R v Horne - [2011] QCA 282

SUPREME COURT OF QUEENSLAND

CITATION:

R v Horne [2011] QCA 282

PARTIES:

R
v
HORNE, Phillip Vernon
(applicant)

FILE NO/S:

CA No 204 of 2011
DC No 363 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

11 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

5 October 2011

JUDGES:

Muir and Fraser JJA and Margaret Wilson AJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for an extension of time to appeal against conviction and apply for leave to appeal against sentence is refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant pleaded guilty to five counts of using a carriage service to harass – where the applicant was sentenced on each count to 12 months imprisonment, to be released forthwith upon giving security by recognizance in the sum of $1,000 conditioned that he be of good behaviour for five years, and two years probation – where the proposed appeal and application for leave to appeal were only a few days out of time – where the applicant was represented by a lawyer and received legal advice prior to entering his pleas of guilty – where the applicant had been convicted of similar offences in the past – whether an extension of time should be granted

Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, cited
R v Carkeet [2009] 1 Qd R 190; [2008] QCA 143, cited
R v GV [2006] QCA 394, cited
R v Mundraby [2004] QCA 493, cited
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied

COUNSEL:

The applicant appeared on his own behalf
P C Floyd for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Commonwealth) for the respondent

MUIR JA: I agree with the reasons of Fraser JA and with the order he proposes.

FRASER JA: On 8 September 2010 the applicant pleaded guilty in the District Court to five offences of using a carriage service to harass, contrary to s 474.17(1) of the Criminal Code (Cth). He pleaded not guilty to an offence contained in a separate indictment and that offence was listed for trial. Subsequently a nolle prosequi was entered in respect of that separate indictment.

On 10 June 2011 the applicant was sentenced on each of the five counts to which he had pleaded guilty to 12 months imprisonment, to be released forthwith upon giving security by recognizance in the sum of $1,000 conditioned that he be of good behaviour for five years and that he will during a period of two years be subject to the supervision of a probation officer.

On 13 July 2011 the applicant filed an application for an extension of time within which to appeal or apply…

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.

Continue reading R v Horne

Details

AGLC: R v Horne [2011] QCA 282
Case: [2011] QCA 282
Decision Date: 11 October 2011

CaseChat Overview and Summary

In the case of R v Horne, the applicant, having previously been convicted of similar offences, pleaded guilty to five counts of using a carriage service to harass. Each count resulted in a sentence of 12 months imprisonment, which was to be released forthwith upon providing security by recognizance in the sum of $1,000, with the condition that the applicant be of good behaviour for five years and two years probation. The applicant sought an extension of time to appeal against his conviction and to apply for leave to appeal against his sentence, which he filed only a few days beyond the permitted timeframe. The applicant was represented by a lawyer and had received legal advice before entering his guilty pleas.

The primary legal issue before the court was whether an extension of time should be granted for the applicant to appeal his conviction and sentence. The court considered the factors relevant to granting an extension, including the applicant's representation by a lawyer, the applicant's prior convictions for similar offences, and the timing of the application. The court had to balance the need to adhere to procedural rules with the potential merits of the applicant's case. The court also examined whether the delay in filing the application was due to any fault or neglect on the part of the applicant or his legal representative.

Upon consideration of the relevant factors, the court found that the application for an extension of time was filed only a few days outside the permitted timeframe. The court emphasised the importance of adhering to the rules of procedure, especially in criminal matters where timely justice is crucial. The court noted that the applicant had been represented by a lawyer and had received advice prior to entering his pleas of guilty, which did not alleviate the need to comply with the legal deadlines. Consequently, the court refused the application for an extension of time, thereby upholding the conviction and sentence as determined by the lower court.

Orders

Orders of the court

The application for an extension of time to appeal against conviction and apply for leave to appeal against sentence is refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Horne [2011] QCA 282
PARTIES:	R v HORNE, Phillip Vernon (applicant)
FILE NO/S:	CA No 204 of 2011 DC No 363 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence & Conviction)
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	11 October 2011
DELIVERED AT:	Brisbane
HEARING DATE:	5 October 2011
JUDGES:	Muir and Fraser JJA and Margaret Wilson AJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for an extension of time to appeal against conviction and apply for leave to appeal against sentence is refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant pleaded guilty to five counts of using a carriage service to harass – where the applicant was sentenced on each count to 12 months imprisonment, to be released forthwith upon giving security by recognizance in the sum of $1,000 conditioned that he be of good behaviour for five years, and two years probation – where the proposed appeal and application for leave to appeal were only a few days out of time – where the applicant was represented by a lawyer and received legal advice prior to entering his pleas of guilty – where the applicant had been convicted of similar offences in the past – whether an extension of time should be granted Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, cited R v Carkeet [2009] 1 Qd R 190; [2008] QCA 143, cited R v GV [2006] QCA 394, cited R v Mundraby [2004] QCA 493, cited R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied
COUNSEL:	The applicant appeared on his own behalf P C Floyd for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Commonwealth) for the respondent