R v Cummins

[2004] QCA 127

SUPREME COURT OF QUEENSLAND

CITATION:	R v Cummins [2004] QCA 127
PARTIES:	R v CUMMINS, James Lewis (applicant)
FILE NO/S:	CA No 13 of 2004 DC No 256 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction & Sentence)
ORIGINATING  COURT:	District Court at Southport
DELIVERED EX	22 April 2004
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	22 April 2004
JUDGES:	de Jersey CJ, Jerrard JA and Holmes J Separate reasons for judgement of each member of the Court, each concurring as to the order made
ORDER:	Application for extension of time to appeal against conviction and sentence dismissed

CATCHWORDS: CRIMINAL LAW – CRIMINAL LIABILITY AND CAPACITY – PROOF AND EVIDENCE – GENERALLY – where applicant pleaded guilty to a number of offences including 2 counts of armed robbery – where applicant contended that he was in custody at the time the relevant offences were committed – whether evidence supports the applicant’s contention that he was in custody at the time the relevant offences were committed

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – PLEAS – GENERAL PLEAS – PLEA OF GUILTY – ACCEPTANCE – where applicant contends that he pleaded guilty to the offences after receiving erroneous advice regarding the likely sentence that would be imposed – where the applicant was represented by competent and experienced counsel – whether a miscarriage of justice will occur if the guilty pleas are not set aside

COUNSEL:  S Lewis for the applicant

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M J Copley for the respondent

SOLICITORS:  Ryan & Bosscher (Southport) for the applicant
Director of Public Prosecutions (Queensland) for the
respondent

HOLMES J: The applicant was sentenced on 29th of November 2002 on his own plea of guilty to concurrent periods of imprisonment, ranging between two and six years in respect of one count of break, enter and steal, one count of attempted armed robbery with personal violence, one count of stealing, two counts of armed robbery, one count of robbery with personal violence and one count of dangerous operation of a vehicle.

He has sought an extension of time within which to appeal against conviction and sentence on this basis, that he had no recollection of the offences, but says that five months ago he realised in effect that he had an alibi when he received a witness statement in which the witness said he was robbed on the 10th of July 2001. The contention of the applicant is that he was in custody at the Southport watch-house from the 1st to the 7th of July 2001 and then transferred to the Arthur Gorrie Correctional Centre, so that he could not have committed the offences, which occurred on the 6th and 10th of July 2001.

He was sentenced on these facts. On 6th of July 2001, he stole clothing and footwear worth $1,707; damaging doors and windows in the commission of the offence at a cost of some $4,000. That led to the charge of break, enter and steal.

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The remaining offences all occurred on the 10th of July 2001 in a series of hold-ups of petrol stations during which cigarettes and money were stolen. At the last of those, the applicant went to the Caltex petrol station at Broadbeach, threatened the attendant, who handed over money, and fled in a vehicle. He was actually pursued from there by a security guard and later by the police in a chase in which he drove at excessive speed and on one occasion through a red light; hence the dangerous driving count. When he finally stopped the vehicle, he was found to be its sole occupant and various amounts of money and cigarettes were found in it, in quantities consistent with the petrol station robberies.

There is no evidence at all to support the applicant's contention that he was in custody from the 1st of July. In fact, it seems to be contradicted by police statements produced by the respondent, which recount the chase I have referred to and the apprehension of the applicant on the 10th of July 2001; by a prisoner transfer sheet, which shows he was taken into custody at Southport at 9.05 on the 10th of July 2001; by inquiries made by the solicitors now representing him, the effect of which was that he was placed in the Southport watch-house on 10th of July 2001, not having been there at any earlier time and having appeared before the Southport Magistrates Court on that day; and by a reception medical history taken at Arthur Gorrie Correctional Centre on the 12th of July 2001. There is, on any view, nothing in what the applicant says about an earlier arrest.

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Some other complaints were made about the applicant in his written submissions: that he had pleaded guilty to these offences after receiving bad advice by a non-named person that he would receive a five year sentence, suspended after one year. He was represented by extremely competent and experienced counsel at his sentence and it seems to me the sentence was on the lenient side, given the nature of the offences and what is described as a lengthy criminal history in New South Wales for property offences for which on six occasions he has been imprisoned.

He also made some written submissions about not fitting the description by one of the victims in his witness statement, which does not bear canvassing at this stage and a description in a medical report of a 40 year old offender, which concerns an entirely separate incident and is quite irrelevant. The application is utterly without merit and should be dismissed.

JERRARD JA: I agree.

THE CHIEF JUSTICE: I agree. The application is dismissed.

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