R v AAF - [2008] QCA 235

SUPREME COURT OF QUEENSLAND

CITATION:

R v AAF [2008] QCA 235

PARTIES:

R
v
AAF
(applicant)

FILE NO/S:

CA No 105 of 2008
DC No 1575 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

15 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

5 August 2008

JUDGES:

Keane and Holmes JJA and Dutney J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for extension of time refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where the applicant was convicted on his own plea of one count of maintaining an unlawful relationship of a sexual nature with a child under 16 years who was in his care – where the applicant was sentenced to seven years imprisonment with a parole eligibility date fixed after serving 28 months in custody – where the application for leave to appeal against sentence was filed approximately five and a half months after the time for appeal had expired – whether the circumstances are such that the time for the filing of the appeal should be extended

R v SAG (2004) 147 A Crim R 301; [2004] QCA 286, considered
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied

COUNSEL:

The applicant appeared on his own behalf
S G Bain for the respondent

SOLICITORS:

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

KEANE JA: On 17 October 2007 the applicant was convicted on his own plea of one count of maintaining an unlawful relationship of a sexual nature with a child under 16 years of age and in the course of that relationship unlawfully and indecently dealing with the child who was in his care. He was sentenced to seven years imprisonment with his parole eligibility date being fixed at 16 February 2010, ie after serving 28 months in custody.

On 30 April 2008 the applicant filed an application for an extension of time within which to apply for leave to appeal against his sentence on the ground that it was manifestly excessive. This application was filed approximately five and a half months after the time for appeal had expired.

The circumstances of the offence

At this point some brief reference to the circumstances of the case is necessary. The applicant pleaded guilty to maintaining a sexual relationship with a young girl who became his step-daughter. He was arraigned on the basis that the relationship was on foot between 25 October 1993 and 27 October 2000; and it was to this charge that he pleaded guilty.

It may be noted that, until July 1997, the maximum penalty for the offence of maintaining an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v AAF

Details

AGLC: R v AAF [2008] QCA 235
Case: [2008] QCA 235
Decision Date: 15 August 2008

CaseChat Overview and Summary

The applicant, who was convicted on his own plea of one count of maintaining an unlawful relationship of a sexual nature with a child under 16 years who was in his care, sought leave to appeal against his sentence. The applicant was sentenced to seven years imprisonment, with parole eligibility after serving 28 months in custody. The application for leave to appeal was filed approximately five and a half months after the time for appeal had expired. The central issue before the court was whether the applicant's circumstances warranted an extension of the time for filing the appeal.

The court considered the relevant statutory provisions and case law governing extensions of time for appeals. It was established that the applicant's application for leave to appeal was indeed filed well beyond the prescribed time limit. The court acknowledged the applicant's argument that he was not aware of his right to appeal until he received legal advice several months after sentencing, but noted that this did not automatically entitle him to an extension of time. The court examined the relevant factors, including whether the delay in filing the appeal application was reasonable and whether there was any prejudice to the respondent caused by the delay. Ultimately, the court found that the applicant had not demonstrated any exceptional circumstances that would justify an extension of time for filing the appeal.

Consequently, the court refused the applicant's application for leave to appeal against his sentence. The court determined that the applicant's delay in filing the appeal application was not justified, and that there was no sufficient reason to extend the time for filing the appeal. The court emphasised the importance of adhering to statutory time limits for appeals, and that such limits should not be extended lightly. The court's decision reinforces the principle that strict compliance with statutory deadlines is necessary to maintain the integrity of the appellate process.

Orders

Orders of the court

Application for extension of time refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v AAF [2008] QCA 235
PARTIES:	R v AAF (applicant)
FILE NO/S:	CA No 105 of 2008 DC No 1575 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	15 August 2008
DELIVERED AT:	Brisbane
HEARING DATE:	5 August 2008
JUDGES:	Keane and Holmes JJA and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for extension of time refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where the applicant was convicted on his own plea of one count of maintaining an unlawful relationship of a sexual nature with a child under 16 years who was in his care – where the applicant was sentenced to seven years imprisonment with a parole eligibility date fixed after serving 28 months in custody – where the application for leave to appeal against sentence was filed approximately five and a half months after the time for appeal had expired – whether the circumstances are such that the time for the filing of the appeal should be extended R v SAG (2004) 147 A Crim R 301; [2004] QCA 286, considered R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied
COUNSEL:	The applicant appeared on his own behalf S G Bain for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent