R v AE

[2001] QCA 136

[2001] QCA 136

COURT OF APPEAL

McPHERSON JA
WHITE J
DUTNEY J

CA No 19 of 2001
DC No 490 of 1999

THE QUEEN

v

AE  Applicant

BRISBANE

DATE 6 April 2001

JUDGMENT

DUTNEY J: The applicant was convicted on 24 April 2000 after a trial lasting four days of one count of maintaining a sexual relationship, four counts of indecent dealing, one count permitting indecent dealing and nine counts of unlawful carnal knowledge. On 5 May 2000 the applicant was sentenced to eight years' imprisonment and an order was made under section 19 of the Criminal Law Amendment Act 1945.

The complainant was 12 years old at the time of the commission of the offences and 14 years old at trial.  The applicant was 48 years old at the commencement of the period covered by the indictment and is 50 years old now.

On 29 January 2001 the applicant filed an application for an extension of time within which to appeal and a notice of appeal against conviction and an application for leave to appeal against sentence.  The grounds for the proposed appeal and application state only:

"(1)Conviction is unsafe and unsatisfactory and contrary to law.

(2)The sentence is manifestly excessive in all the circumstances."

The appeal and application for leave to appeal against sentence should have been filed by 2 June 2000.  They were thus filed almost seven months out of time.  The explanation offered for the delay as recorded on the application for the extension of time is:

"Understood that barrister (who is named) had filed notice of appeal, waited until August 2000 and found out no appeal had been lodged.  Contacted solicitor (who is also named) who visited me in prison and left appeal documents with me in November 2000.  As I could not understand the documents I did not fill them out.  I contacted Legal Aid on 18 January 2000."

The origin of the belief that a notice of appeal had been lodged was not revealed in the application, no affidavit or other evidence accompanied the application.  Orally we were told, again without support, that the applicant's then solicitor had told him an appeal had been lodged and would be heard in eight to 10 weeks.

I must say I find this surprising although not impossible.  It does not, however, explain adequately the delay between August and January.  Leaving aside for the moment the adequacy of the explanation for the delay, I consider both the proposed appeal and the proposed application for leave to appeal against sentence singularly unpromising.

I do not consider the sentence to be prima facie excessive when one considers the persistent nature of the offences, the age disparity between the applicant and the complainant, the lack of remorse shown by the applicant and the fact that the applicant had a prior, albeit old, previous conviction for unlawful carnal knowledge when he was 27 years of age.

The proposed appeal against conviction is equally unpromising.  There is nothing disclosed in the papers as to the basis upon which the appeal was intended to be brought and the best that the applicant could say in his oral submissions was that his solicitor or barrister would settle the grounds if the extension was given and that as far as he knew the basis of it was that he was persuaded not to give or call evidence at his trial, a decision he now regrets.

With the deficiencies to which I have already referred, the delay in commencing the appeal and application for extension of time is not properly explained.  Nonetheless I would not necessarily refuse the application on this ground alone if there was any substance in the substantive merits of the appeal or application.  As they have been explained to us there is not.  The application for an extension of time should, in my view, be refused.

McPHERSON JA:  I agree.

WHITE J:  I agree also.

McPHERSON JA:  The application for extension of time in which to appeal or apply for leave to appeal is dismissed.