now asked by the applicant to allow an appeal against the decision of Wylie DCJ refusing under s 188 of the Act to re-open and set aside or vary the sentence imposed by Boyce DCJ. Whether an appeal lies to this Court against such a refusal depends on the terms and operation of s 668D(1) of the Code.

[10] I do not consider that the refusal to re-open and set aside the applicant's sentence can properly be described as a "sentence" or a sentencing order within the defined meaning in s 668(1) of the Code. It is not capable of being regarded as an order "in consequence of" the applicant's conviction at trial. It may be accepted that the meaning of the words "in consequence of" adopted in R v Blow is wide; but in my view something more is required than the existence of a mere sequence in time between the sentence imposed on conviction and the order that is subject to challenge. It is plainly not every order following chronologically after conviction that amounts to a "sentence" on conviction within the meaning of the definition in s 668(1). There must be a relationship of some discernible kind between the two in order to make it an order or "sentence" in the defined sense. In R v Blow, such a relationship was found to subsist in the circumstance that the recognizance suspending the sentence has been breached by later committing another offence, which re-activated the original sentence or sentencing order. As Gibbs J said there, the order committing the offender to prison to undergo the whole or part of the suspended sentence was made to punish him "not for the breach of his recognizance ... but for the offence for which the suspended sentence was imposed". It was, his Honour considered, a sentence for that offence that was in effect "imposed in two stages instead of one".

[11] Nothing resembling that state of affairs can be said of the decision refusing the application by the applicant to re-open the sentence in this instance. If the order dismissing that application was a consequence of anything, it was the result of the applicant's own unsuccessful attempt to re-open the sentence under s 188 of the Act instead of appealing to this Court under s 668D of the Code against the sentence imposed on conviction. It was and is not an order that is susceptible of appeal in terms of the jurisdiction conferred on this Court in criminal matters. I say nothing of the case in which an application to re-open a sentence succeeds, with a consequential replacement or variation in the original sentence. Such a sentence as varied may be open to appeal under s 668D(1) of the Code, but we are not here concerned with such a case.

[12] I have considered whether an avenue for appealing to this Court against Judge Wylie's order might exist under s 118(3) of the District Court of Queensland Act 1967. However, s 118(3) is part of s 118, as to which s 118(1)(a) provides that the section does not apply to an appeal from a judgment of the District Court "in the exercise of its jurisdiction under part 4" of that Act. Part 4 begins by saying in s 60 that the District Court "has jurisdiction to inquire of, hear, and determine all indictable offences". In conducting the trial of the applicant and in sentencing him on conviction, Judge Boyce was acting in the exercise of the criminal jurisdiction conferred by that part. An appeal against it is therefore outside s 118 including s 118(3).

[13] In my opinion the applicant's appeal or application for leave to appeal against the order refusing his application under s 188 of the Penalties and Sentences Act to re-open the sentence imposed on 3 October 2003 is incompetent and should be dismissed.

[14] This leaves for consideration the applicant's attempt to resurrect the application for leave to appeal against the sentence imposed by Judge Boyce on 3 October 2003. As I have said, that application for leave was abandoned by the applicant, and its abandonment was confirmed by his counsel on the occasion when the appeal against conviction came before the Court of Appeal for hearing on 26 March 2004. Nothing further was heard or done about it until 3 November 2005, when the applicant by his solicitors filed an application to set aside his earlier abandonment of it and sought an order reinstating the application for leave to appeal against the sentence imposed.

[15] The matter is governed by r 69 of the Criminal Practice Rules 1999. Rule 69(2) provides that at any time after filing an application for leave to appeal, the applicant may abandon it by giving the Registrar a notice of its abandonment, whereupon the application for leave is under r 69(3) "taken to be refused by the court". Rule 69(4) then adds:

"(4) However, if the court considers it necessary in the interests of justice, the court may set aside the abandonment and reinstate the application."

