R v Foy

[2004] QCA 86

SUPREME COURT OF QUEENSLAND

CITATION:

R v Foy [2004] QCA 86

PARTIES:

R
v
FOY, Mark Anthony
(applicant)

FILE NO/S:

CA No 375 of 2003
DC No 62 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

23 March 2004

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2004

JUDGES:

Davies and Williams JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for extension of time within which to apply for leave to appeal against conviction dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - TIME FOR APPEAL - EXTENSION OF TIME - GENERAL PRINCIPLES AS TO GRANT OR REFUSAL - where applicant sought extension of time in which to appeal his conviction - where applicant entered guilty pleas for offences of indecency against children - where applicant alleges that his barrister forced him to change his plea to guilty prior to trial - whether extension of time should be granted

Penalties and Sentences Act 1992 (Qld), s 188

Meissner v R (1995) 184 CLR 132, cited

COUNSEL:

Applicant appeared on his own behalf
M J Copley for respondent

SOLICITORS:

Applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for respondent

DAVIES JA:  The applicant seeks an extension of time within which to appeal against his conviction entered after a plea of guilty on 22 January 2001 for 12 offences of indecent treatment of a child with a circumstance of aggravation and one of indecent treatment of a child.  The offences occurred in October 1999 and February 2000.

After a full hand up committal the applicant pleaded guilty to these offences which involved indecently dealing with a total of nine children.  He encountered the children in parks.  They were apparently unknown to him before then.

The applicant was sentenced in the District Court on 23 January 2001 to three and a half years imprisonment.  However on 31 May 2001 this Court allowed an appeal against that sentence by the Attorney-General, increasing the applicant's term of imprisonment to one of four and a half years.

The full and unsavoury circumstances on which the plea of guilty was based are set out in the judgment of Justice Atkinson in this Court on that occasion.  In increasing that sentence this Court thought that the applicant had no real prospects of rehabilitation.  But the sentence imposed by this Court was based on the fact that the sentence imposed in the District Court was outside the range of sentences imposed for similar offences.

In that appeal the applicant was represented by Mr Chowdhury of counsel instructed by Legal Aid.  There was apparently no suggestion at that stage from the applicant that he wished his plea of guilty to be set aside on the grounds which he now seeks to argue.

Some time after that decision was given the applicant filed an application for extension of time within which to appeal against the sentences originally imposed in the District Court. On this application which was heard by this Court on 20 February 2002, he appeared for himself. His outline and oral submissions made it clear that the only basis upon which this Court was invited to interfere with the sentences was to act pursuant to s.188 of the Penalties and Sentences Act 1992 in order to reopen the sentences imposed by this Court on appeal. The applicant's submissions were based on the fact that due to his being enrolled in a sex offenders' program and showing a positive result, his life had changed somewhat.

In refusing that application, this Court on 20 February 2002 said that none of this was a matter disclosing a clear factual error of substance affecting the sentence of this Court so as to attract the operation of s.188. However it should be noted that apparently for the first time, the applicant in his written outline asserted that he was forced by his barrister to plead guilty. This was as the Court then pointed out an unsubstantiated assertion and there was no application to set aside the plea of guilty.

Now nearly two years after that decision and more than three years after his conviction and sentence in the District Court, the applicant has sought to set aside his plea of guilty on the basis that, as he put it, his barrister forced him to change his plea of guilty only days before the trial, saying that he could not act for the applicant unless he pleaded guilty.  That allegation remains unsubstantiated by any sworn evidence.

However, nothing which the applicant has said today unsworn in making his submissions would support that contention.  All that he asserted in effect today was that he was advised by his counsel that if he pleaded guilty to all of the offences, he would receive some discount for the fact that he pleaded guilty to all offences.  That was no doubt undoubtedly correct advice which he reluctantly accepted.

This was not a case, in my opinion, that came within the principles in Meissner (1995) 184 CLR 132 which requires the Court to set aside a plea, by such a person, that is not entered in the exercise of a free choice in the interest of the person entering the plea. That was not the case here. Although the applicant was as he said reluctant, he accepted that advice and entered the plea on the basis of it which as I have already said was quite sensible advice. What seems to be his concern was that having got a substantial discount and a sentence of three and a half years that this Court increased that sentence to one of four and a half years.

That does not establish in my opinion a basis for setting aside the plea for the reasons I have already given.  The application should be dismissed.

WILLIAMS JA:  I agree.

PHILIPPIDES J:  I agree.

DAVIES:  The application is dismissed.

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