R v Havers

[1999] QCA 320

99.320

COURT OF APPEAL
PINCUS JA
McPHERSON JA

MACKENZIE J

CA No 217 of 1999
THE QUEEN
v.

JO-ANNE HAVERS Applicant

BRISBANE
..DATE 16/08/99
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MACKENZIE J: This is an application for extension of time
within which to appeal filed on 23 June 1999 some four
months out of time.

The applicant was re-sentenced on 19 February 1999 following breaches of community-based orders for nine offences of supplying heroin, one of supplying cannabis, three of possession of cannabis and one count of possession of things used in connection with drug offences.

The offences occurred over a period of time and she was sentenced originally on 7 August 1997 to an intensive correction order of 12 months duration on one count, 240 hours community service on another and probation orders for three years on the rest.

The offences which breached the community-based orders were possession of heroin, possession of cannabis and possession of implements committed on 10 April 1998, some eight months or so into the period of the community-based orders.

It has to be said frankly, and I do not think that the
applicant disagrees with this, that her performance of the
community service and other obligations were unsatisfactory
although she had performed a relatively small number of
hours within the 12 months duration of the order and an
extension which she was granted.
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The failure, according to the reports on the file appears to
have been due to her inability to break away from her drug-
related life style and other problems. This was apparently,
from the record that we have been provided with, the reason
why the sentencing Judge had given her an opportunity to
undergo supervision rather than imprisonment in the first
instance.

She had previous convictions on separate occasions for supply and possession of dangerous drugs respectively. The reasons for the delay in filing the application for leave to appeal which has made the present application necessary are explained in handwritten documents that she has provided us with today.

In effect, she says that when she first went into prison, which was the first time she had been incarcerated, she was intimidated by the system with respect to her rights, responsibilities and legal procedures and it was only when she discussed with a new counsellor the question of appealing that she began the process.

At the time she had that conversation the 28 days to lodge
the application for leave to appeal had lapsed and
subsequently in early May she spoke to legal aid
representatives. She inquired about whether an appeal had
been lodged and whether legal aid had been considered. She
was told eventually, although not immediately, that that had
not happened.
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She says that she wishes to pursue the appeal for reasons principally related to medical and psychiatric evaluation reports concerning her mental and physical health which had not been provided to the sentencing Judge and she also wanted to get social worker, Family Services officers and other reports of that nature in relation to her personal and family background information, which were not available at the time of sentencing. She says that the absence of that material prejudiced her in the presentation of the submissions upon sentence.

The reality in cases of this kind where someone has unfortunately failed to live up to the requirements of a community-based order is that counsel is generally left in a position where they can say very little.

The other aspect of the matter which was touched upon in her
oral submissions and has now been supplemented by a copy of
the transcript of the proceedings before the Judge was that
she had not appeared on the morning when the sentence was
listed, although her co-accused had. A medical certificate
was presented and the sentencing Judge took the view that it
was appropriate that a warrant issue. She then, having
learnt of that, came to Court while the sentencing
proceedings were still under way and presented herself and
was dealt with forthwith. It is in that context that her
concern about the insufficiency of the preparation of the
defence has arisen.
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As I have said a copy of the transcript of the proceedings has been now made available to us and I must say for my part on reading it, it does not appear to me that the matter would have been advanced significantly had further time been given. In particular, as I have said also it seems to me that counsel in the situation which her counsel found himself would have had very little room to add to what had already been said given all the circumstances that existed.

The sentence of three years imposed by the learned sentencing Judge is, in my view, one which is certainly within range and having regard to the number of offences and the protracted period over which they occurred is, in my view, not an inappropriate sentence and in all of the circumstances, having regard to the fact that there appears to be no useful purpose served by extending the period in which to apply for leave to appeal, I would refuse the application.

McPHERSON JA: I agree. The sentence imposed was not
excessive. Judging from what we have seen and heard of the
applicant, she has qualities which would enable her to make
a success of her life if only she can break her addiction to
dangerous drugs. That is something that she now has to face
and, although the application must, in my view, be
dismissed, one can only hope that she will succeed in the
attempt to resolve her problems.
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PINCUS JA: I agree.

McPHERSON JA: The application to extend the time within which to appeal is dismissed.

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