R v. Johnson

[2007] QCA 323

SUPREME COURT OF QUEENSLAND

CITATION:	R v Johnson [2007] QCA 323
PARTIES:	R v JOHNSON, Russ Douglas (applicant)
FILE NO/S:	CA No 151 of 2007 SC No 5 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	Supreme Court at Mt Isa
DELIVERED EX TEMPORE ON:	4 October 2007
DELIVERED AT:	Brisbane
HEARING DATE:	4 October 2007
JUDGES:	Keane and Holmes JJA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for extension of time granted to 3 July 2007
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN GRANTED – where applicant convicted on two counts of trafficking – where sentence affected by error in that different parole eligibility dates fixed on each count – where no good reason shown for delay in filing application for leave to appeal against sentence –whether extension of time should be granted
COUNSEL:	The applicant appeared on his own behalf T A Fuller for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent

KEANE JA:  On the 28th of March 2007 the applicant was sentenced following his plea of guilty to an ex officio indictment in respect of one count of trafficking in the dangerous drug methylamphetamine between 1 January 2001 and
3 April 2006 and one count of trafficking in the dangerous drug cannabis sativa between 1 January 2001 and 3 April 2006.

On the first count he was sentenced to nine years[ imprisonment with a parole eligibility date of 27 March 2009.  On the second count he was sentenced to a concurrent term of seven years' imprisonment with a parole eligibility date of 27 June 2008.  A period of presentence custody of 351 days was declared as time already served under these sentences.

It is conceded by the respondent that under section 160C of the Penalties and Sentences Act 1992 Queensland only one parole eligibility date should have been fixed. The applicant seeks an extension of time within which to seek leave to appeal against his sentence. Whether good reason can be shown for the purposes of an extension of time usually depends upon a satisfactory explanation of the applicant's delay and the demonstration of an arguable basis to challenge the decision in question.

The applicant was some three months out of time to seek to appeal when he first attempted to do so apparently on 3 July 2007.  His explanation for his delay is not particularly satisfactory in that he seems to suggest that without his giving instructions to his former lawyers to commence appeal proceedings, his former lawyer should have taken steps on his behalf in that regard.  Equally lacking in compelling force is his suggestion that he was unaware of his right to seek to appeal against his sentence. 

Nevertheless, having regard to the circumstance that the sentence which is imposed is a sentence of nine years' imprisonment and to the concession rightly made by the respondent as to the learned sentencing Judge's error in fixing two parole eligibility dates, it is, I think, necessary in the interests of justice to grant an extension of time to ensure that a proper sentence is lawfully passed on the applicant.

The respondent's concession means that the sentence imposed on the applicant is affected by an error and the sentence which is imposed is, a I have said, a substantial one.  Even though the error may have no ultimate impact upon the substance of the sentence imposed on the applicant, the error means that if the sentence is set aside it will fall to this Court to re-sentence the applicant.

The applicant should have the opportunity to be heard in relation to this process of re-sentencing.  The grant of an extension of time can be expected to ensue that legal aid will be made available to the applicant to ensure that his opportunity to be heard is a meaningful one.

I would therefore grant an extension of time to file an application for leave to appeal against sentence until 3 July 2007.

HOLMES JA:  I agree.

JONES J:  I agree.

KEANE JA:  The order of the Court will be as we have said,
Mr Johnson, therefore you have your extension of time.

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