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[2009] QCA 189
respondent. Application for an extension of time within which to apply for leave to appeal against sentence refused.
Wildey sought permission to apply late for leave to appeal his sentence. He said, among other things, that his sentence had been changed without notice and that a co-offender received a shorter sentence. The Court found that the sentence had not been changed in the way he claimed. Corrective Services had made a later error in calculating his release date, but that did not explain why he applied late or show that the sentence was excessive. The available material also explained the difference between his sentence and the co-offender’s by reference to their different criminal histories. The Court refused the extension, so it did not decide a substantive appeal against sentence.
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R v Wildey [2009] QCA 189 concerned an application for an extension of time, not a substantive appeal against sentence. Drew William Wildey asked the Queensland Court of Appeal for extra time to apply for leave to appeal. His proposed ground was that his sentence was manifestly excessive [6]. The application was filed on 18 May 2009, about nine and a half months after sentence was imposed on 1 August 2008 [6], [8].
1 cited instrument linked from this judgment.
Wildey had pleaded guilty to numerous offences, including receiving, unlawful use of motor vehicles, stealing, burglary-related offences, assaulting and obstructing a police officer, and drug and tainted-property offences [3]. For the offences on the indictment and ex-officio indictment, the sentencing judge imposed concurrent terms of two years’ imprisonment, declared that 471 days in pre-sentence custody had already been served under that sentence, and fixed the sentencing date as the parole release date [4]. The judge also activated the balance of a suspended sentence imposed in 2005, ordering Wildey to serve two years, and again fixed 1 August 2008 as the parole release date [5].
The explanation initially written in Wildey’s application was that he had been sentenced to three years, that his sentence details had been changed in his absence, and that the change had added a year [8]–[9]. Fraser JA explained that this did not accurately describe the sentencing orders. Wildey later relied instead on advice from Corrective Services officers that his full-time discharge date was 16 April 2009, rather than 31 July 2010 [9].
The respondent’s counsel conceded that the advice had been wrong. The apparent cause was an administrative calculation that incorrectly applied the 471 days’ pre-sentence custody to the activated suspended sentence. Fraser JA said there was no basis for doing that [9]. The error mattered to Wildey because he faced further charges alleging offences committed on 10 May 2009. If the earlier date he had been given were correct, he would not have been on parole then [10]. The Court nevertheless treated the release-date error separately from the grounds for appealing the sentence.
The application also raised disparity with a co-offender, Wildey’s voluntary admissions to police, and inadequate representation by his solicitor [12]–[16]. The Court refused the extension. The Chief Justice and Muir JA agreed with Fraser JA’s reasons and order [1]–[2], [20].
The Court applied two connected considerations to an extension application: whether there was a good reason for delay and whether an extension was in the interests of justice overall [7]. It referred to R v Tait [1999] 2 Qd R 667 at 668 for that approach. The nine-and-a-half-month delay made the explanation important, but the Court also considered whether the proposed appeal had sufficient substance [19].
The explanation did not persuade the Court. The original account of a sentence change in Wildey’s absence was mistaken: he had been in court, and the orders activating the suspended sentence were not ambiguous [9], [11]. The Corrective Services error was real, but it was made after sentence and concerned the later calculation of the full-time discharge date. It therefore did not explain the delay in seeking leave or affect whether the sentence was manifestly excessive [11]. Fraser JA acknowledged that the error might matter when sentencing Wildey for the further offences if he were convicted [11]. That observation did not determine anything about those charges.
The parity argument also lacked sufficient support. The Court restated the principle from Lowe v The Queen: a marked disparity between co-offenders may justify intervention where it creates a justifiable sense of grievance, even if the more severe sentence would otherwise be within the permissible range [12]. Postiglione v The Queen was cited for the need to assess due proportion by considering the offenders’ different circumstances and degrees of criminality [12]. Wildey did not provide information about the co-offender’s sentencing facts or her culpability. The criminal-history material before the Court indicated she had not previously been imprisoned, whereas Wildey had a significant history, including lengthy imprisonment and a previous breach of a suspended sentence order [13]. The Court considered that difference readily explained the sentences and found no material showing a real prospect of success on that ground [13].
The Court also rejected the contention that the sentencing judge had overlooked Wildey’s voluntary assistance to police. The sentencing material recorded that Wildey attended a police station voluntarily, asked to take part in a “clear up record of interview”, and made admissions about offences [15]. Although the judgment referred to AB v The Queen for the principle concerning confessions to offences unknown to authorities, Fraser JA read the sentencing judge’s reference to “co-operation with the police” as encompassing that factor [14]–[15].
Finally, the allegation of inadequate representation had no particulars or evidence of deficiencies in the solicitor’s conduct [16]. The Court also addressed the activated suspended sentence and the circumstances considered by the sentencing judge, including Wildey’s criminal history, the warning given when the suspended sentence was imposed, the timing and number of subsequent offences, his guilty pleas, and cooperation with police [17]. It noted that an immediate parole release date ameliorated the effect of activation, citing R v Norden [2009] QCA 42 at [14] [18]. Taken together, the delay explanation and the proposed grounds did not justify an extension [19]–[20].
The judgment does not purport to reform the law of extensions of time or sentencing parity. Its stated framework is an application of existing authority. For extensions, it adopts the considerations in R v Tait: whether a good reason accounts for the delay and whether granting extra time is in the interests of justice overall [7]. The Court then applies those considerations to the particular delay and proposed grounds.
On parity, the judgment draws on Lowe and Postiglione rather than announcing a new test. As described at [12], Lowe recognises that a marked disparity may warrant reducing the more severe sentence where it gives rise to a justifiable sense of grievance. Postiglione emphasises comparison of the offenders’ circumstances and degrees of criminality when assessing proportion. Wildey applies those propositions by examining the limited comparison material available, especially the different criminal histories [12]–[13].
The judgment also describes s 147(2) of the Penalties and Sentences Act 1992 (Qld) as requiring service of the whole period of suspended imprisonment unless the sentencing judge considers that doing so would be unjust [17]. The Court used this statutory description to explain why the activated sentence followed from the sentencing circumstances. It did not purport to give a comprehensive interpretation of the provision.
Accordingly, the “after” position in this decision is an application of cited rules to a particular record, not a replacement of those rules. The decision illustrates that an administrative error made after sentencing can be acknowledged as significant for a separate matter without supplying a reason for delay or demonstrating that the sentence itself was excessive [11]. It also illustrates that a parity claim depends on comparative information about the co-offenders, rather than the bare fact that one received a shorter sentence [12]–[13]. The judgment itself does not provide a broader account of subsequent doctrinal change.
At [7], Fraser JA says the Court asks whether “any good reason is shown to account for the delay” and whether an extension is “in the interests of justice overall”. In plain English, a late application is not assessed only by counting the days. The Court considers the explanation for lateness and the overall justice of allowing the application to proceed.
At [11], the judgment separates the discharge-date error from the sentence appeal. The error “occurred after the applicant was sentenced” and had “no bearing upon the question whether the sentence was manifestly excessive”. In plain English, a later administrative mistake may have consequences in another context, but it does not, without more, show that the original sentencing decision was excessive or explain why an appeal application was late.
At [12], the parity discussion explains that co-offender sentences are compared in light of different circumstances and criminality. The principle is not that co-offenders must receive identical sentences. A disparity may matter if it is marked and gives rise to a justifiable grievance, but the comparison must account for relevant differences between the offenders.
At [13], Fraser JA says the difference was “readily explicable” by Wildey’s “much worse criminal history”. In plain English, the Court considered that a shorter sentence for the co-offender did not establish unfair disparity where the available background information showed a significant difference in prior offending and imprisonment.
At [15], the Court concludes that the sentencing judge’s reference to “your co-operation with the police” was intended to include the fact that Wildey had volunteered information about offences. The judgment’s reasoning depends on the sentencing record, which described his voluntary attendance and admissions. It does not decide that every general reference to cooperation will necessarily cover every particular mitigating fact.
At [19], the Court brings the extension analysis together: there was no persuasive explanation for delay and insufficient substance in the proposed application. That is a refusal-stage conclusion. It is not the result of a full hearing of an appeal against sentence.
The decision is relevant to applications seeking extra time to apply for leave to appeal against sentence where there has been a substantial delay. Its practical analytical point is that the explanation must address the delay in the appeal process. A later event or administrative error may be important in its own setting but may not explain why the sentencing decision was not challenged sooner. In Wildey, the wrong discharge-date calculation occurred after sentence and did not bear on the proposed excessiveness ground [9]–[11].
The decision is also relevant where an applicant relies on disparity with a co-offender. A comparative claim requires enough information to evaluate the other offender’s circumstances and culpability, not simply the respective sentence lengths [12]–[13]. In this case the applicant had not provided the co-offender’s sentencing facts, and the Court considered criminal histories and prior imprisonment relevant to explaining the difference [13].
