R v Bodnar - [2001] QCA 127

[2001] QCA 127

COURT OF APPEAL

McMURDO P
WHITE J
DUTNEY J

CA No 27 of 2001

THE QUEEN

TRAIAN BODNAR Applicant

BRISBANE

..DATE 04/04/2001

JUDGMENT

THE PRESIDENT: Justice White will deliver her reasons first.

WHITE J: The applicant, who appears on his own behalf, seeks an extension of time within which to appeal against his conviction and for leave to appeal against sentence.

On 9 May 1994, he was convicted after a trial of one count of trafficking in heroin and seven counts of supply of heroin. He was sentenced on 13 May 1994 to a term of imprisonment of eight years with a recommendation that he be eligible for parole after serving three and a half years of that sentence, with a declaration of time spent in custody of 13 days.

The applicant was released to home detention on 8 September 1997 and to parole on 12 December 1997. He pleaded guilty on 24 November 2000 to a charge of unlawful production of cannabis, which the sentencing Court, constituted by Mr Justice Chesterman, accepted was for his own use.

The applicant was recommitted to custody on 17 February 2000, his parole having been suspended because of the drug production charges. His Honour imposed no further penalty having taken the view following a decision of mine in
Smith v. The Queensland Community Corrections Board,
Number 886 of 2000, of 3 November 2000, that the applicant's sentence had come to an end at the latest on 17 April 1999, taking into account remissions earned by him on that sentence.

The approach in Smith was reversed on appeal. In the meantime, amendments to the Corrective Services Act which commenced on 24 November 2000 extinguished a prisoner's entitlement to remission on his sentence if, inter alia, he had been granted leave of absence to home detention or released on parole.

These amendments would appear to apply to this applicant. He continues to be held in custody and his further application for parole is suspended pending these matters presently before the Court.

The applicant's notice of appeal was received by the Registrar of Appeals on 14 February 2001. That was well over six years from the time when the Rules and the Code provide for the filing of an appeal. His explanation for the delay is set out in his application, which he has also added to by oral submissions today and by fresh written submissions.

In his written notice he has given as his explanation for delay that he is an inmate at a correctional centre and his lack of legal knowledge has disadvantaged him in that he did not previously know his rights and did not understand the legal implications of the errors detected in relation to his sentence.

Today before the Court he has said that his solicitor and counsel told him that there were no appellable grounds after he had been sentenced.

In 1996 he appeared before the learned trial Judge with respect to a pecuniary penalty order.…

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 Bodnar

Details

AGLC: R v Bodnar [2001] QCA 127
Case: [2001] QCA 127
Decision Date: 04/04/2001

CaseChat Overview and Summary

In the case of R v Bodnar, the applicant, Traian Bodnar, sought an extension of time to appeal against his conviction and for leave to appeal against his sentence. Bodnar was convicted on one count of trafficking in heroin and seven counts of supply of heroin, and was sentenced to a term of imprisonment of eight years. He was granted parole in 1997, but was later recommitted to custody following a guilty plea to a charge of unlawful production of cannabis. The applicant's notice of appeal was received by the Registrar of Appeals on 14 February 2001, over six years after the time for filing an appeal had passed. The applicant's explanation for the delay was that he lacked legal knowledge and did not understand the legal implications of the errors detected in relation to his sentence.

The legal issues before the Court of Appeal were whether there was any good reason to excuse the delay in filing the appeal and whether it was in the interests of justice to grant an extension of time. The Court noted that the applicant had a prior criminal history and had been represented by experienced counsel at his trial. The Court also considered the grounds of appeal, which included complaints about the trial judge's summing up to the jury and the use of transcripts of tapes played during the trial. The Court found that the applicant's explanation for the delay was not compelling and that the justice of the case did not suggest that an extension of time should be granted. The Court also found that the sentence imposed on the applicant was not manifestly excessive.

The Court of Appeal refused the applicant's application for an extension of time and for leave to appeal against his conviction and sentence. The Court held that the applicant's explanation for the delay was not strong and that the justice of the case did not suggest that an extension of time ought to be granted. The Court also found that the grounds of appeal did not suggest that an extension of time should be granted and that the sentence imposed on the applicant was not manifestly excessive. The Court's order was that the application was refused.

Orders