R v BBM - [2008] QCA 7

SUPREME COURT OF QUEENSLAND

CITATION:

R v BBM [2008] QCA 7

PARTIES:

R
v
BBM
(applicant)

FILE NO/S:

CA No 240 of 2007
DC No 493 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

District Court at Southport

DELIVERED EX TEMPORE ON:

5 February 2008

DELIVERED AT:

Brisbane

HEARING DATE:

5 February 2008

JUDGES:

Keane, Holmes and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for extension of time within which to appeal against sentence granted

2. Application for extension of time within which to appeal against conviction refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCELLANEOUS MATTERS – POWER TO BRING APPEAL – EXTENSION OF TIME – where applicant convicted on his own plea of guilty – where applicant sentenced to 10 years imprisonment – where applicant applied for extension of time in which to seek leave to appeal against conviction and sentence – where there is an arguable irregularity attending the sentence imposed – whether an extension of time to seek leave to appeal against conviction and sentence should be granted

R v GV [2006] QCA 394; CA No 190 of 2006, 27 September 2006, applied
R v Johnson [2007] QCA 433; CA No 151 of 2007, 7 December 2007, applied
R v Lewis [2006] QCA 121; CA No 325 of 2005, 21 April 2006, applied

COUNSEL:

The applicant appeared on his own behalf
G P Cash for the respondent

SOLICITORS:

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

KEANE JA: On 29 September 2006 the applicant was convicted, on his own plea of guilty, of one count of maintaining an unlawful sexual relationship with his daughter and eight counts of incest. The offences were alleged to have occurred between 1 January 1991 and 31 December 2002.

The complainant was aged between eight and 15 years of age for the period covered by the maintaining charge, and 17 to 21 years of age for the period covered by the incest charges. He was sentenced to 10 years' imprisonment by the learned sentencing Judge.

On 25 September 2007 the applicant gave notice of his intention to apply for an extension of time within which to appeal against his conviction and the sentence.

The applicant's explanation for his lengthy delay is not compelling. He says that he was unable to obtain his file from his former solicitors and was handicapped by his lack of legal expertise. Neither of these assertions affords a reasonable explanation for the lapse of so much time before the applicant sought to exercise his right to seek to appeal. It is the settled practice of the Court, however, that even where there is no satisfactory explanation for delay, an extension of time may be granted if a demonstrable miscarriage might be perpetuated by the…

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 BBM

Details

AGLC: R v BBM [2008] QCA 7
Case: [2008] QCA 7
Decision Date: 5 February 2008

CaseChat Overview and Summary

The case of R v BBM involved the applicant, BBM, who had been convicted on his own plea of guilty and sentenced to 10 years imprisonment. BBM sought an extension of time to appeal against both his conviction and sentence. The legal issues before the court centred on whether the application for an extension of time should be granted, particularly in light of an arguable irregularity in the sentence imposed.

The court examined the merits of BBM's application, weighing the need for timely legal recourse against the potential for an arguable irregularity in the sentence. The applicant's plea of guilty and the length of the sentence were significant factors considered by the court. The court acknowledged that while BBM had pled guilty, the potential irregularity in the sentence warranted further examination.

The court granted the application for an extension of time to appeal against the sentence, recognising the importance of addressing the arguable irregularity. However, the court refused the application for an extension of time to appeal against the conviction, finding that BBM's plea of guilty and the lack of substantial grounds to challenge the conviction did not support such an extension. The court's decision highlighted the need for a balance between ensuring justice is served and respecting the finality of guilty pleas.

Orders

Orders of the court

1. Application for extension of time within which to appeal against sentence granted

2. Application for extension of time within which to appeal against conviction refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v BBM [2008] QCA 7
PARTIES:	R v BBM (applicant)
FILE NO/S:	CA No 240 of 2007 DC No 493 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence & Conviction)
ORIGINATING COURT:	District Court at Southport
DELIVERED EX TEMPORE ON:	5 February 2008
DELIVERED AT:	Brisbane
HEARING DATE:	5 February 2008
JUDGES:	Keane, Holmes and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for extension of time within which to appeal against sentence granted 2. Application for extension of time within which to appeal against conviction refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCELLANEOUS MATTERS – POWER TO BRING APPEAL – EXTENSION OF TIME – where applicant convicted on his own plea of guilty – where applicant sentenced to 10 years imprisonment – where applicant applied for extension of time in which to seek leave to appeal against conviction and sentence – where there is an arguable irregularity attending the sentence imposed – whether an extension of time to seek leave to appeal against conviction and sentence should be granted R v GV [2006] QCA 394; CA No 190 of 2006, 27 September 2006, applied R v Johnson [2007] QCA 433; CA No 151 of 2007, 7 December 2007, applied R v Lewis [2006] QCA 121; CA No 325 of 2005, 21 April 2006, applied
COUNSEL:	The applicant appeared on his own behalf G P Cash for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent