R v Curtis

[1998] QCA 195

COURT OF APPEAL

[1998] QCA 195

PINCUS JA AMBROSE J LEE J

CA No 121 of 1998
THE QUEEN
v.

ALEXANDER CURTIS	Applicant
BRISBANE ..DATE 26/05/98
JUDGMENT
260598 T13-14/JB M/T COA116/95

PINCUS JA: This is an application for an extension of time
within which to apply for leave to appeal against sentence and
to appeal against conviction. The applicant was convicted in
the District Court on 21 February 1998 and was sentenced on
25 February 1998. He is only a few days out of time and he
has advanced arguments which have been directed wholly, or at
least almost wholly to the question of sentence. The
application relates to both sentence and conviction but there
is nothing before us to suggest that an appeal against
conviction would have the slightest chance of success, nor
does it appear to me that Mr Curtis is particularly serious
about that aspect of the matter.

The question of appeal against sentence raises a slightly more difficult issue. The applicant was convicted of a number of offences in relation to a minor, supplying a dangerous drug, possession of a dangerous drug, indecent assault and indecent assault with circumstances of aggravation and the primary judge imposed a sentence on him which, on the face of it, is not excessive, that is a sentence of two and a half years' imprisonment with recommendation for parole after nine months.

The circumstances which have been addressed by the applicant in his address to us are his age, which is nearly 80, and his health. He says his health is quite bad and the stress of incarceration is aggravating his health problems. He also says that the set-up in the prison is quite unsuitable for a person with his difficulties. The material before us does not include any medical information, but we have taken the opportunity, at the suggestion of Mrs Clare, to have a look at

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such reports as there are and they seem not particularly
informative. It does appear, however, that there is material
suggesting that the applicant might have psychiatric
difficulties and also what are described as musculo-skeletal

problems, not precisely identified.

The learned primary judge in his reasons for sentence
mentioned the applicant's health problems. His Honour said,
after discussing them,

"[w]hilst those matters are relevant to the question of

sentence, they do not specifically operate in reduction
of the head sentence which should be imposed. But
nevertheless, in determining the head sentence and in
determining a recommendation for parole, it is not
irrelevant to have regard to those matters. Were you a
somewhat younger person in better health, it may well be
that the sentences that the convictions would draw would
be more severe than those which I imposed on you."

It is not quite clear from that whether His Honour thought that he should, because of the age and bad health of the applicant, make a reduction in the sentence which would otherwise be imposed. His Honour's view seems merely to have been that perhaps the sentence would have been higher but for the circumstances of age and bad health. On the other hand, it is possibly arguable that the case was one in which a reduction should specifically have been made on account of those factors. Mrs Clare has submitted to us strongly and, if I may say so, helpfully, that the possibility of reduction in sentence is so remote that an extension should not be granted, in short that the sentence is not arguably excessive.

While that may well be so, I am not sufficiently convinced of the hopelessness of a challenge to the sentence to think it right to refuse an extension as to that matter, in view of the

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shortness of the period of time involved and the apparent
memory difficulties which the applicant has, difficulties the
existence of which receive some support from the medical
reports.

The order which I would therefore propose is that the application for an extension of time within which to apply for leave to appeal against sentence be allowed, that the time be extended so far as necessary to enable that application for leave to appeal against sentence to be heard, and that the application for an extension of time in which to appeal against conviction be refused. I should add that I wish to discuss with Mrs Clare the possibility of getting further medical material.

AMBROSE J: Yes, I agree with the presiding Judge. I also take into account that the learned sentencing Judge recommended that the Commission give urgent consideration to the sort of placement of the applicant within the prison system having regard to his age and medical condition and also that he receive such medical attention that may be required from time to time. That would lead me to believe that there are probably some sort of reports or records in the possession of the Commission that might cast some light on the principal matters of complaint that the applicant raised. It may be possible to obtain that sort of information provided the Commission has taken account of and implemented the recommendation of the sentencing Judge over the last three months.

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LEE J: I agree with the reasons of the presiding Judge and the orders proposed.

PINCUS JA: Mrs Clare, we have discussed the matter, as is evident to you, and we would think that the application in respect of the sentence could be better dealt with if there were some up to date medical information available. As to the point that is mentioned by Mr Justice Ambrose, that is how is the prison coping with him, there may be some information you could get for the Court, and it seems to me likely that he really needs a proper orthopaedic examination to see what is this musculo-skeletal problem, and it may be, although I am not so sure of this, a further psychiatric evaluation.

I mention these matters in the hope that the Crown might be able to assist the Court because it looks as if this won't happen unless the Crown moves it in that direction.

MRS CLARE: The Crown will do its best.

PINCUS JA: Yes, we will accept that assurance and thank you for it. Those will be the orders.

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