A further potentially relevant pattern is an allegation that the sentencing judge overlooked voluntary disclosure or cooperation. Wildey shows the Court checking the sentencing material against the judge’s remarks. Here, the particulars recorded voluntary attendance and admissions, and the sentencing judge expressly referred to cooperation [15]. The conclusion was grounded in those record details.
Finally, the decision addresses an appeal-related argument involving activation of a suspended sentence. The Court considered the statutory description of the activation requirement, the warning at the earlier sentencing, the timing of the new offences, and the offender’s history [17]. It also noted the immediate parole release date as an ameliorating feature [18]. These are features of the reasoning in this case, not a complete checklist for every suspended-sentence matter.
The judgment text supplied here contains no later decisions discussing R v Wildey. It therefore does not establish whether later courts followed, distinguished, applied, or questioned its reasoning. The case itself refers to earlier authorities: it applies R v Tait to the extension-of-time question, cites Lowe and Postiglione on parity, cites AB v The Queen concerning admissions to unknown offences, and cites R v Norden concerning the immediate parole release date [7], [12], [14], [18].
Those citations show the authorities Fraser JA relied on in 2009. They do not establish the later treatment of Wildey. Nor does Wildey’s own decision establish how any later court interpreted its discussion of administrative calculation errors, parity evidence, or s 147(2). Any claim about subsequent treatment would require later judgments beyond the text provided here.
For research use, it is important to distinguish the decision’s direct holding from its use of earlier authority. Its direct order was procedural: refusing an extension because the delay lacked a persuasive explanation and the proposed application lacked sufficient substance [19]–[20]. The court did not decide a substantive appeal or alter the principles stated in the cited cases.
The judgment does not determine the effect of the Corrective Services error on the separate charges alleging offending while on parole. Fraser JA said the mistake “might prove to be material” in sentencing for those offences if Wildey were convicted, but the charges were not decided in this proceeding [10]–[11]. The decision also does not determine whether Wildey was convicted of those offences or how any later sentencing court treated the error.
The Court did not decide the merits of a sentence appeal. It considered whether the proposed application had sufficient substance to justify extending time, but refused the extension [13], [19]–[20]. It therefore did not give a final appellate ruling on whether the sentences were manifestly excessive.
The judgment’s parity analysis is based on the materials available in this application. It notes that Wildey did not provide the co-offender’s sentencing facts or details of her culpability, and that the respondent tendered her criminal history without objection [13]. It does not address how the comparison might have been assessed on a fuller record.
Nor does the decision state a general rule about what degree of delay will require what explanation. It applies the Tait considerations to a delay of about nine and a half months and the particular explanation given [7]–[11]. The judgment does not quantify a threshold or set out a formula for balancing delay against proposed appeal merits.
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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 Wildey [2009] QCA 189
PARTIES: R v WILDEY, Drew William (applicant)
FILE NO/S: CA No 111 of 2009 / DC No 1061 of 2008 / DC No 2072 of 2008 / DC No 2009 of 2008 / DC No 2071 of 2008
DIVISION: Court of Appeal
PROCEEDING: Application for Extension (Sentence)
ORIGINATING COURT: District Court at Brisbane
DELIVERED ON: 14 July 2009
DELIVERED AT: Brisbane
HEARING DATE: 7 July 2009
JUDGES: Chief Justice, Muir and Fraser JJA / Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER: Application for an extension of time within which to apply for leave to appeal against sentence refused
CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where applicant sought extension of time within which to apply for leave to appeal against sentence – where application made following a significant delay – where the applicant argued that his sentence had been increased without him being given proper notice – where an administrative error was made in calculating the applicant’s full time discharge date – whether the applicant had provided a reasonable explanation for the delay – whether the proposed ground of appeal that the sentence is manifestly excessive has reasonable prospects of success – whether an extension of time in which to appeal against sentence should be granted / AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited / Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited / Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited / R v Norden [2009] QCA 42, cited / R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied
COUNSEL: The applicant appeared on his own behalf / D C Boyle for the respondent
SOLICITORS: The applicant appeared on his own behalf / Director of Public Prosecutions (Qld) for the respondent
[1] CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Fraser JA. I agree that the application should be refused for those reasons.
[2] MUIR JA: I agree with the reasons of Fraser JA and with the order he proposes.
[3] FRASER JA: On 1 August 2008 the applicant was convicted on his pleas of guilty and sentenced for numerous offences:
(a) Indictment 1061 of 1008: two counts of receiving with a circumstance of aggravation, 11 counts of unlawful use of a motor vehicle, two counts of stealing, one count of entering premises and stealing, one count of burglary by a break and one count of possession of things used in connection with unlawful entry with a circumstance of aggravation.
