R v Forsythe - [2011] QCA 71

SUPREME COURT OF QUEENSLAND

CITATION:

R v Forsythe [2011] QCA 71

PARTIES:

R
v
FORSYTHE, Bevan Carl
(applicant)

FILE NO/S:

CA No 10 of 2011
DC No 342 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

15 April 2011

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2011

JUDGES:

Fraser JA and Atkinson and Peter Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant was convicted of dangerous operation of a vehicle – where the applicant deliberately but spontaneously drove his vehicle onto the footpath and collided with the complainant – where the applicant’s five year old son was in the vehicle – where the complainant’s physical injuries were relatively minor but he suffers from ongoing depression and anxiety – where the applicant had an appalling traffic history but had entered an early plea of guilty and was otherwise a useful member of the community – where the applicant was sentenced to two years imprisonment with an immediate parole release date – where the applicant was subsequently taken into custody for a new offence – where the applicant contended that he only discovered his right to appeal after obtaining new legal representation – where the applicant argued that he was sentenced on an incorrect factual basis and the sentence was manifestly excessive – where the sentence imposed accorded with that propounded by defence counsel – whether the extension of time should be granted

R v Frame [2009] QCA 9, applied
R v Gusa [1994] QCA 510, considered
R v GV [2006] QCA 394, applied
R v Pearce [2010] QCA 338, cited
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied

COUNSEL:

The appellant appeared on his own behalf
D R Kinsella for the respondent

SOLICITORS:

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

[1] FRASER JA: On 30 April 2010 the applicant was convicted on his plea of guilty of dangerous operation of a vehicle on Reserve Road, Upper Coomera, on 14 November 2008. He was sentenced to two years imprisonment with an immediate parole release date and he was disqualified from holding a driver’s licence for three years.

[2] On 28 January 2011 the applicant filed an application for an extension of time within which to apply for leave to appeal against sentence. On such an application the Court considers whether there is any good reason for the delay in applying and whether it would be in the interests of justice to grant the necessary extension of time: R v Tait [1999] 2 Qd R 667 at 668 [5].

[3] The applicant is presently in custody, apparently because he has been charged with a…

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.

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Details

Case: [2011] QCA 71
Decision Date: 15 April 2011

CaseChat Overview and Summary

In the case of R v Forsythe, the appellant was convicted of dangerous operation of a vehicle after deliberately driving onto a footpath and colliding with a pedestrian. The applicant, who had a poor driving record, had his five-year-old son in the vehicle at the time of the incident. The pedestrian suffered minor physical injuries but ongoing depression and anxiety. The applicant, who had entered an early guilty plea and was considered a valuable member of the community, was sentenced to two years in prison with immediate parole eligibility. After being taken into custody for a new offence, the applicant sought an extension of time to appeal the original sentence, claiming he only became aware of his right to appeal upon obtaining new legal representation. He argued that the sentence was based on incorrect facts and was excessively harsh.

The court had to decide whether the applicant's late notice of appeal could be excused due to his alleged late discovery of his right to appeal and the claimed incorrect factual basis for sentencing. The court considered whether the sentence imposed was manifestly excessive and whether the applicant's poor driving history and the nature of the offence warranted such a lengthy sentence. The court also needed to determine if the applicant's argument about the sentence being based on incorrect facts was valid and whether this justified an extension of time.

The court ruled that the applicant's application for an extension of time to appeal should be denied. The court found that the sentence imposed was consistent with the recommendation made by defence counsel during sentencing. The court was not persuaded that the sentence was manifestly excessive, nor that there were any incorrect facts upon which the sentence was based. The applicant's argument about discovering his right to appeal only after obtaining new legal representation was not sufficient to warrant an extension of time. The court concluded that the applicant's late notice of appeal did not meet the criteria for an extension under the applicable legislation.

Orders

Orders of the court

The application is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Forsythe [2011] QCA 71
PARTIES:	R v FORSYTHE, Bevan Carl (applicant)
FILE NO/S:	CA No 10 of 2011 DC No 342 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	15 April 2011
DELIVERED AT:	Brisbane
HEARING DATE:	11 April 2011
JUDGES:	Fraser JA and Atkinson and Peter Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant was convicted of dangerous operation of a vehicle – where the applicant deliberately but spontaneously drove his vehicle onto the footpath and collided with the complainant – where the applicant’s five year old son was in the vehicle – where the complainant’s physical injuries were relatively minor but he suffers from ongoing depression and anxiety – where the applicant had an appalling traffic history but had entered an early plea of guilty and was otherwise a useful member of the community – where the applicant was sentenced to two years imprisonment with an immediate parole release date – where the applicant was subsequently taken into custody for a new offence – where the applicant contended that he only discovered his right to appeal after obtaining new legal representation – where the applicant argued that he was sentenced on an incorrect factual basis and the sentence was manifestly excessive – where the sentence imposed accorded with that propounded by defence counsel – whether the extension of time should be granted R v Frame [2009] QCA 9, applied R v Gusa [1994] QCA 510, considered R v GV [2006] QCA 394, applied R v Pearce [2010] QCA 338, cited R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied
COUNSEL:	The appellant appeared on his own behalf D R Kinsella for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent