R v CBA

[2011] QCA 281

SUPREME COURT OF QUEENSLAND

CITATION:

R v CBA [2011] QCA 281

PARTIES:

R
v
CBA
(applicant)

FILE NO/S:

CA No 215 of 2011
DC No 38 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

11 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

5 October 2011

JUDGES:

Muir and Fraser JJA and Margaret Wilson AJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for extension of time refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant pleaded guilty to one count of maintaining a sexual relationship with a child under 16 years – where the applicant was sentenced to five years imprisonment with parole eligibility after 20 months – where the applicant wished to appeal the sentence on the ground that it was manifestly excessive – where the applicant applied for leave to appeal against sentence approximately nine months out of time –  whether the proposed appeal has prospects of success – whether the sentence imposed was manifestly excessive – whether the application for extension of time should be granted

Penalties and Sentences Act 1992 (Qld), s 13

R v Davies [1998] QDC (11 December 1998), cited
R v Holland [1995] QDC (10 October 1995), cited
R v Martin [2002] QCA 201, considered
R v Myers[2009] QCA 14, cited
R v SAU[2006] QCA 192, considered
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited
R v Walden [2010] QCA 13, considered
R v W [1998] QCA 343, considered
R v Wing[2007] QCA 138, considered

COUNSEL:

The applicant appeared on his own behalf
V A Loury for the respondent

SOLICITORS:

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

1. MUIR JA:  I agree that the application for an extension of time should be refused for the reasons given by Margaret Wilson AJA.

1. FRASER JA:  I agree with the reasons for judgment of Margaret Wilson AJA and the order proposed by her Honour.

1. MARGARET WILSON AJA:  The applicant pleaded guilty to one count of maintaining a sexual relationship with a child under 16 years.  He was sentenced to five years imprisonment with parole eligibility after 20 months (i.e., after serving one-third of the sentence).

1. The applicant wishes to appeal against the sentence on the basis it was manifestly excessive.  He submitted that the sentencing judge erred as follows:

(a)        in over-estimating untested information in statements made by the victim;

(b)in under-valuing the guilty plea: it saved not one, but two young people from the trauma of giving detailed interviews with the Crown prosecutor;

(c)in ignoring that the applicant would have to live with his own shame and guilt for the rest of his life;

(d)in not considering that the guilty plea prevented…