R v McDonald

[2003] QCA 439

SUPREME COURT OF QUEENSLAND

CITATION:	R v McDonald [2003] QCA 439
PARTIES:	R v MCDONALD, Sam
(applicant/appellant)
FILE NO/S:	CA No 243 of 2003 DC No 256 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING  COURT:	District Court at Cairns
DELIVERED EX	13 October 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	13 October 2003
JUDGES:	McMurdo P, Davies JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for extension of time granted 2. Application for leave to appeal against sentence granted 3. The sentence imposed below be varied by substituting suspension after 12 months in lieu of suspension after 18 months
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN GRANTED – where applicant/appellant pleaded guilty to unlawful wounding – where sentenced to three years imprisonment suspended after 18 months – where application for leave to appeal sentence filed out of time – where application for extension of time – whether reasonable prospects of success on the appeal
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – OFFENCES AGAINST THE PERSON – GENERALLY – where extension of time granted – where no previous convictions – where remorseful – where citizen of Papua New Guinea – where illegal immigrant – where to be deported on release – where communities affected by incident had engaged in a formal reconciliation ceremony – whether sentence manifestly excessive – whether ceremony relevant to sentencing
COUNSEL:	J T Bradshaw for the applicant/appellant (pro bono) M J Copley for the respondent
SOLICITORS:	The applicant/appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent

MACKENZIE J: In this matter there is an application for an extension of time in which to seek leave to appeal from a sentence of three years' imprisonment suspended after 18 months in respect of a conviction of unlawful wounding.

The sentence was imposed on the 16th of June 2003. The application was filed on the 25th of July 2003. It was, therefore, only slightly out of time and the Prosecution accepts that the delay has adequately been explained.

The application for extension is not resisted on that ground. However, it is submitted that if an extension of time were granted there would be no reasonable prospects of success on the appeal in the written submissions and that the application should, therefore, be refused.

It was contended, particularly, that the trend of authority may be upwards in respect of offences of this kind rather than at a level demonstrated at around the sentence imposed by the learned sentencing Judge as a head sentence. The applicant was actually sentenced to three years' imprisonment suspended after serving 18 months and time in pre-sentence…