R v Main - [1999] QCA 327

99.327

COURT OF APPEAL
McMURDO P
DERRINGTON J

MACKENZIE J

CA No 226 of 1999
THE QUEEN
v.

MADONNA CAROL MAIN	Applicant
BRISBANE ..DATE 17/08/99

JUDGMENT
170899 T13/MH19 M/T COA194/99
THE PRESIDENT: The applicant pleaded not guilty to one
count of armed robbery which occurred on 2 December 1995.
She was convicted on 6 December 1996 in the District Court
at Brisbane and was sentenced on 17 December 1996 to six
years imprisonment with a declaration that a period of 58
days be deemed to be imprisonment already served under the
sentence.
The applicant now applies for an extension of time within
which to apply for leave to appeal against sentence. The
applicant's notice for an extension of time was filed on
1 July 1999 and therefore was about 18 months out of time.
The explanation she gives for this very great delay was that
although she appealed against her conviction, she was not
aware that she had a right to apply for leave to appeal
against sentence. She thought she had to choose one or the

other.

The applicant appealed against her conviction and this Court
refused that appeal on 6 March 1997. See R v. Main, CA No
569 of 1996, 6 March 1997. She also petitioned the Governor
for a pardon and that matter was referred to this Court by
the Attorney-General pursuant to section 672A of the
Criminal Code. Her appeal against conviction in this manner
was also dismissed. See R v. Main, CA No 387 of 1998,
30 April 1999.

The applicant's explanation for the extensive delay in filing this application is unconvincing. She signed the

2 JUDGMENT

170899 T14/AW20 M/T COA 194/99
notice of appeal against conviction, a form which, of its
very nature, makes the signatory aware of the right of
application for leave to appeal against sentence.

It is far more likely that the reason why there was no application for leave to appeal against sentence lodged in time is because the applicant was advised and accepted that there was no substance in such a claim. The applicant was represented at trial and on her appeal by an experienced counsel.

The applicant claims the sentence imposed was manifestly excessive. She is particularly concerned about her inability whilst incarcerated to assist her son, now aged 15, who is living on the streets and has, at least for a time, become addicted to drugs.

It is impossible not to feel sympathy for the applicant's predicament. She clearly loves her son and seems genuinely concerned for him. From what she says it seems she is unlikely to be paroled because of her prior history which includes a conviction for escaping from lawful custody and an assault upon a prison officer. She believes she will be eligible for release with remissions on 19 March 2001.

The offence was a serious one in that the applicant entered a pharmacy armed with a knife and as a result obtained $120 and five bottles of Methadone. The applicant has…

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 Main

Details

AGLC: R v Main [1999] QCA 327
Case: [1999] QCA 327
Decision Date: 17/08/1999

CaseChat Overview and Summary

In the case of The Queen v. Madonna Carol Main, the applicant appealed against her conviction for armed robbery, which had occurred on 2 December 1995. She was subsequently convicted and sentenced on 17 December 1996 to six years imprisonment, with a declaration that 58 days would be deemed to have been served under the sentence. The applicant sought an extension of time to apply for leave to appeal against the sentence, citing a delay of approximately 18 months. The applicant claimed that she was unaware of her right to appeal against the sentence and believed she had to choose between appealing her conviction or sentence. The primary legal issue before the court was whether the applicant had a valid reason for the extensive delay in filing her application for an extension of time and whether she had a substantial prospect of success in her appeal against sentence.

The court found the applicant's explanation for the delay unconvincing, as she had signed the notice of appeal against conviction, which inherently made her aware of her right to appeal against sentence. The court noted that it was more likely that the applicant had been advised that there was no merit in such a claim and had accepted that advice. The court also considered the seriousness of the offence, the applicant's criminal history, and her lack of remorse. The court concluded that the sentence was not manifestly excessive and was within the acceptable range. The applicant had failed to demonstrate any good reason for the delay in bringing the application for leave to appeal against sentence, nor had she demonstrated any substantial prospects of success in her appeal.

The court refused the application for an extension of time, with all judges concurring. The court encouraged the applicant to ensure impeccable behaviour in prison to attract as much remission as possible and to be a good example to her son upon her release to try to rehabilitate him.

Orders