R v Ball

[2006] QCA 186

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ball [2006] QCA 186

PARTIES:

R
v
BALL, Matthew James
(applicant)

FILE NO/S:

CA No 79 of 2006
DC No 879 of 2004
DC No 1788 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

1 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2006

JUDGES:

de Jersey CJ, Holmes JA & Helman J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

1.  The Indictment No 1788/04 is amended accordingly
2.  Application refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant pleaded guilty to one count of maintaining an unlawful sexual relationship with a female child under 16 years of age, in the course of which he had unlawful carnal knowledge with her – where the applicant was sentenced to seven years imprisonment with a recommendation for post-prison community based release after two years and nine months – where the application was filed six months out of time - whether an appeal against conviction or sentence would have any prospect of success – whether the application for extension of time should be granted

The following cases were cited:
R v B [1995] QCA 636; CA No 328 of 1995, 23 October 1995
R v B [1997] QCA 213; CA No 58 of 1997, 18 June 1997
R v BAO [2004] QCA 445; CA No 314 of 2004, 22 November 2004
R v  SAG [2004] QCA 286; CA No 55 of 2004, 6 August 2004

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

THE CHIEF JUSTICE:  On the 1st of September last year the applicant pleaded guilty to the offence of maintaining an unlawful sexual relationship with a female child under 16 years of age, in the course of which he had unlawful carnal knowledge with her.  The charge alleged his maintenance of that relationship between the 1st of July 2001 and the 15th of April 2003.  He also pleaded guilty to the offence of breaking and entering premises and committing wilful damage.

He was sentenced to seven years imprisonment with a recommendation for post prison community based released after two years and nine months in respect of the maintaining, with a concurrent term of six months imprisonment for the other offence. 

At the time he committed the offence of maintaining the maximum penalty for the offence to which he pleaded guilty was life imprisonment.  The applicant filed an application for extension of time within which to apply for leave to appeal against sentence on the 30th of March 2006, which was about six months out of time.  The explanation included on the form of application is:

"I was not made aware of my right to appeal.  I am illiterate and have great difficulty in understanding any documents that were sent to me."

The applicant has developed that before us today to the extent of explaining that he was in detention, particularly protected detention, for substantial periods and therefore unable to access the services available these days to prisoners interested in having their convictions and sentences reviewed.

That consideration aside, it is convenient and appropriate to give some consideration to the sentence of seven years with the recommendation for parole after two years and nine months.  The sentencing remarks reveal that the applicant, a substantially older man, maintained the sexual relationship with the complainant girl over a number of years.  Of course the indictment to which he has pleaded guilty refers to a period approaching two years.

The complainant fell pregnant at a time when she was only 12 or 13 years old.  The birth of a child in such circumstances may lead to elevation of the penalty which would otherwise be applied (see SAG 2004 Queensland Court of Appeal 286 at paragraph 19).  The sentencing Judge also referred to the substantial age difference, the lengthy extent of the relationship and the applicant's lack of real insight into the unacceptability of his wrong-doing.

On the other hand, the applicant came from a very deprived background and had pleaded guilty.  It was, however, a case where the complainant's evidence had been pre-recorded which involved her being cross-examined.  The applicant came to be sentenced with a substantial prior criminal history although that did not include sexual offending against children and little violence.

The only point the applicant has urged here today in person is that he wishes to be released to be with his sons who are aged two and four years, presently being looked after by Chermside Child Safety.  That is an unfortunate circumstance but it is not one which can legitimately motivate this Court into a revision of what is otherwise an appropriate penalty.

For offending in these circumstances, the sentence of seven years' imprisonment with parole recommended after two-and-three-quarter years is simply unassailable.  One need refer only to the broadly comparable cases of Bao 2004 Queensland Court of Appeal 445 where the sentence was nine years' imprisonment; B Court of Appeal 58 of 1997 where the sentence was eight years; and B Court of Appeal 328 of 1995 where the sentence was seven years with parole after three years.

In the context of those cases, it is additionally significant to note, as I have already, that during the period of this offending, the maximum penalty applicable to it was life imprisonment. 

Particularly because an application for leave to appeal against sentence would have no reasonable prospect of succeeding, I consider the application for extension of time should be refused.

HOLMES JA:  I agree.

HELMAN J:  I agree.

THE CHIEF JUSTICE:  The application is refused.

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