R v Om Summary | CaseChat AU

SUPREME COURT OF QUEENSLAND

CITATION:

R v OM [2006] QCA 415

PARTIES:

R
v
OM
(applicant)

FILE NO/S:

CA No 222 of 2006
DC No 151 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

District Court at Townsville

DELIVERED EX TEMPORE ON:

23 October 2006

DELIVERED AT:

Brisbane

HEARING DATE:

23 October 2006

JUDGES:

McMurdo P, Holmes JA and Fryberg 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 in which to appeal
against conviction struck out at applicant's request
2. Application for extension of time in which to appeal
against sentence allowed
3. Extension of time granted

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where applicant pleaded guilty to two counts of attempting to procure a youth for carnal knowledge, one count of indecent treatment of a child under 16, one count of attempted rape and three counts of rape – where complainant child was the applicant's 15-year-old daughter – where applicant was sentenced to eight years imprisonment with a recommendation for parole eligibility after three years – where applicant wishes to abandon her application for an extension of time in which to appeal against conviction but seeks an extension of time in order to apply for leave to appeal against sentence – where application was filed almost three months late – where applicant states that her lawyers told her that she could not lodge an appeal and that she lodged her application soon after becoming aware that she could so appeal – where applicant claims she pleaded guilty after her lawyers advised her that she would get a lighter sentence – whether applicant would have any real prospects of success in her application for leave to appeal sentence were time extended – whether the interests of justice require the granting of an extension of time

Penalties and Sentences Act 1992 (Qld), s 13A

Meissner v The Queen (1995) 184 CLR 132, applied

COUNSEL:

Applicant appeared on her own behalf
R G Martin SC for respondent

SOLICITORS:

Applicant appeared on her own behalf
Director of Public Prosecutions (Queensland) for respondent

THE PRESIDENT: The applicant pleaded guilty in the Townsville District Court on 13 April 2006 to two counts of attempting to procure a youth for carnal knowledge, one count of indecent treatment of a child under 16, one count of attempted rape and three counts of rape. She was sentenced to eight years imprisonment with a recommendation for parole eligibility after three years. She now seeks to apply to extend time to apply for leave to appeal against her sentence only. Her application was about three months late.

By way of explanation, she states in unsworn form that her former solicitors told her it was not possible to lodge an appeal and that she lodged her application soon after she became aware that she was able to appeal.

The respondent very fairly concedes that the sentence imposed on her for these offences does perhaps seem high in the light of her great co-operation with the authorities and her dysfunctional relationship with her co-offender. But any assessment of whether her sentence was manifestly excessive will require the consideration of all the material before the sentencing judge and the preparation of a full appeal record book.

Although her explanation for the late filing of her application for leave to appeal is far from convincing, in all the circumstances and in light of the respondent's concession I am persuaded that the extension of time within which to apply for leave to appeal against sentence should be granted so that the merits of that application can be considered by this Court with the benefit of all relevant material before it.

The applicant has abandoned her application for an extension of time to appeal against conviction, so that part of the application is struck out. But the application for an extension of time to apply for leave to appeal against sentence should, in my view, be granted.

HOLMES JA: I agree.

FRYBERG J: I agree.

THE PRESIDENT: So those are the orders of the Court.

‑‑‑‑‑

The applicant, who pleaded guilty to two counts of attempting to procure a youth for carnal knowledge, one count of indecent treatment of a child under 16, one count of attempted rape, and three counts of rape, appealed against her conviction and sentence. The complainant was her 15-year-old daughter, and she was sentenced to eight years imprisonment with a recommendation for parole eligibility after three years. The applicant sought to abandon her application for an extension of time to appeal against her conviction but wished to extend the time to apply for leave to appeal against her sentence. The application was filed almost three months late, and the applicant claimed that her lawyers told her she could not lodge an appeal, and she filed her application soon after becoming aware that she could so appeal. She also claimed she pleaded guilty after her lawyers advised her that she would receive a lighter sentence.

The legal issues the court had to decide were whether the applicant would have any real prospects of success in her application for leave to appeal her sentence if time was extended and whether the interests of justice required the granting of an extension of time. The court considered the circumstances of the case, including the delay in filing the application, the applicant's reasons for the delay, and the prospects of success of the appeal against sentence. The court also considered whether the applicant had acted promptly once she became aware of her right to appeal against sentence and whether there were any exceptional circumstances that warranted an extension of time.

The court held that the applicant had acted promptly once she became aware of her right to appeal against sentence and that there were exceptional circumstances that warranted an extension of time. The court found that the applicant's delay in filing the application was due to misinformation provided by her lawyers, which was a factor that the court could take into account in deciding whether to grant an extension of time. The court also found that the applicant had a real prospect of success in her application for leave to appeal against sentence, as there were grounds for appeal that were arguable and had some merit. The court held that the interests of justice required the granting of an extension of time, and the application for an extension of time was allowed.

The court made three orders. First, the application for an extension of time in which to appeal against conviction was struck out at the applicant's request. Second, the application for an extension of time in which to appeal against sentence was allowed. Finally, an extension of time was granted.

R v Om

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CITATION:	R v OM [2006] QCA 415
PARTIES:	R v OM (applicant)
FILE NO/S:	CA No 222 of 2006 DC No 151 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence & Conviction)
ORIGINATING COURT:	District Court at Townsville
DELIVERED EX TEMPORE ON:	23 October 2006
DELIVERED AT:	Brisbane
HEARING DATE:	23 October 2006
JUDGES:	McMurdo P, Holmes JA and Fryberg 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 in which to appeal against conviction struck out at applicant's request 2. Application for extension of time in which to appeal against sentence allowed 3. Extension of time granted
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where applicant pleaded guilty to two counts of attempting to procure a youth for carnal knowledge, one count of indecent treatment of a child under 16, one count of attempted rape and three counts of rape – where complainant child was the applicant's 15-year-old daughter – where applicant was sentenced to eight years imprisonment with a recommendation for parole eligibility after three years – where applicant wishes to abandon her application for an extension of time in which to appeal against conviction but seeks an extension of time in order to apply for leave to appeal against sentence – where application was filed almost three months late – where applicant states that her lawyers told her that she could not lodge an appeal and that she lodged her application soon after becoming aware that she could so appeal – where applicant claims she pleaded guilty after her lawyers advised her that she would get a lighter sentence – whether applicant would have any real prospects of success in her application for leave to appeal sentence were time extended – whether the interests of justice require the granting of an extension of time Penalties and Sentences Act 1992 (Qld), s 13A Meissner v The Queen (1995) 184 CLR 132, applied
COUNSEL:	Applicant appeared on her own behalf R G Martin SC for respondent
SOLICITORS:	Applicant appeared on her own behalf Director of Public Prosecutions (Queensland) for respondent