R v Nabhan

[2007] QCA 154

SUPREME COURT OF QUEENSLAND

CITATION:	R v Nabhan [2007] QCA 154
PARTIES:	R v NABHAN, Jim (applicant)
FILE NO/S:	CA No 38 of 2007 SC No 247 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	16 May 2007
DELIVERED AT:	Brisbane
HEARING DATE:	16 May 2007
JUDGES:	Williams, Jerrard and Holmes JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for extension of time within which to appeal against conviction dismissed
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL-PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant pleaded guilty to various drug related offences –where applicant later sought to withdraw his plea – where lapse of time of over six months in making application – where application denied – where applicant then sentenced – whether any prospects of success in appealing against conviction – whether an extension of time within which to appeal against conviction should be granted
COUNSEL:	The applicant appeared on his own behalf B G Campbell for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA:  This is an application for an extension of time to appeal against conviction. 

The applicant and another was charged on indictment 247 of 2006 that between 1 May 2002 and 30 October 2002 at Brisbane and elsewhere he carried on the business of unlawfully trafficking in dangerous drugs, namely cocaine, methylamphetamine 3,4-methylenedioxymethamphetamine and gamma hydroxybutyric acid.  He was arraigned before Mackenzie J on 21 March 2006 when he was represented by Mr M Johnson of counsel instructed by Price Roobottom. He pleaded guilty to the charge and the allocutus was then administered.  His counsel then agreed to an adjournment on the basis that further material relevant to the issue of sentence was being considered.  The applicant was remanded in custody.

Then on 31 March 2006 Mackenzie J gave Mr Johnson of counsel and Price and Roobottom leave to withdraw as legal representatives for the applicant. 

Then the applicant sought to withdraw his plea of guilty, and that application was heard by Atkinson J. The applicant was represented on that hearing by Mr P E Smith of counsel, instructed by Fisher Dore.  For detailed reasons published on 11 October 2006 the application to withdraw the plea was dismissed.  The reasons disclose that the applicant had signed extensive documentation in the presence of his former solicitor indicating that he had read the relevant documentation and was instructing his then legal representatives that he wished to plead guilty. 

The matter was then listed before Moynihan J on 29 January 2007.  On that date the applicant pleaded guilty to a charge on indictment 552 of 2006 that he had unlawful possession of the dangerous drug methylamphetamine and of the dangerous drug 3,4-methylenedioxymethamphetamine.  He was again represented by Mr P E Smith of counsel and pleaded guilty.  Sentence was then adjourned until the next day, 30 January 2007.  On that day Moynihan J heard submissions from Mr P E Smith with respect to sentence on all counts to which the applicant had pleaded guilty.  The applicant was sentenced to 13 years imprisonment on the trafficking charge and 12 months imprisonment on the possession charges, the sentences to be served concurrently.

By notice of appeal dated 26 February 2007, and faxed to the Court on that day, the applicant indicated a desire to appeal to the Court against his conviction and his sentence.  Three grounds were set out in that document:

• "I plead guilty to something I was not sure of. 
• I do not believe the length of sentence was suitable   for a first time offence. 
• I did not know the person who was trafficking the 7 kg of cocaine, even though I was charged with it."

The first and third of those grounds relates to the issue of conviction. 

The notice is clearly within time so far as an application for leave to appeal against sentence is concerned and that application could proceed to a hearing based on the second of the quoted grounds.

It seems clear from the grounds and the outline lodged by the applicant that he is seeking to appeal against his conviction on the charge contained in indictment 247 of 2006.  As already indicated, that plea of guilty was entered on 21 March 2006 and leave to withdraw it was refused after a substantive hearing on 11 October 2006.  In those circumstances the applicant is well out of time for an appeal against conviction.   

Where the appeal against conviction was included in an application to appeal against sentence lodged within time so far as the sentence aspect was concerned the Court would ordinarily grant leniency and be prepared to extend the time to appeal against conviction if any merit was established.

Not only was the  plea of guilty the subject of a contested hearing before Atkinson J in October 2006, but when the sentence proceeded before Moynihan J in January 2007 it did so on the basis of a statement of facts tendered by the prosecution which was not challenged by the applicant's then legal representatives. 
The first ground, ("I plead guilty to something I was not sure of") was extensively canvassed before Atkinson J and was then rejected. 

The statement of facts disclosed that the applicant had been under National Crime Authority surveillance and a number of telephone calls involving him were intercepted and recorded.  The applicant was involved in the trafficking with his co-accused Kostapoulos.  Ultimately there was a seizure of cocaine.  The statement of facts dealt at some length with the applicant's involvement with cocaine.  There were a series of telephone intercepts relating to the applicant's dealing with that drug.  On the basis of the statement of facts, five kilograms of seven kilograms of cocaine found on the man Porter when he was apprehended was destined for the applicant. 

Given the applicant's plea of guilty on 21 March 2006, the sacking of his then lawyers on 31 March 2006, the failed attempt to withdraw his plea of guilty and the fact that his fresh legal representatives did not challenge the statement of facts tendered at sentence, demonstrates that the applicant has no prospects of success in appealing against conviction.

In the circumstances, the application for an extension of time within which to appeal against conviction should be dismissed.  That leaves of course the application for leave to appeal against sentence which can be listed for hearing in due course. 

JERRARD JA:  I agree.

HOLMES JA:  I agree.

WILLIAMS JA:  Well the order of the Court is that the application for an extension of time within which to appeal against conviction is dismissed.

Mr Nabham, you will be notified by the Registry in due course when your application for leave to appeal against sentence is listed.  If you are appearing on your own behalf on that occasion then it will be important that you bring along with you to Court all papers relevant to your argument.  Do you understand that?  All right.  Well the Court will now adjourn until the next matter is ready to proceed.

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