R v Lemmo - [2015] QCA 105

[2015] QCA 105

COURT OF APPEAL

HOLMES JA
ANN LYONS J
BURNS J

CA No 259 of 2014
DC No 541 of 2011
DC No 312 of 2012
DC No 313 of 2012
DC No 147 of 2013

THE QUEEN

LEMMO, Jason Vincent Applicant

BRISBANE

THURSDAY, 18 JUNE 2015

JUDGMENT

ANN LYONS J: By application filed on the 2nd of October 2014, the applicant seeks an extension of time within which to appeal against his sentence and convictions.

On 25 November 2011, a 19 count indictment was presented in the District Court at Beenleigh, (number 541 of 2011) in relation to offences of armed robbery, armed robbery with violence, armed robbery with wounding and attempted armed robbery, all alleged to have been committed between 20 May and 16 July 2009.

On 30 August 2011, an ex-officio indictment (number 312 of 2012) was then presented in the District Court at Townsville charging the applicant with seven counts of armed robbery alleged to have been committed between 10 June and 2 August 2011. On 28 September 2012, the applicant pleaded guilty in the District Court at Townsville to all counts on that indictment and to three summary offences that were also committed during the period covered by the ex-officio indictment.

The ex-officio indictment and related summary offences were then transferred to the District Court at Beenleigh so that the sentence could proceed in relation to the summary offences and indictments 541 of 2011 and 312 of 2012.

On 21 November 2012, the applicant pleaded guilty in the District Court at Beenleigh in relation to 12 counts on the 19 count indictment 541 of 2011, namely, seven counts of armed robbery, three counts of armed robbery with personal violence, one count of armed robbery with wounding and one count of attempted armed robbery. The Crown then entered a nolle prosequi in relation to the other seven counts on indictment 541 of 2011.

On 27 May 2013, the applicant was sentenced. In respect of every count on both indictments he was sentenced to 12 years imprisonment, other than on count 15 on indictment 541 of 2011, which was attempted armed robbery, in respect of which he was sentenced to 10 years imprisonment. In respect of all counts on both indictments, a declaration was made that he was convicted of a serious violence offence. Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), it was further declared that 657 days spent in pre-sentence custody between 9 August 2011 and 26 May 2013 was deemed time already served under the sentences.

The applicant has previously applied to this Court for an extension of time within which to appeal against conviction and for leave to appeal against sentence. These applications were heard on the 14 February 2014. On 25 February 2014, the Court, consisting of Muir and Gotterson JJA and Mullins J, delivered judgment and ordered that both the application for an extension of time to appeal against the conviction and the application…

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 Lemmo

Details

AGLC: R v Lemmo [2015] QCA 105
Case: [2015] QCA 105
Decision Date: 18 JUNE 2015

CaseChat Overview and Summary

In the matter of R v Lemmo, the applicant, Jason Vincent Lemmo, sought an extension of time within which to appeal against his convictions and sentence. The case was heard by Holmes JA, Ann Lyons J, and Burns J at the Court of Appeal. The applicant was convicted of multiple counts of armed robbery and related offences in 2012 and 2013. He was sentenced to 12 years imprisonment for each count, except for one count of attempted armed robbery, for which he was sentenced to 10 years imprisonment. The applicant had previously sought to appeal against his convictions and sentence, but these applications were dismissed by the Court in 2014.

The primary legal issue in this case was whether the Court had jurisdiction to hear the applicant's further application for an extension of time to appeal against his conviction and sentence. The applicant sought to raise the same issues as previously considered and dismissed, including his claims about his capacity when he pleaded guilty and the coercion of his lawyers. The Court noted that the applicant had not provided any sworn evidence or other documentary support for these assertions, and the application had to fail in the absence of such evidence. The Court also considered the issue of whether there was any jurisdiction to entertain a further application for leave to appeal against sentence where leave to appeal against sentence had been previously refused. The Court found that there was no jurisdiction to hear the application for leave to appeal against sentence, as the general rule in Grierson applied.

The Court dismissed the application for an extension of time to appeal against conviction and sentence. The Court held that the applicant had already had the merits of both his conviction appeal and appeal against sentence fully assessed by the Court. The Court also found that the applicant's claims of being tricked by his legal representatives into pleading guilty to charges of which he was not guilty were unsupported by evidence. The Court concluded that the application was futile, and there was no basis for asserting a denial of procedural fairness. The Court further held that the application for an extension of time to appeal against conviction and sentence must fail for the reasons given in the earlier application.

Orders