R v Dizo

[2008] QCA 89

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dizo [2008] QCA 89

PARTIES:

R
v
DIZO, Emil
(applicant)

FILE NO/S:

CA No 305 of 2007
DC No 1153 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

18 April 2008

DELIVERED AT:

Brisbane

HEARING DATE:

14 April 2008

JUDGES:

Keane and Fraser JJA and White J
Judgment of the Court

ORDER:

Application for extension of time dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant claims a prior lack of knowledge of the right to appeal – where applicant's explanation for delay is contradicted by documentary evidence upon which he seeks to rely – whether there was an error in the sentencing process so as to justify an extension of time – whether an extension of time in which to appeal against sentence should be granted

R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied

R v Tootoo (2000) 115 A Crim R 90; [2000] QCA 312, cited

COUNSEL:

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

SOLICITORS:

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

1. THE COURT:  On 19 September 2007 the applicant was convicted after a trial of one count of common assault.  He was sentenced to three months imprisonment, wholly suspended for an operational period of 12 months.  He was also disqualified absolutely from holding or obtaining a driver's licence.

1. On 13 November 2007 the applicant applied for an extension of time within which to seek leave to appeal against his sentence.  On the hearing of the application, it became apparent that the applicant's principal concern related to his conviction.

1. The applicant does not have the benefit of legal representation, and he has some difficulty in speaking English.  That having been said, it was apparent on the hearing of the application that the applicant is well able to understand and make himself understood in English.  He asserted that he was wrongly convicted.  He denied striking the complainant.

1. In an attempt to explain the delay in seeking to appeal, the applicant stated in his application that he did not know that he could seek to appeal against his sentence until 10 November 2007 when he returned home after visiting sick relatives in Europe to find a letter dated 15 October 2007 from Legal Aid Queensland advising him of his rights in relation to appeal.

1. The applicant seeks to support his application by reference to the letter of

   
   

   15 October 2007 from Legal Aid Queensland.  The terms of that letter are destructive of the applicant's attempt to explain his delay.  The letter contains the following statement:

"Counsel does not recommend that you appeal against your conviction and sentence, including the disqualification of your driver's licence.  We note that we advised you of this when you attended Legal Aid for an appointment with your solicitor … on 26 September 2007."

1. The applicant's explanation for his delay is thus contradicted by the material on which he seeks to rely.  Even making all due allowance for the applicant's difficulties with the English language, the letter from Legal Aid suggests that the applicant's explanation for his delay is quite untruthful.

1. That conclusion would be sufficient, in our view, for this Court to refuse the application.  But, in any event, there is no reason to think that an error in the sentencing process occurred so as to justify an extension of time, even if there were a satisfactory explanation for the applicant's delay.[1]

   [1]Cf R v Tait [1999] 2 Qd R 667 at 668 [5].

1. The offence in question was committed on 31 August 2005 when the applicant, who had been driving behind the complainant's motor vehicle, approached her vehicle when it was stopped at traffic lights.  He knocked on her window and punched her in the face when she wound her window down. 

1. The applicant denied assaulting the complainant and testified that she had punched him in the eye.  The applicant's version of events was rejected by the court.  There can be no doubt that the applicant was convicted on the basis that his account of the incident was regarded by the jury as untruthful.  There is no reason why this Court should have any doubt that this verdict was reasonably open to the jury.

1. So far as the sentence which was imposed is concerned, the applicant was 71 years old at the time of the offence.  He had no previous criminal history.  These are matters which count in the applicant's favour; but it must be acknowledged that this offence was a serious matter.  It involved an attack upon a woman seated in her car with her young son and elderly mother.  The attack occurred in a context in which it could have led to a more serious incident of "road rage".  The sentence was imposed after a trial.  The applicant has never shown the slightest remorse for his offence.  The sentence provides the applicant with a strong incentive to control himself in his dealings with others.  His disqualification from holding a driver's licence was clearly appropriate:  the privileges conferred on the holder of a driver's licence should not be enjoyed by persons disposed to abuse those privileges.

1. In these circumstances, the sentence cannot be said to be manifestly excessive.[2]

   [2]Cf R v Tootoo (2000) 115 A Crim R 90 at 94 – 95 [21] – [22].

1. We would dismiss the application for an extension of time.