R v Marjanac

[2002] QCA 147

[2002] QCA 147

COURT OF APPEAL

de JERSEY CJ
WILLIAMS JA
ATKINSON J

CA No 59 of 2002

THE QUEEN

v.

SAVA SAM MARJANAC

BRISBANE

..DATE 22/04/2002

JUDGMENT

ATKINSON J:  The applicant, Sava Sam Marjanac, was sentenced in the District Court on 13 July 2001 following his plea of guilty on one count of misappropriation of property with circumstances of aggravation and two counts of misappropriation of property.  The learned sentencing Judge sentenced him to two years' imprisonment on each count on the indictment, to be served concurrently.  Her Honour also activated a suspended sentence of 18 months' imprisonment to be served concurrently. 

The applicant seeks an extension of time in which to apply for leave to appeal against his sentence.  The application was lodged on 27 February 2002, just over seven months after he was sentenced and therefore well out of time.  His ground for seeking an extension of time within which to make an application to appeal his sentence is that his solicitors failed to inform him that his sentence could be appealed within one month of the sentencing date.  He says that despite repeated attempts to contact his solicitors and barrister by telephone, no information was forthcoming due to his phone calls not being returned.  This is supported by further unsworn material on the day of the hearing in this Court.

The Director of Prosecutions relies upon an affidavit which has been filed by a senior associate of the law firm who acted for the applicant.  He was the solicitor who had the carriage of the applicant's matters until he was sentenced in the District Court on 13 July 2001.  The firm of solicitors was funded by the Legal Aid Office and was therefore acting as their agent. 

He deposes that the applicant was represented upon his sentence by a barrister who was briefed to appear on his behalf and whom that firm has often briefed.  The senior associate of the law firm spoke to the barrister concerning the applicant's assertion that he was uninformed about his rights to appeal.  The barrister informed the solicitor that she did advise the applicant of his right to appeal and at no stage had she had any contact with the applicant since the date of sentencing;  nor was she aware of messages having been left for her by him. 

The solicitor swears that this is in conformity with the practice that he and the barrister have, that at the conclusion of the sentence if they are of the opinion that the sentence is manifestly excessive in all of the circumstances, he obtain instructions and then, if required, lodges a notice of appeal in accordance with the relevant legislation.  If he and counsel are of the view that the sentence was not manifestly excessive, then their client is advised that if they do wish to appeal they may do so by lodging an application for legal aid which will then be forwarded to the appeals section of the Legal Aid Office Queensland.

Further, the solicitor has perused his electronic mail which is used within the firm to convey telephone messages to one another, and confirms that he has not received any telephone calls from the applicant, nor any person acting on behalf of the applicant, between his sentence on 13 July 2001 and 15 April 2002, the date of his affidavit.  The solicitor deposes that if the applicant had notified his office that he wished to appeal his sentence, then an application for legal aid would have been sent to him at the correctional centre where he was an inmate and, when received, would have been forwarded to the Legal Aid Office.

I am not satisfied the applicant was not informed about his rights to appeal his sentence.  I am satisfied he did not make any telephone calls to his solicitors or his barrister to discuss his case.  It is unlikely, when one examines the sentence imposed, that the applicant was advised that his sentence was manifestly excessive as plainly it is not.  

The offences the subject of the present application were committed between 11 December 2000 and 9 January 2001 when the applicant dishonestly obtain goods from businesses by using his employer's credit accounts with those businesses.  He later pawned those goods to a variety of pawnbrokers.  The extent of the loss concerned in this group of offences was about $14,500.  He committed these offences, for which he was sentenced to two years' imprisonment, while he was subject to a sentence of imprisonment for 18 months which had been wholly suspended for a period of three years.  That sentence had been imposed on 12 April 1999. 
The previous offences were seven counts of false pretences, one count of incurring a debt by false pretences, one count of misappropriation of property with a circumstance of aggravation.  It can be seen they were offences of a similar kind.  In addition to being sentenced to 18 months' imprisonment wholly suspended for a period of three years, the applicant was ordered to pay compensation of $8,058.55 and given four years within which to pay that amount.  At the time he appeared for sentencing on the present matter on 13 July 2001 he had not yet paid any of that money.

In addition to the offences to which I have referred, the applicant had previously been convicted on 24 May 1995 for similar offences of false pretences and stealing.  On that occasion he'd been sentenced to 18 months' probation.  On 2 December 1998 he appeared in Court for breach of probation order.  The offences for which he was sentenced to 18 months' imprisonment wholly suspended for a period of three years were committed in breach of that probation order.

A recitation of his history is sufficient to show that it is unlikely that the sentencing Judge would have wholly or partly suspended any sentence she imposed upon him, and certainly not to do so was not an error.  The learned sentencing Judge in sentencing him to two years' imprisonment recognised that he'd cooperated with the police and made full admissions and had entered an early plea, and told him that that would be reflected in the sentence.  There is no error demonstrated in the sentence;  nor could it be said to be manifestly excessive.

In the circumstances, the application for extension of time to lodge an application for leave to appeal against sentence should be refused. 

THE CHIEF JUSTICE:  I agree.

WILLIAMS JA:  I agree.

THE CHIEF JUSTICE:  The application is refused.

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