(b) Ex-officio indictment: a further count of entering premises and stealing.
(c) Summary offences: assaulting a police officer, obstructing a police officer, possession of a dangerous drug, and possession of tainted property.
[4] In respect of the offences charged in indictment 1061 of 2008 and the ex-officio indictment, convictions were recorded and the applicant was sentenced to concurrent terms of imprisonment of two years. The sentencing judge declared that the whole of the period of 471 days during which the applicant was held in pre-sentence custody was deemed to be imprisonment already served under that sentence. The date upon which the applicant was sentenced, 1 August 2008, was fixed as the applicant's parole release date. He was convicted but not further punished for the summary offences.
[5] All of those offences were committed during the three year operational period of a sentence of three years imprisonment, suspended after the applicant had served 12 months imprisonment, which was imposed in the District Court on 18 November 2005. That sentence was for offences of entering a dwelling with intent by break and in company, assault occasioning bodily harm whilst in company, and common assault. The sentencing judge activated the suspended sentence and ordered that the applicant serve the whole period of two years imprisonment. 1 August 2008 was again fixed as the applicant's parole release date.
[6] On 18 May 2009 the applicant filed an application for leave to appeal against sentence and an application for an extension of time within which to bring the proposed appeal. The ground of the proposed appeal is that the sentence is manifestly excessive.
[7] In considering an application for an extension of time the Court takes into account whether any good reason is shown to account for the delay and whether it is in the interests of justice overall to grant an extension: see R v Tait [1999] 2 Qd R 667 at 668.
[8] The application was filed about nine and a half months late. The explanation for the delay expressed in the application is that the applicant was not notified of a Court hearing to change his sentence details, that he was not in Court when his sentence was altered, and that the changed sentence meant that he was to have an extra year on his head sentence. The application asserted that the suggested change to the applicant’s sentence was made in his absence.
[9] That explanation reflected the mistaken assertion in the applicant's applications that he was sentenced to three years imprisonment. As I have mentioned, the applicant was in fact sentenced to two years imprisonment, the earlier suspended imprisonment of two years was activated, and a parole release date of 1 August 2008 was fixed. The applicant did not seek to support that explanation for his delay in his written or oral submissions. Rather, he argued that it was not until 10 May 2009 that he was informed by an officer of Corrective Services that his "full time release date" was in July 2010 rather than, as he contended he had earlier been informed by Corrective Services officers, 16 April 2009. The respondent’s counsel conceded that Corrective Services officers told the applicant the wrong full time discharge date. So much was suggested by a letter of 30 June 2009 from the Sentence Management Co-ordinator at the Arthur Gorrie Correctional Centre which the respondent supplied to the Court. It appears that the error arose because the person who initially calculated the applicant's full time discharge date wrongly assumed that the sentencing judge's declaration of 471 days pre-sentence custody applied in relation to the activated two years imprisonment of the suspended sentence. There was no basis for any such assumption. The correct full time discharge date was 31 July 2010.
[10] This has assumed particular significance for the applicant because he has been charged with further offences which would presumably constitute breaches of his parole. The further charges allege that he committed offences on 10 May 2009. Had his full time discharge date been 16 April 2009, as he was wrongly advised, he would not have been on parole at the time of the alleged further offences.
[11] The mistake for which the applicant contended might prove to be material in the exercise of the discretion in sentencing the applicant for those further offences if he is convicted of them, but it does not provide a persuasive explanation for his delay in applying for leave to appeal against sentence. The applicant was present in court when he was sentenced and there was no ambiguity in the sentencing judge’s orders activating the suspended two years imprisonment and ordering immediate release on parole. The error in the calculation of the applicant's full time discharge date occurred after the applicant was sentenced and that error has no bearing upon the question whether the sentence was manifestly excessive.
[12] The applicant argued that his sentence was excessive when it was compared with a sentence imposed upon a co-offender of 12 months with parole after six months. This argument invokes the so-called “parity principle”. In Lowe v The Queen (1984) 154 CLR 606 the High Court held that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a justifiable sense of grievance. If that arises, the severer sentence should be reduced even if it is otherwise an appropriate sentence within the permissible range of sentencing options. In Postiglione v The Queen (1997) 189 CLR 295 at 301-302, Dawson and Gaudron JJ pointed out that the parity principle requires due proportion between the sentences, which is to be determined after having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. Different criminal histories and custodial patterns may be such as to justify a real difference in the time each will serve in prison.
[13] The applicant has not provided any material which would justify the conclusion that this proposed ground of appeal has real prospects of success. The applicant did not provide any details of the facts taken into account by the judge who sentenced the applicant’s co-offender such as to enable this Court to compare her culpability with that of the applicant, and nor did the applicant provide any details of the co-offender's criminal history. Without objection by the applicant, the respondent tendered a copy of the co-offender’s criminal history. She had been convicted of a variety of offences, mostly offences of dishonesty and drug offences, between 1998 and 2006. Although wholly suspended terms of imprisonment (two months in 1999 and four months in 2004) were imposed on two occasions, she had not previously been imprisoned. That may be compared with the applicant’s very significant criminal history, which spanned the period from 1993 to 2005 and included a number of drug-related offences, offences of assault, and possession of tainted property. The applicant had previously been sentenced to lengthy periods of imprisonment and he had breached the terms of an order suspending a sentence of imprisonment on a previous occasion. The disparity between the co-offender’s sentence and the more severe sentence imposed upon the applicant is readily explicable by the applicant’s much worse criminal history. It is therefore not such as to give rise to a justifiable sense of grievance that might justify this Court in reviewing the applicant’s sentence.
[14] The applicant also argued that the sentencing judge was not informed that the applicant volunteered to police that he had committed the offences for which he was sentenced. This argument may invoke the principle that an offender who confesses to crimes not known to the authorities should generally be treated even more leniently than an offender who confesses to crimes known to the authorities: AB v The Queen (1999) 198 CLR 111; [1999] HCA 46.
[15] The argument is not meritorious. The particulars of the first count in the schedule of facts tendered at the sentencing hearing state that after police officers found sets of keys when they searched a room occupied by the applicant and his girlfriend on 4 October 2006, the applicant voluntarily attended at a police station, told police that he wished to participate in a "clear up record of interview with regard to a number of offences", and then participated in a record of interview. The particulars given of that first count and of most of the following counts then repeatedly refer to the applicant having participated in a record of interview with police on 4 October 2006 and having made admissions of the offences with which he was subsequently charged. In light of that material, the sentencing judge's remark that he had taken into account the applicant's pleas of guilty and "your co-operation with the police" was plainly intended to encompass the mitigating factor that the applicant had volunteered that he was guilty of offences previously unknown to police.
[16] The applicant also argued that he was not adequately represented by his solicitor at the sentence hearing, but that argument was not supported by any particulars or evidence of deficiencies in the solicitor’s conduct.
[17] The applicant did not argue that the sentence of two years for the offences charged in the indictments, with the benefit of the declaration of pre-sentence custody and immediate release on parole, was manifestly excessive. The applicant's real grievance is that his full time discharge date is 31 July 2010 rather than, as he was wrongly advised, 16 April 2009; but that followed inevitably from the activation of the suspended term of two years imprisonment. Section 147(2) of the Penalties and Sentences Act 1992 (Qld) obliged the sentencing judge to order the applicant to serve the whole period of suspended imprisonment unless the sentencing judge was of the opinion that it would be unjust to do so. The matters taken into account by his Honour amply demonstrate the difficulty in any contention that the sentencing judge erred in considering that it was not unjust to activate the whole of the suspended sentence: the applicant was a mature man, 31 years of age, when he committed his numerous offences; he had a significant criminal history (which, it should be noted, included both offences for which the applicant had been sentenced to substantial terms of imprisonment and a breach by the applicant of the terms of an order suspending a sentence of imprisonment on a previous occasion); the offence dealt with in the Brisbane District Court on 18 November 2005 for which the applicant was given the suspended sentence was described by that sentencing judge as "misguided vigilanteism"; that judge made it clear to the applicant that if he committed an offence punishable by imprisonment during the operational period of the suspended sentence the balance of the suspended sentence might be activated; and all of the applicant's numerous, subsequent offences were committed during the operational period of that suspended sentence. The sentencing judge also took into account the applicant's pleas of guilty and co-operation with the police, as well as the fact that the applicant committed the offences to support a drug addiction which, as his Honour observed, was not an excuse for committing the offences.
[18] It must also be borne in mind that the sentencing judge ameliorated the effect of the order activating the suspended imprisonment by fixing an immediate parole release date: see R v Norden [2009] QCA 42 at [14].
[19] The applicant does not have a persuasive explanation for his delay in applying for leave to appeal against sentence and there is not sufficient substance in that proposed application to justify the grant of the extension he requires.
[20] I would refuse the application for an extension of time within which to apply for leave to appeal against sentence.
R
Wildey [2009] QCA 189
(1999) 198 CLR 111
(1984) 154 CLR 606
(1997) 189 CLR 295
Application for an extension of time within which to apply for leave to appeal against sentence refused.