R v Cockrell; ex parte

[2005] QCA 268

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cockrell; ex parte Cth DPP [2005] QCA 268

PARTIES:

R
v
COCKRELL, Marcus Geoffrey
(applicant)
EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(respondent)

FILE NO/S:

CA No 64 of 2005
DC No 2756 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

2 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

2 August 2005

JUDGES:

McMurdo P, Keane JA and Dutney J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - OTHER MATTERS - applicant convicted after pleas of guilty to offences against Queensland and Commonwealth law - over a year later applied for an extension of time to appeal against conviction and sentence - Court of Appeal granted application for extension of time in respect of the Queensland offences, allowed the appeal, set aside the pleas of guilty and convictions in respect of the Queensland offences and declared the cumulative sentence of one month imposed on a Commonwealth offence to have been served - applicant subsequently applied for an extension of time to apply for leave to appeal against sentence - whether applicant can revisit reasons for judgment and order made by Court of Appeal through application - whether Court of Appeal can deal with matters raised in application when applicant has already exhausted his rights of appeal to the Court of Appeal

Criminal Code 1899 (Qld), s 672A

R v Cockrell; ex parte Cth DPP [2005] QCA 59; CA No 325 of 2004, 11 March 2005, cited
R v Kenny [2000] QCA 69; CA No 385 of 1999, 15 March 2000, applied
R v Smith [1968] QWN 50, applied
R v Smith (No 2) [1969] QWN 10, applied

COUNSEL:

The applicant appeared on his own behalf
J M Bentley for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Commonwealth Director of Public Prosecutions for the respondent

THE PRESIDENT:  This application purports to be an application for an extension of time to apply for leave to appeal against sentence.  It is about 19 months out of time.

Mr Cockrell was relevantly convicted on 30 November 2003 after pleading guilty to 19 offences of a fraudulent nature contained in an ex officio indictment charging counts against both the Queensland and the Commonwealth Crown.  All offences were Commonwealth offences except for counts 12, 14, 16 and 18 which were offences against Queensland law.  On the Queensland offences he was originally sentenced to six years imprisonment with a recommendation that he be considered eligible for post-prison community based release after serving two years.  On each of counts 1 to 8 he was sentenced to three and a half years imprisonment with a non parole period of 18 months.  On count 9 he was sentenced to one month cumulative imprisonment.  On all the remaining counts he was sentenced to 18 months imprisonment.

The learned sentencing judge declined to make a recognisance release order under s 19AC(4) Crimes Act 1914 (Cth). Apart from count 9, all sentences were concurrent.

Mr Cockrell originally applied within time for leave to appeal against sentence but abandoned that application after receiving legal advice.  Over a year later he then applied for an extension of time within which to appeal against his conviction.  This Court granted that application in respect of the Queensland offences, allowed the appeal and set aside the pleas of guilty and convictions in respect of the Queensland offences and also declared that the cumulative sentence of one month imprisonment imposed on count 9 has now been served: see R v Cockrell; ex parte Cth DPP [2005] QCA 59; CA No 325 of 2004, 11 March 2005.

The applicant was approved for post-prison community based release to work on 17 June 2004 and was granted work release on 12 August 2004.  He was then granted bail on his own undertaking on 7 October 2004 pending his earlier appeal to this Court.  I do not understand he has been in custody since that time.  His parole expires on the 26th of September this year.

As I understand Mr Cockrell's contentions, he now wishes to revisit, not the orders made by this Court, but some obiter comments in the reasons for judgment in his earlier appeal. Ordinarily, if a litigant is dissatisfied with the reasons for judgment and order of this Court, the only recourse is to apply for special leave to appeal to the High Court of Australia or under s 672A Criminal Code 1899 (Qld).

The applicant's further contentions, that a retrospective parole order led to him being detained unlawfully in custody from 27 March 2004 until 7 October 2004 and that the Queensland Community Corrections Board acted unconstitutionally in not releasing him earlier, are not matters with which this Court can deal in an application for extension of time for leave to appeal against sentence, at least, when he has already exhausted his rights of appeal to this Court: see R v Smith [1968] QWN 50, R v Smith (No 2) [1969] QWN 10 and R v Kenny [2000] QCA 69; CA No 385 of 1999, 15 March 2000. As Ms Bentley, for the respondent, suggests, it would seem his grievances would be better aired in an application for judicial review. In any case, he is no longer in custody and there seems no possible practical benefit in pursuing his arguments before this Court and in extending time to consider his application. The application is misconceived. It should be refused.

KEANE JA:  I agree.

DUTNEY J:  I agree.

THE PRESIDENT:  The application is refused.

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