R v Buchanan

Case [2016] QCA 33

SUPREME COURT OF QUEENSLAND

CITATION:

R v Buchanan [2016] QCA 33

PARTIES:

R
v
BUCHANAN, Patrick Ernest
(applicant)

FILE NO/S:

CA No 267 of 2014
CA No 299 of 2014
DC No 272 of 2014
DC No 390 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)
Sentence Application

ORIGINATING COURT:

District Court at Cairns – Date of Conviction & Sentence: 8 September 2014

DELIVERED ON:

23 February 2016

DELIVERED AT:

Brisbane

HEARING DATE:

30 September 2015

JUDGES:

Margaret McMurdo P and Morrison JA and Peter Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The application for an extension of time within which to appeal against conviction is refused.

2.   The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – where the applicant pleaded guilty and was sentenced to four years imprisonment for burglary, three years imprisonment for unlawful wounding, 13 years imprisonment for rape, and one month’s imprisonment for two summary offences of public nuisance and obstructing a police officer – where the matter proceeded by way of full hand-up committal – where the application for an extension of time was filed 12 days late – where the reason advanced was that the applicant was ignorant of what he had to do – where the applicant seeks leave to withdraw guilty plea he entered – where the proposed application to withdraw the plea of guilty confronts overwhelming difficulties – whether the application for an extension of time should be granted

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty and was sentenced to four years imprisonment for burglary, three years imprisonment for unlawful wounding, 13 years imprisonment for rape, and one month’s imprisonment for two summary offences of public nuisance and obstructing a police officer – where the applicant entered the complainant’s house while she was reading on the verandah – where the applicant confronted the complainant with a rock in his hand – where the applicant demanded the complainant submit to various sexual acts and when she refused he hit her with the rock three times on the head – where the complainant fought back and pushed the applicant through a window, smashing the glass – where the applicant used a shard of glass to inflict a severe wound on the complainant’s forearm, which was bleeding profusely – where the applicant ignored the complainant’s pleas to stop so she could go to a hospital – where the applicant forced the complainant to submit to sexual intercourse, threatening to kill her – where the applicant left the premises and told passers-by that he had “just raped someone” – where this was  a particularly vicious and prolonged attack, on a vulnerable but courageous woman – where the applicant showed not…

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AGLC
R v Buchanan [2016] QCA 33
Case
[2016] QCA 33
Decision Date

CaseChat Overview and Summary

The case of R v Buchanan concerns an appeal against conviction and sentence. The applicant, who was self-represented and in custody, sought an extension of time to appeal against his convictions and sentence. The applicant pleaded guilty to multiple serious offences, including burglary, unlawful wounding, rape, and public nuisance. He was sentenced to a total of 21 years in prison. The applicant claimed that he was tricked into pleading guilty due to misinformation about DNA evidence and argued that the sentence was manifestly excessive.

The primary legal issues in this case were whether the application for an extension of time should be granted, and if the sentence was manifestly excessive. The court considered the applicant's claim that he was unaware of his rights and the procedures for appealing, as well as the severity of the crimes committed. The applicant's credibility was also a key factor, particularly in light of his claim to have been tricked into pleading guilty.

The court found that the applicant's reasons for the late filing of the application for an extension of time were insufficient to warrant granting the extension. The applicant's claim that he was tricked into pleading guilty was not supported by evidence and was deemed unreliable. The court also concluded that the sentence was not manifestly excessive, considering the severity of the crimes and the lack of remorse shown by the applicant. The applicant's explanation for his guilty plea substantially undermined any mitigating factors that might have been present.

ORDERS:
1. The application for an extension of time within which to appeal against conviction is refused.
2. The application for leave to appeal against sentence is refused.

Orders

Orders of the court

1. The application for an extension of time within which to appeal against conviction is refused.

2. The application for leave to appeal against sentence is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I do not consider that it can be demonstrated that the sentence imposed was manifestly excessive.Conclusion For the reasons expressed above I would refuse the application to extend time within which to appeal against conviction, and refuse the application for leave to appeal against the sentence. I propose the following orders:1.The application for an extension of time within which to appeal against conviction is refused.2.The application for leave to appeal against sentence is refused. PETER LYONS J: I have had the advantage of reading in draft the reasons for judgment of Morrison JA in this matter. In substance I agree with those reasons, subject to what follows. In support of his application for an extension of time to appeal against his convictions, the applicant relies upon matters which he asserted from the bar table, apparently without notice. At least on the present state of the record, these matters should not be relied upon to determine the application in his favour. Nevertheless, the applicant is self-represented, and in custody. He said that he is unable to read[54]; and did not appear to have any significant education[55]. In those circumstances, it seems appropriate to give some consideration to the matters he has raised, in case some step should be taken to enable him to present evidence.[54]Appeal Transcript (AT) 1-2/35.[55]Though see the Application Record Book (AB) at p 25/40. The applicant alleged he had been tricked into pleading guilty because he was falsely told that there was evidence of the applicant’s DNA “everywhere in that house” and in the complainant’s body[56]. This was said to have been done by a lawyer, presumably a solicitor, other than the barrister who represented the applicant at the sentence[57].[56]AT 1-5/37, 1-9/23-45.[57]AT 1-3/20-45. There are some difficulties with this allegation. It is serious; and would not lightly be accepted as true, if evidence were advanced in support of it. There is nothing in the record to support the allegation. On the other hand, the prosecution case against the applicant was strong; and there is no reason why a lawyer seeking to convince his client to plead guilty would see any need to add to it. It is apparent that the applicant accepts that there was DNA evidence pointing to his guilt of the offences. Thus he sought to explain the presence of his DNA at the house where the offences were committed by the fact that he had been there on a previous occasion (when he had broken in to get alcohol); and the police could have taken his sweat from the paddy wagon where he was detained for 40 minutes, and placed it somewhere incriminating (apparently on the complainant’s nipples)[58]. The applicant does not suggest that he could lead evidence which would positively support the latter two allegations, and the last of them borders on the incredible.[58]AT 1-5/5-18. The first of these allegations resonates with what the applicant’s Counsel told the Court on the sentence, namely, that he did not “remember very much about his offending on this occasion”; he had been drinking; and “his intention in entering the house was to find more alcohol to drink”[59]. The fact that the applicant, on any version, had been to the complainant’s house, which is in a remote location, for the purpose of committing an offence, casts some doubt on his credit. The statement relating to the applicant’s intention is consistent with the complainant’s version, recorded in the Schedule of Facts, which was tendered without objection, namely, that shortly before the attack, she heard noises inside the house, and found two beers were missing from the fridge (two empty beer cans were later found at the side of the house)[60]. On the hearing of the application, the applicant made no reference to the statement by his Counsel about his intention on entering the house, although he was asked about related statements[61].[59]AB 26/10.[60]AB 47.[61]AT 1-3/45 to 1-4/10.

Ratio Decidendi

Legal Principle Established

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