[16] Before the commencement of the 1999 Rules, the withdrawal of a notice of abandonment of an appeal was regulated by O IX, r 22 of the Criminal Practice Rules of 1900 (as amended) which did not contain any provision corresponding with the final paragraph (4) of the current r 69. The Rule in its previous form was considered and applied in R v Tabe [1983] 2 Qd R 60, and again in R v Green [1989] 1 Qd R 408, in both of which the authorities from England and Australia on the old rule were considered. While those decisions may still provide some guidance in exercising the jurisdiction to reinstate an abandoned appeal, the question now to be determined is whether, in terms of r 69(4), the court "considers it necessary in the interests of justice" to set aside the abandonment and reinstate the application.

[17] In deciding whether this criterion is satisfied, I begin by inquiring why the application for leave to appeal was abandoned in the first place. In an affidavit sworn on 3 November 2005, the applicant states that, after his conviction and sentencing, he left it in the hands of his trial barrister to draw the notice of appeal. It was duly done and is dated 22 October 2003 and, while containing a large number of grounds of appeal against conviction, it says no more about sentence than it is "manifestly excessive".

[18] The applicant says in his affidavit that, before the appeal was argued on 26 March 2004, the only contact he received from the Legal Aid Office was a telephone call early in 2004. He says he cannot recall the name of the person to whom he spoke, but can recall being advised that "only the appeal against conviction should be proceeded with"; and that, if he continued with his appeal against sentence, there was "a real risk" the sentence could be increased. He says he was not advised that he would be given the opportunity of withdrawing the sentence appeal prior to any such increase in sentence. He cannot now remember the specific instruction he gave, but his recollection is that he told "them" to do "whatever you reckon".

[19] Objectively, I find this account of events most improbable and not one that in the circumstances is capable of being accepted. For a former police officer, as he is, it is unlikely that the applicant would have made no note at all of the name or the telephone number of the person from Legal Aid who called him in early 2004. It seems unlikely that he would know that the appeal (in which as to conviction, he was vitally interested) was being heard on 26 March 2004 unless he made a note of that date. It also seems unlikely that anyone at Legal Aid would have told him that there was a "real risk" that the sentence could be increased, without also advising that he would be able to withdraw his appeal against sentence if such an increase was threatened. On the other hand, it is possible as a matter of fact that, as regards the sentencing appeal, his instructions to Legal Aid were, in effect, to do what they or counsel considered was appropriate or "whatever you reckon". Counsel confirmed to the Court that the appeal against sentence had been abandoned, which suggests that a written notice of abandonment had been filed. One would expect it to have been signed by the applicant personally; but, whether or not it was, we were not provided with a copy of it at the hearing of this application.

[20] The applicant also claims that the first he heard about his losing that appeal was when he read a newspaper article about it at some time later. Again, it seems quite improbable that he was not, in accordance with the practice, provided with a copy of the reasons delivered by the Court of Appeal. He says he did not see the judge's sentencing remarks until he became "embroiled" in Family Court proceedings against his ex-wife, by which stage "it was late in 2004". He spoke to another prisoner about his predicament, and discussed with him an application under s 188 of the Penalties and Sentences Act 1992, which was the one later dismissed by Wylie DCJ on 30 June 2005. After that had happened, he received legal advice that he had no prospects of success in an appeal against that decision not to re-open the sentence, and only then did he turn his attention to reinstating the original appeal against sentence.

[21] As I have said, in essential respects I am not prepared to accept the evidence given by the applicant in his affidavit, or his explanation for abandoning the application for leave to appeal against sentence. Too many details about it are left unstated or unresolved, and the delay between the Court of Appeal judgment in May 2004 and the present date in February 2006 is not satisfactorily accounted for. In reaching that conclusion I am also influenced by the nature of the offences of which he was convicted after a lengthy trial before a jury. They show that over a period of some 18 years the applicant engaged in deceiving his own wife, his young sister-in-law, his brother-in-law, the latter's wife and others, as well as members of the church community to which he belonged, and the police force of which he was a member. On the evidence before the Court, I do not under r 69(4) consider it "necessary in the interests of justice" to set aside the abandonment and reinstate the application, instituted as long ago as 22 October 2003, for leave to appeal against sentence, which was deliberately abandoned in March 2004.

[22] In addition, it is my view that the appeal against sentence would not succeed even if it were to be reinstated. On the hearing of the application, Mr Smith of counsel for the applicant acknowledged that it was necessary for him to show that a reinstated sentence appeal would have prospects of success. The effective sentence was, in all, imprisonment for five years, made up of three years for the charge of attempted extortion (count 6) cumulative on a total of two years imprisonment for the other 13 or 14 charges of which the applicant was convicted.

[23] Mr Smith accepted that the sentence of two years in duration imposed for the offences other than that in count 6 was not excessive. It is the sentence of three years in respect of the offence in count 6 that he submits is too long. At the same time counsel also conceded that the overall sentence of five years was not excessive. The complaint therefore appears to be directed not at the duration of the total sentence of five years imposed on all the offences of which the applicant was convicted, but at the manner in which the learned judge allocated or appropriated that sentence or period of imprisonment among those offences.

[24] Such a submission is a little surprising in the present context. It is open to a judge in sentencing to impose a substantial sentence for any one only of a number of distinct but repeated or related offences and to impose only nominal or shorter concurrent sentences on each of the other such offences in the sequence. This is the course commonly followed in order to reflect the "totality" of the whole criminal behaviour, without descending to the detail of imposing substantive sentences on each of the counts and then accumulating them. Either course is ordinarily legitimate, provided that none of the terms so imposed exceeds the statutory maximum in respect of the offence in question, and that the effective sentence for the overall criminality of the offending is ultimately appropriate.

[25] It is evident from his sentencing remarks that his Honour Judge Boyce regarded the offence in count 6 as the most serious of those committed. He also appears to have used it to reflect the totality of the applicant's criminal behaviour overall. Count 6 was the charge of having, contrary to s 416 of the Code, between January and July 1990 accused his brother-in-law P of having had unlawful carnal knowledge of a girl under 16 years, with intent to obtain a sum of money. The girl later became his wife, and the threat or one of them was made or repeated shortly before their wedding day. The offence of unlawful carnal knowledge of a child under 16 years of age is an offence under s 215 of the Code in Ch 22. As such, s 416(2) makes an accusation, or the threat of an accusation, of that offence, a crime punishable by imprisonment for 14 years.

[26] In the present case the evidence at trial was that the applicant had attempted to obtain a sum of $5,000 from P. Because in the end, he did not succeed in obtaining the money, Mr Smith submitted that the maximum was limited by s 536(1) to imprisonment for seven years. For present purposes I am prepared to accept that this is so, even though the offence under s 416(1)(a) seems to me to be constituted not by success in extorting or gaining the property, money or benefit in question, but by making the accusation or threat with intent to extort or gain property or money from anyone. The heading to s 416 in the Code is, it may be noticed, Attempts at extortion by threats, which suggests that the offence is complete once an accusation or threat itself is made, without the need for any further act on the part of the offender by in fact receiving the benefit. If it were otherwise, the offence could be prosecuted only if it was successful.

[27] However, on the assumption now being made here, the sentence of three years imposed on the applicant in respect of count 6 was in fact less than half of the assumed maximum duration of seven years contemplated in s 416(2). It is not necessary to refer to the detail of the appellant's career of offending, which is set out in the reasons of the Court of Appeal in R v M [2004] QCA 184. An accusation of having committed unlawful carnal knowledge might to some youths seem almost as much a matter of pride as of shame; but the complainant P and his girlfriend and other members of this close family circle and friends were members of the same church, who lived a somewhat closeted existence and had what might be regarded by some as a severe view of sexual encounters outside marriage. The applicant claimed there was a police file concerning their activities in this regard and that, in addition to an earlier demand of $50, he needed to be paid $5,000 to ensure that the file was permanently "lost" to the police. At the time, the applicant was aware of the fact that P had recently received a substantial sum of compensation for injuries sustained in a motor vehicle accident caused by a drunken driver, and so was known to be in a position to pay. It was a particularly heartless offence perpetrated by a much older man on a young relative, who looked up to him. The personal impact on P and his girlfriend, now his wife, can be gathered both from their evidence at the trial and from P's victim impact statement.

[28] Of the comparable sentences to which we were referred by applicant's counsel the only ones that concerned extortion or attempt to extort under s 416 of the Code were R v Shambrook [1997] QCA 356, and R v Amery [1999] QCA 236. The others including R v Smith [1997] QCA 109 were convictions for extortion by public officers under s 88 of the Code, which, although it uses the word "extortion", is directed to the very different offence of official corruption by taking a reward, or what is colloquially called a "kick-back", for performing a duty by an officer in the public service. Unlike the offence created by s 416, which is commonly described as blackmail, the offence under s 88 involves no element of attempting to gain a benefit by making accusations or uttering threats. As his Honour said at sentencing:

"Extortion and attempted extortion are amongst the most vicious and despicable crimes in the criminal calendar. The courts have always acted on the basis that the need for deterrence is of great importance in this type of case. Victims are very reluctant to come forward. These offences are difficult to detect. The fact that you are a serving police officer is a very serious circumstance of aggravation."

What is more, the victims in this case were young and vulnerable people, relatives of the applicant, whom they trusted and of whom they stood in awe because of his status and authority as a police officer.

[29] In R v Shambrook [1997] QCA 356, the applicant was a private investigator and former policeman who, for a monetary payment from a business man, was engaged to make threats to force a judgment creditor in the magistrates court to abandon his efforts to enforce the debt by process of execution. There were six counts under s 416, with one of wilful damage involving the slashing of car tyres as a terror tactic; but, although there were more charges than there were here under s 416, they each involved uttering similar threats on different occasions to the same complainant, who had done work for a business man who was trying to avoid paying for it. The sentence on the extortion counts was three years imprisonment, with the wilful damage sentence being concurrent. This Court dismissed an application for leave to appeal. Despite allowing an appeal against conviction on one of the extortion counts, Davies JA said that the effective sentence "should not be reduced in any way", and that the comparative sentences cited to the Court showed that the sentence imposed in that instance was "well within the range of a sound discretionary judgment".

[30] The six (or five) counts there were part of a single course of conduct aimed at making the same threat to achieve its purpose. Here there were threats made against only one young individual, although involving his girl friend. R v Amery [1999] QCA 236 was a case of a prostitute who demanded $2,000 from a 60 year old customer, a cane farmer, using threats to expose him as a paedophile and saying that she would burn his sugar cane. The sentence in that instance was only 12 months; but Davies JA said it was an "extremely serious" offence that warranted imprisonment "of at least the term imposed", while Thomas JA, who thought it "an extremely nasty case of extortion", said that a higher sentence would have been justifiable.

[31] In my view neither of these cases, nor any of the others cited, which were simply instances of police corruption, demonstrate that the applicant would have any prospect of success if his application to appeal were to be reinstated. In sentencing for count 6, his Honour said of P and his girlfriend then aged about 15:

"They were young and vulnerable. You accused them of having engaged in underage sexual activity. The charge was false. That is immaterial. You indicated that the young man might go to gaol and the young girl end up in a girls' home ... You persuaded them to sign a false confession."

It seems highly unlikely that, if the application for leave to appeal succeeded, a Court would disturb the sentence or sentences of three years on these counts. Speaking more generally about the applicant's criminal activities disclosed at this trial, his Honour described them as a web of lies, deceit and manipulation, which caused much distress, anguish and torment to these people. No one can doubt the accuracy of that description.

[32] In my view, it is not necessary in the interests of justice to set aside the applicant's abandoned notice of appeal or to reinstate his application for leave to appeal against his sentence.

[33] WILLIAMS JA: I have had the advantage of reading the reasons for judgment of McPherson JA and I agree with all he has said therein.

[34] Given the totality of the applicant's offending, including the lengthy period of time over which the offences were committed, an effective sentence of five years imprisonment is clearly not manifestly excessive. As the applicant would have no prospects of success on the hearing of an appeal against the sentence imposed it is not in the interests of justice that his earlier abandonment of the application for leave to appeal against sentence should be set aside.

[35] I agree with the orders proposed by McPherson JA.

Court of Queensland Act 1991

Court of Queensland Act 1967

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