R v Morris

[1996] QCA 54

[1996] QCA 054

COURT OF APPEAL

FITZGERALD P
PINCUS JA 
HELMAN J

CA No 17 of 1996

THE QUEEN

v.

ROBERT JOHN MORRIS

BRISBANE

..DATE  22/02/96

JUDGMENT

HELMAN J:  At a trial which began on 16 October 1995 in the Brisbane District Court, the applicant was arraigned on an indictment containing four counts:  breaking and entering a place with intent to commit an indictable offence therein, receiving stolen property, arson, and destroying evidence.
It was alleged that the first two offences were committed on or about 29 May 1991 and the remainder on 29 May 1991.  It was alleged that all offences were committed in Brisbane.  The applicant pleaded guilty to breaking and entering a place and not guilty to the other counts, upon which he was found guilty.  The place broken and entered was the office of the Mitchelton Criminal Investigation Branch of the Commissioner of the Police Service, the stolen property received was the property of the Commissioner, and the charge of arson related to a police station.

On 18 October 1995 the learned trial judge sentenced the applicant to imprisonment on all counts:  three years for breaking and entering, 12 months for receiving, seven years for arson, and three years for destroying evidence.  In addition, on 18 October 1995 his Honour sentenced the applicant to imprisonment for 12 months on a charge of unlawful possession of a motor vehicle with a circumstance of aggravation alleged in an indictment presented after the trial and to which charge the applicant pleaded guilty. 

The sentences imposed by his Honour are to be served concurrently.  His Honour recommended that the applicant be considered for release on parole at the expiration of two years.  His Honour recommended that during the applicant's imprisonment he be given the benefit of any available psychiatric or psychological counselling and treatment. 

The applicant failed to give notice of appeal or notice of application for leave to appeal within the prescribed time,
but by notices dated 8 January 1996 which were received by the Registrar on 17 January 1996 has signified his wish to appeal against his conviction and his sentence on the arson count on two grounds: 

(a)That the trial judge erred in his decision not to pursue the matter of the principal Crown witness's admission to having committed perjury; and

(b)That in all the circumstances the sentence was manifestly excessive.

The ground the applicant relies on in applying for an extension of the time within which he may give notice of appeal and notice of application for leave to appeal is this -

"I am a suffer of Post Traumatic Stress from being brutalised by police.  A specialist Doctor report was presented to the District Court, that clearly documents my condition.  Due to my condition, it has taken a considerable amount of time to effectively regain a normal stress level, and hence, the ability to make a decision on whether to appeal my sentence or not."

The reference to the report of the specialist doctor is a reference to the report of Dr Peter Mulholland dated 6 October 1995 which was placed before the learned trial judge and marked as Exhibit 13.  It records that in Dr Mulholland's opinion the applicant has a chronic post-traumatic stress disorder "which is substantially due to his being assaulted by police in Sydney in December 1991".

The applicant having elaborated his reasons for failing to file the necessary papers in this Court it appears to me that the post-traumatic stress disorder has not been established as the reason for his failure to proceed earlier than he did, and I am not satisfied that the reason suggested by the applicant would be a sufficient basis for granting this application.

On the question of the grounds of appeal, the applicant asserted that the learned trial judge erred by failing not to pursue the matter of the admission by an accomplice who gave evidence against the applicant at his trial that the accomplice had committed perjury.  It appears from what has been placed before us by the applicant and by Mrs Clare on behalf of the Crown that the subject of the accomplice's perjury was dealt with fully at the trial and all the appropriate directions given to the jury on that matter.  There is then in my view nothing of substance in that ground. 
In the course of his oral argument today the applicant referred to his having a defence of alibi but it appears that at the trial he failed to give evidence and failed to pursue that matter, and I see no error in the proceedings arising from that. 

Finally, I come to the question of the suggestion that the sentence was manifestly excessive.  His Honour took into account, it is quite clear, that the applicant had been in pre-sentence custody prior to his conviction, and dealt with that matter by reducing to two years the period after which, his Honour recommended, the applicant be considered for parole.

His Honour said on that subject, referring to the applicant's pre-sentence custody and to the fact that he had for some time been under, as his Honour put it, "virtual house arrest":

"All in all I think this calls for a recommendation that you be considered for parole earlier than you would otherwise be.  I propose to recommend that you be considered for parole at the expiration of two years.  I have reduced that to two years having taken into account the pre-sentence custody.  In other words I make no further order that you have served some time already."

Later his Honour said:

"... as I said there are two ways as I understand it under the Penalties and Sentences Act I can treat the remand custody. One is to actually declare it to be time already served, but I thought it better in the circumstances, neater, to reduce quite considerably the parole period to take that into account."

In the circumstances I see no point of substance in the applicant's ground in relation to his sentence.  I conclude therefore that the application should be refused.

THE PRESIDENT:  I agree.

PINCUS JA:  I agree.  The understanding I have of what the applicant said is that these proceedings were prompted by advice given by a bail clerk.  If so, the advice was foolish advice and the proceedings are in my view vexatious.  I would not have thought there was anything worth saying in favour of this appeal or the application.

THE PRESIDENT:  The order of the Court is appeal dismissed and the application refused.

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