R v Callope - [2012] QCA 201

SUPREME COURT OF QUEENSLAND

CITATION:

R v Callope [2012] QCA 201

PARTIES:

R
v
CALLOPE, Clinton John
(applicant)

FILE NO/S:

CA No 118 of 2012
DC No 123 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Mount Isa

DELIVERED EX TEMPORE ON:

6 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

6 August 2012

JUDGES:

Muir and Fraser JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application dismissed.

CATCHWORDS:

APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant convicted of one count of doing a malicious act with intent to cause grievous bodily harm (count 1) and two counts of assault occasioning bodily harm – where applicant sentenced to five and a half years imprisonment with a serious violent offence declaration for count 1 – where applicant sentenced to other concurrent terms of imprisonment for the latter counts – where applicant applied 18 months out of time for an extension of time within which to appeal against his sentences – where applicant only concerned with having the serious violent offence declaration set aside – where complainant was left with substantial physical and psychological injuries – where primary judge described attack as one of the most serious examples of a physical assault without a weapon – whether extension should be granted

COUNSEL:

The applicant appeared on his own behalf
B J Merrin for the respondent

SOLICITORS:

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

MUIR JA: The applicant was convicted on 24 September 2010 of one count of doing a malicious act with intent to cause grievous bodily harm and sentenced to five years and six months’ imprisonment with a declaration that the offence was a serious violent offence. That was count 1.

He was convicted also of counts 2 and 3, assaults occasioning bodily harm, and sentenced to three years and six months’ imprisonment for the former and two years’ imprisonment for the latter. The sentences were ordered to be served concurrently.

He applies some 18 months out of time for an extension of time within which to appeal against his sentences. The applicant explains his delay on his legal advisor’s failure to advise him and on his somewhat inconsistent belief based on what he said he was told that they would appeal against the serious violent offence declaration. There was no affidavit deposing to any of these matters which, even if accepted, do not explain an 18 months’ delay.

The applicant is concerned only to attempt to have set aside the serious violent offence declaration. He points to some disparities in the recollections of various witnesses which could have been explored by him had there been a contested hearing. There is, however, no explanation of how any of these differences, if explored, could have affected the legitimacy of 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 Callope

Details

AGLC: R v Callope [2012] QCA 201
Case: [2012] QCA 201
Decision Date: 6 August 2012

CaseChat Overview and Summary

The appellant, Callope, was convicted of one count of doing a malicious act with intent to cause grievous bodily harm and two counts of assault occasioning bodily harm. He was sentenced to five and a half years imprisonment with a serious violent offence declaration for the first count and concurrent terms of imprisonment for the other counts. Callope applied for an extension of time to appeal his sentences, which was filed 18 months after the time limit had expired. He was primarily concerned with having the serious violent offence declaration set aside. The primary judge had described the attack on the complainant, who was left with substantial physical and psychological injuries, as one of the most serious examples of a physical assault without a weapon.

The legal issues before the court were whether the extension of time for the appeal should be granted given that it was filed well outside the statutory time limit and the absence of any substantial reason to justify the delay. The court examined the statutory provisions for the appeal process and the discretion of the court to extend the time limit. The court also considered the seriousness of the offence, the impact on the complainant, and the need for finality in criminal proceedings.

The court held that while the attack was severe, the statutory time limit for filing an appeal was clear and strict. The court noted that the application was made well beyond the prescribed period and without any substantial reason for the delay. The court emphasised the importance of adhering to statutory time limits to ensure the finality and efficiency of the criminal justice system. The appeal application was dismissed as the court found no substantial reason to grant an extension of time.

No further orders were made by the court as the application for an extension of time to appeal was dismissed.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Callope [2012] QCA 201
PARTIES:	R v CALLOPE, Clinton John (applicant)
FILE NO/S:	CA No 118 of 2012 DC No 123 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Mount Isa
DELIVERED EX TEMPORE ON:	6 August 2012
DELIVERED AT:	Brisbane
HEARING DATE:	6 August 2012
JUDGES:	Muir and Fraser JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application dismissed.
CATCHWORDS:	APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant convicted of one count of doing a malicious act with intent to cause grievous bodily harm (count 1) and two counts of assault occasioning bodily harm – where applicant sentenced to five and a half years imprisonment with a serious violent offence declaration for count 1 – where applicant sentenced to other concurrent terms of imprisonment for the latter counts – where applicant applied 18 months out of time for an extension of time within which to appeal against his sentences – where applicant only concerned with having the serious violent offence declaration set aside – where complainant was left with substantial physical and psychological injuries – where primary judge described attack as one of the most serious examples of a physical assault without a weapon – whether extension should be granted
COUNSEL:	The applicant appeared on his own behalf B J Merrin for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent