R v CCE - [2018] QCA 176

[2018] QCA 176

COURT OF APPEAL

SOFRONOFF P
HENRY J
BROWN J

CA No 37 of 2018
DC No 377 of 1997

THE QUEEN

CCE Applicant

BRISBANE

THURSDAY, 2 AUGUST 2018

JUDGMENT

BROWN J: On 23 February 2018, the applicant filed a notice of appeal and an application for an extension of time, seeking to set aside a conviction or alternatively claiming that the sentence imposed was manifestly excessive. The applicant was convicted on his own plea of guilty of carnal knowledge by anal intercourse of a child under the age of 12 years and sentenced on 15 December 1997. He was sentenced to life imprisonment. He sought leave to appeal the sentence imposed, apparently on the ground that it was manifestly excessive. That application was unanimously dismissed on 27 May 1998. A copy of that judgment, R v C [1998] QCA 207, was filed by the respondent in the present application.

The present application is made more than 20 years after the time prescribed for appealing the conviction and sentence. The applicant therefore requires an extension of time to be granted by this Court.

No material has been provided by the applicant in support of the application. The only material before the Court, apart from the notice of appeal and application to extend time, is the transcript of the sentence hearing, the sentencing remarks of the learned primary judge and the applicant’s criminal history.

Factual Background

The offence related to a two year old child. The Court of Appeal considered that the sentencing judge described the offence accurately as one of almost unimaginable brutality. The complainant suffered significant injuries as a result of the offence.

The applicant was the nephew of the complainant’s grandmother. He was seen by the grandmother climbing out of the window of the room, where the complainant was found, after she managed to unlock the door. The applicant initially denied any involvement and his de facto partner provided a false alibi, claiming that he had been with her all night. He agreed to plead guilty after the committal when forensic testing showed the complainant’s blood was on penile swabs that had been taken from him. A psychiatrist’s report provided to the sentencing court did not find that he suffered any psychotic or neurotic disorder. The applicant had a criminal history of violent conduct, particularly associated with alcohol.

The learned sentencing judge and the Court of Appeal found that he had shown no remorse and his plea of guilty could not go to that. The learned sentencing judge and the Court of Appeal commented that he was a person of at least average intelligence. Davis JA, with whom McPherson JA and Thomas J agreed, stated that:

“It was submitted on his behalf before us this morning by Mr Atkinson that a sentence of life imprisonment to an Aboriginal person, whom the applicant is, who particularly values his freedom, is a crushing sentence. It was submitted that by virtue of its indeterminate nature it would…

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 CCE

Details

AGLC: R v CCE [2018] QCA 176
Case: [2018] QCA 176
Decision Date: 2 AUGUST 2018

CaseChat Overview and Summary

The Court of Appeal heard an application by CCE, an individual convicted and sentenced in 1997, seeking leave to appeal against the sentence imposed. The applicant, who pleaded guilty to the offence of carnal knowledge by anal intercourse of a child under the age of 12 years, was sentenced to life imprisonment. The applicant sought to appeal on the basis that the sentence was manifestly excessive and that his guilty plea should be set aside. The applicant also argued that the medical evidence was flawed and that there was insufficient evidence to link him to the offence. The appeal was brought more than 20 years after the time prescribed for appealing the conviction and sentence. The applicant was required to provide a good reason for the delay and demonstrate that it was in the interests of justice to grant an extension of time.
The Court found that the applicant had not provided any good reason for the significant delay in bringing the application. The applicant had been represented by counsel at the time of his plea and sentence, and none of the facts were disputed. The Court also found that the applicant had not presented a viable case, nor demonstrated that he had suffered a miscarriage of justice. The Court noted that the applicant had previously applied to appeal his sentence, which was dismissed. The Court found that the applicant had not presented any compelling demonstration of a serious injustice which could only be corrected on appeal. The Court also found that the applicant had not persuaded the Court to go behind his plea of guilty. The Court found that the applicant's complaints regarding the sentence and medical evidence did not warrant setting aside the conviction or sentence.
The Court found that the application for an extension of time and leave to appeal was without merit. The Court noted that the application was filed more than 20 years out of time and that the delay was unexplained. The Court found that it was not in the interests of justice to grant the extension of time. The Court dismissed the application and ordered that the applicant's application for leave to appeal be refused.
The Court dismissed the application and ordered that the application for leave to appeal be refused.

Orders