R v Doyle - [1994] QCA 81

IN THE COURT OF APPEAL [1994] QCA 081

SUPREME COURT OF QUEENSLAND

C.A. No. 454 of 1993

Brisbane

[R v. Doyle]

THE QUEEN

ROWAN CHARLES DOYLE Applicant

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McPherson J.A.

Pincus J.A. Mackenzie J.

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Judgment of the Court
Judgment delivered 06/04/94

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APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPLY FOR

LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

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CATCHWORDS:CRIMINAL LAW - extension of time - sentence - applicant sentenced in District Court for earlier offences - no recommendation for parole made in District Court - whether trial judge sentencing in Supreme Court for later offences committed whilst applicant in custody awaiting trial on earlier offences should have made recommendation for parole -interpretation of s.157(3) Penalties and Sentences Act.

Counsel:Mr J. Farmer for the applicant.

Mr J. Hunter for the Crown.

Solicitors:Legal Aid Office for the applicant.

Director of Prosecutions for the Crown.

Date of Hearing:28/03/94.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 06/04/94

This is an application for an extension of time within which to appeal against sentence. The application relates to sentences imposed in the Supreme Court at Townsville on 14 October 1993. The material before the Court discloses that after the sentence hearing, then counsel for the applicant expressed to his client the opinion that an appeal against the sentence was warranted and said he would express that view to the Legal Aid Office. On 27 October 1993 the solicitor who had instructed counsel on behalf of the applicant wrote to the Legal Aid Office confirming that counsel had advised an appeal. The applicant's affidavit says, in effect, that he thought an appeal had been filed, but discovered too late that it had not. There is also an affidavit on behalf of the Legal Aid Office to the effect that it was the applicant's solicitor's job to file a notice of appeal; but it is unnecessary to pursue the topic of responsibility for the failure to do that, since it seems plain that there was an intention to take whatever steps were necessary to challenge the sentence and that it was not the fault of the applicant that this did not occur.

Therefore an extension of time should be granted, if the application would have any reasonable prospect of success. Mr Farmer for the applicant argued that question rather fully.

Mr Farmer's main point was that the primary judge should have made such an order as is contemplated by s. 157(3) of the Penalties and Sentences Act 1992. There is a question of interpretation of that provision which arises on the following facts.

On 10 March 1992 the applicant and one Jackson were in custody at Townsville awaiting trial on charges which were to be dealt with in the District Court and which are further mentioned below. The applicant and another prisoner, Jackson, decided early on the morning of that day to attempt to escape from the Townsville Correctional Centre. To that end, the applicant hit a prison officer, one Kybus, on the back…

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 Doyle

Details

AGLC: R v Doyle [1994] QCA 81
Case: [1994] QCA 81
Decision Date: 6/04/1994

CaseChat Overview and Summary

The case of R v Doyle involved an application for an extension of time to appeal against a sentence imposed in the Supreme Court. The applicant, Doyle, sought the extension on the grounds that the trial judge had failed to make a recommendation for parole under s. 157(3) of the Penalties and Sentences Act 1992 and that the sentence itself was excessive. The primary legal issues before the Court were whether the Supreme Court judge was required to make a recommendation for parole and if the sentence was too severe. The Court considered the provisions of s. 157(3) of the Penalties and Sentences Act 1992 and determined that it did not impose an obligation on the court imposing a later sentence to make a recommendation for parole unless there was a current recommendation for parole attached to the earlier sentence. The Court also found that the sentence of 12 years imprisonment was not excessive, given the brutality of the crime and the applicant's criminal history. Therefore, the application for an extension of time was refused.

The Court of Appeal held that the Supreme Court judge was not required to make a recommendation for parole under s. 157(3) of the Penalties and Sentences Act 1992, as the provision only applied if there was a current recommendation for parole attached to the earlier sentence. The Court also found that the sentence of 12 years imprisonment was not excessive, considering the gravity of the crime and the applicant's criminal history. The Court concluded that the application for an extension of time to appeal against the sentence was without merit, and the sentence would stand as imposed by the Supreme Court.

Orders