R v C'Ward

[2014] QCA 15

SUPREME COURT OF QUEENSLAND

CITATION:	R v C'Ward [2014] QCA 15
PARTIES:	R v C'WARD, Marlon Douglas (applicant)
FILE NO/S:	CA No 285 of 2013 SC No 77 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	14 February 2014
DELIVERED AT:	Brisbane
HEARING DATE:	4 February 2014
JUDGES:	Margaret McMurdo P and Fraser JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for an extension of time within which to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL – where the applicant plead guilty to trafficking methylamphetamine, ecstasy and cannabis between April and November 2010 – where the applicant was sentenced to five years imprisonment with parole eligibility fixed after 20 months – where the application for leave to appeal against sentence was not filed within statutory time limit – where the applicant accepted counsel's advice to plead guilty – where the applicant submits the prosecutor erred in submissions by referring to the wrong co-offender – whether there was a satisfactory explanation for delay – whether prosecutor's error material – whether there are real prospects of success
COUNSEL:	The applicant appeared on his own behalf P J McCarthy for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent

1. MARGARET McMURDO P:  The applicant pleaded guilty on 6 February 2013 to trafficking in methylamphetamine, ecstasy and cannabis between 26 April and 6 November 2010.  He was sentenced to five years imprisonment with parole eligibility fixed on 3 October 2014, that is, after 20 months.  He did not file an application for leave to appeal against sentence within the statutory time limit.  He signed a notice of application for an extension of time within which to apply for leave to appeal against his sentence on 31 October 2013 but did not file it until 11 November 2013, about eight months out of time.  If granted the extension of time, he seeks leave to appeal against his sentence on the ground that it was conducted on a wrong basis concerning submissions made about the person Hollis, a co-offender in the trafficking business.

1. The applicant has the onus of demonstrating grounds for granting the extension of time.  To succeed, he should provide a satisfactory explanation for the lengthy delay and establish that he has at least some prospects of success in the proposed appeal.

1. He submits that he has only recently received transcripts which show that matters put forward at his sentencing were wrong and that his sentencing was conducted on a false basis.  He further claims (without supporting evidence) that his lawyers did not tell him that he could appeal.  He became aware of his rights only when advised by other inmates in August or early September.  It then took him some time to prepare his application.

1. He has provided a transcript of a telephone call between two males on 15 October 2010 at 23:25:22; an extract from a statement of a police officer, John Thomas Mahony; a schedule of SMS communications from Hollis to the applicant between 27 April 2010 and 15 May 2010; a schedule of phone calls made by or to "Twig" and "Seed"; an extract of a statement from Bradley Phelps; an extract from the transcript of his sentencing submissions; a transcript of a telephone conversation between two males on 4 November 2010; the third page of a schedule of telephone calls to or from "Seed's" phone between 28 October 2010 and 5 November 2010 with handwritten notes; and an extract from the statement of Richard David Mann.

1. In discussion with the Bench during his oral submissions, it emerged that his complaints were as follows.  First, he always maintained to his lawyers that he was not trafficking in drugs; his involvement with drugs was in a small, non-commercial way.  Despite this, his barrister gave him strong advice to plead guilty which he accepted, providing signed instructions to that effect.  Second, the prosecutor at sentence referred to a phone conversation as being between the applicant and Hollis[1] when in fact the conversation was between the applicant and another co-offender, Aaron Boyd.  So much is clear from this Court's decision in R v Boyd.[2]  He submitted that it followed from these matters that the extension of time should be granted so that he could appeal against his sentence.

   [1]Sentencing submissions T1-13.

   [2][2013] QCA 335, [11] and [21].

1. It is helpful in resolving these issues to review the events at his sentence. The applicant was 46 and 47 at the time of the offending and 49 at sentence and his guilty plea was entered close to the trial date. On his own account to this Court, the applicant pleaded guilty in open court after making a free and informed decision to do so, albeit on the robust advice of his counsel. There is nothing improper in this course. He was present at his sentence. The prosecutor tendered the sentencing remarks pertaining to his co-offenders, Hollis, Hurst and Wilson,[3] and 300 pages of transcripts from telephone intercepts between the applicant and others.[4]  The prosecutor contended that the applicant should be sentenced to five years imprisonment, consistent with the sentences imposed on the co-offenders.  The factual basis of the plea placed before the court was not contested by the applicant or his counsel who specifically agreed with the head sentence suggested by the prosecutor but urged the judge, in the interests of certainty, to suspend it after one-third rather than set a parole eligibility date.

