R v Dutton

[2006] QCA 116

SUPREME COURT OF QUEENSLAND

CITATION:	R v Dutton [2006] QCA 116
PARTIES:	R v DUTTON, Damien James (applicant)
FILE NO/S:	CA No 20 of 2006 DC No 661 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	18 April 2006
DELIVERED AT:	Brisbane
HEARING DATE:	18 April 2006
JUDGES:	McPherson and Keane JJA and Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for extension of time dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – Procedure – Application for extension of time within which to appeal against conviction – applicant pleaded guilty to sexual offences committed on four occasions and against five different women and to one charge of wilful damage – second application for extension of time – on first application, applicant failed to provide a satisfactory explanation for the delay and failed to produce material sufficient to justify allowing the appeal or setting aside pleas – nothing new in the second application; rights of appeal exhausted
COUNSEL:	The applicant on his own behalf M J Copley for the respondent
SOLICITORS:	The applicant on his own behalf Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA:  This is an application to extend time for appealing against convictions of sexual offences consisting of one count of rape, one of sexual assault, one of exposing an intellectually impaired person to an indecent act, two counts of indecent acts in a public place, one of attempted rape, one of sexual assault with a circumstance of aggravation and one of going armed so as to cause fear. 

In addition the applicant was charged with and convicted of one count of wilful damage by damaging property in a police station or lock-up.

...

McPHERSON JA:  The accused pleaded guilty to the sexual offences committed on four occasions and against five different women and he also pleaded guilty to the wilful damage charge which occurred, along with the other offences, during a span of time between 29 January and 4 March 2003.

On 15 April 2004 he pleaded guilty and he was sentenced on
16 April to periods of imprisonment totalling in all 10 years.  There was also a declaration that a serious violent offence was involved.

On 11 February 2005 a Court, of which I was a member, allowed the appeal against sentence in relation to two counts.  The effect of that decision was to reduce the term of imprisonment from 10 years to nine and a-half years. 

On 27 October 2005 a differently constituted Court of Appeal refused an application for an extension of time within which to appeal against conviction.  The Court on that occasion delivered reasons in which it fully considered the application that was made by the applicant for an extension of time.

This is now a further application for an extension of time.  The applicant has appeared on it himself.  He says, either directly or indirectly, that he expected a sentence originally of no more than six years imprisonment if he pleaded guilty.  I need hardly say that that is not enough to justify setting aside his guilty pleas or extending the time within which to set aside the convictions and pleas and appeal against his conviction.

His only ground in applying for an extension of time within which to appeal against his conviction, both before the Court of Appeal previously and now, appears to be an assertion that the case against him was flawed because the victims failed to observe tattoos on his body.  In fact on the first three counts in the indictment to which he pleaded guilty he was traced and identified through DNA evidence.

On the previous occasion the applicant did not provide a satisfactory explanation for the delay in appealing against conviction, and moreover he did not produce material sufficient to justify the allowance of the appeal or the setting aside of the guilty pleas.  There appears to be nothing new in the written material filed in support of this application or in the matters that the applicant has raised with us orally.

He has already exhausted his rights of appeal against conviction and sentence and will not be permitted to make an application of this kind again.

The application for an extension of time must be dismissed.

KEANE JA:  I agree.

CHESTERMAN J:  I agree.

McPHERSON JA:  That is the order that is made.

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