R v Foy

[2002] QCA 40

[2002] QCA 40

COURT OF APPEAL

DAVIES JA
McPHERSON JA
BYRNE J

CA No 351 of 2001

THE QUEEN

v.

MARK ANTHONY FOY  Applicant

BRISBANE

..DATE 20/02/2002

JUDGMENT

BYRNE J:  In January last year, the applicant was sentenced upon his pleas of guilty to a number of offences of indecency involving children.  There were 12 offences of indecent treatment of a child under 12, and one of indecent treatment of a child under 16.

The circumstances of the offences and the other considerations material to the sentences are discussed in the reasons of Justice Atkinson, with whose reasons Justice Thomas and Mr Justice Helman concurred, in allowing in this Court an appeal by the Attorney-General against the sentences which had been imposed in the District Court upon the footing that those sentences were manifestly inadequate.

In this Court, the sentences imposed in respect of the more serious of the offences were increased from three and a half to four years, the Court concluding that the sentences which had been imposed in the District Court were so inadequate as to be outside the proper range of sentencing discretion.

The applicant filed an application for an extension of time which in form sought an extension of time to appeal against the sentences originally imposed in the District Court. By his subsequent outline and during the course of his oral submissions before us, it has become apparent that the only basis upon which we are now invited to interfere with the sentences is to act pursuant to section 188 of the Penalties and Sentences Act to reopen the sentences imposed by this Court on appeal.

The applicant seeks to enliven the jurisdiction under section 188 by contending that his life has, as he put it in his written submissions, changed somewhat "due to be being enrolled in the sex offender program" and his "showing a positive result".

But it need only be said that the applicant's confidence in his post-sentence rehabilitation is not a matter which can found a successful application pursuant to section 188. For it is plain that such a matter cannot disclose "a clear factual error of substance" affecting the sentence of this Court: see section 188 1(c).

There is therefore no basis for interfering with the sentence. 

In his written outline, the applicant also asserts that he was forced by his barrister to plead guilty.  But this unsubstantiated assertion is beside the point, there being, understandably enough, no application to set aside the pleas of guilty.

The application should therefore be dismissed.

McPHERSON JA:  I agree.

DAVIES JA:  I agree.

McPHERSON JA:  The application is dismissed.

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