   [3]Sentencing submissions, T-1-2-45 exhibit 3.

   [4]Sentencing submissions, T-1-2-25 exhibit 2.

1. In his sentencing remarks, the judge stated that the applicant's offending came to light when police located a phone with over 16,000 text messages in a police search.  This resulted first in the investigation of Hollis and later, through the text messages on Hollis's phone, the applicant.  The text messages made obvious that Hollis was negotiating to buy drugs from the applicant.  The case against the applicant included evidence of text messages on his phone; surveilled calls from Hollis's phone to his phone and calls from the applicant's phone.  These conversations demonstrated that the applicant was involved in trafficking at a significant level, not merely directly to users but also to those who were selling drugs to others.  He was prepared to at least threaten violence in order to enforce debts incurred in his trafficking business.  The terms he used in negotiations indicated he was dealing in significant amounts of drugs and money.  It was not possible to be precise about the quantities of the three categories of drugs which passed through his hands but it was much more than low level trafficking.  Almost $6,000 was found at his premises, together with bags and scales with traces of speed and tick sheets with phone contacts, some of which referred to amounts as high as $15,000.

1. His Honour referred to the sentences imposed on the co-offenders, Wilson;[5] Hollis[6] and Hurst,[7] who were each sentenced to five years imprisonment with early suspension after either 18 or 20 months.  But each was much younger than the applicant, had a lesser criminal history than the applicant and pleaded guilty at an earlier time.

   [5]R v Wilson, North J, Townsville SC, 7 December 2012.

   [6]R v Hollis, North J, Townsville SC, 10 February 2012.

   [7]R v Hurst, North J, Townsville SC, 6 November 2012.

1. His Honour noted the applicant's disturbing and dysfunctional upbringing, his regret at becoming involved in this offending, his recent insight into the harm caused by peddling drugs to others, and that there was no evidence of a hedonistic or wealthy lifestyle.  To his credit he had been on bail without any further offending for almost two years.  This suggested that he had prospects of rehabilitation.  He was, however, a mature man and it was concerning that he continued his illicit business after he realised there was police interest in it.  The prosecution referred to R v McAway[8] and R v Challacombe[9] and asked for a sentence in the range of five years imprisonment, apparently to achieve some parity with the co-offenders.  His conduct was, however, in a slightly more serious category because of his criminal history, maturity, and the absence of such an early guilty plea.  His case was twice listed for trial and his guilty plea was a late one, although this saved the community time, money and effort and the applicant was entitled to a reasonable discount.  His Honour rejected defence counsel's contention that suspension was preferable to parole as parole would provide more significant motivation to avoid criminal associations.

   [8][2008] QCA 401.

   [9][2009] QCA 314.

1. For the following reasons, I consider the applicant has no prospects of success in his proposed appeal against sentence.  He apparently entered a free and informed plea of guilty after receiving firm but apparently prudent legal advice.  Neither he nor his counsel disputed the facts of the offending put forward by the prosecutor at sentence.  It seems that the prosecutor erred in his submissions by confusing Hollis with Boyd when referring to a telephone call with the applicant.  But this did not materially affect the seriousness of the applicant's role in the trafficking and could not have affected the judge's determination as to the appropriate sentence.  Five years imprisonment was a moderate penalty for this offence and the parole eligibility date set after serving one-third appropriately and generously recognised the mitigating features.  There was no error in ordering parole rather than suspension.  The fact that younger co-offenders, with lesser criminal histories and who pleaded guilty at a much earlier time than the applicant, may have been sentenced on a slightly different factual basis to a slightly lesser period of actual custody does not provide grounds for a successful appeal against sentence.  He has not demonstrated any realistic prospect of succeeding in his proposed appeal.

1. The applicant's explanation for the eight month delay in commencing his appeal is unconvincing.  But in any case, as he has not demonstrated that he has any real prospects of success in his proposed appeal against sentence, his application for an extension of time is futile and must be refused.

ORDER:

Application for an extension of time within which to appeal against sentence is refused.

1. FRASER JA:  I agree with the reasons for judgment of McMurdo P and the order proposed by her Honour.

1. MULLINS J:  I agree with the President.