R v Pallas

[2001] QCA 76

[2001] QCA 76

COURT OF APPEAL

McMURDO P
WILLIAMS JA
WILSON J

CA No 74 of 2000

THE QUEEN

v.

GILLES ROGER PALLAS  Applicant

BRISBANE

..DATE 05/03/2001

JUDGMENT

THE PRESIDENT:  The applicant, who is not legally represented and makes this application by way of telephone link from the Townsville Correctional Centre, applies for an extension of time within which to appeal against his sentence.

If he were successful he would argue that the cumulative nature of his sentence was first, unlawful, and second, manifestly excessive. He also complains that he is not legally represented as he is an indigent prisoner and legal aid for this application has been refused. He relies upon Dietrich v. The Queen (1992-93) 177 CLR 292 as giving him a right to legal representation.

The history of this matter is as follows.  The applicant was sentenced in the Cairns Supreme Court on 20 March 2000 on 20 offences contained in two indictments.  The 18 count indictment contained five counts of stealing, one count of entering a vehicle with intent, one count of attempted entering of premises with intent, two counts of unlawful damage, two counts of house breaking, one count of entering premises with intent, one count of unlawful use of a motor vehicle with circumstances of aggravation, four counts of break and enter premises and stealing and one count of unlawful use of a motor vehicle.

On the two count indictment the applicant was sentenced to concurrent terms of imprisonment for four years for unlawful wounding and 10 years for unlawful wounding with intent.  In respect of the 18 count indictment the applicant was sentenced to a total term of three years' imprisonment cumulative upon the sentences imposed on the two count indictment.

The applicant has previously sought leave to appeal in respect of the sentences imposed in the Cairns Supreme Court on 20 March 2000 and was legally represented.  That application was refused.  See R v. Pallas, CA No 74 of 2000, 16 June 2000.

The detailed reasons given by this Court indicate that the 18 count indictment involved the stealing of property valued at over $1 million and the stealing of a substantial quantity of explosives presumably for use by the applicant in his criminal activities.  The applicant had a substantial prior criminal history covering three States, although it seems the full extent of the applicant's criminal history was not placed before the sentencing Judge but was before this Court.

The offences on the two count indictment involve the shooting of a police officer who was attempting to investigate stolen property which had been traced to the applicant's premises.  The police officer was wounded in the right leg and during the course of the struggle was attacked by the applicant with a piece of wood or a rock striking him several times on the head.

The applicant then struck the police officer several more times around the head with a pistol and escaped leaving the police officer wounded and bleeding in a creek. 

This Court stressed that the applicant knew, or suspected, that the police had come to apprehend him for offences of dishonesty and cold bloodedly armed himself with an automatic pistol apparently with a view to using it to aid his escape. 

The applicant's final attack on the police officer was extremely violent and involved beating him severely and leaving him, possibly even to die.  The applicant did this whilst attempting to escape apprehension by police.  This Court also noted that the learned sentencing Judge specifically took into account the plea of guilty and the applicant's lack of prior convictions for offences of violence.

This Court concluded that in all the circumstances the totality of 13 years' imprisonment was plainly within the appropriate sentencing range and refused the application for an extension of time.

Although the notice of application for leave to appeal in
CA No 74 of 2000 related only to the two count indictment the grounds of appeal specifically claimed that the total sentence of 13 years' imprisonment was manifestly excessive.

It is plain that this Court considered the appropriateness of the total sentence imposed on both indictments in refusing the application.  The applicant has produced no new material to justify his application for an extension within which to appeal against his sentence. 

He claims to have believed that his total term of imprisonment was 10 years and for that reason did not lodge an appeal within time.  He says it was not until mid- November 2000 when he received the sentencing Judge's remarks that he first became aware of the true effect of the sentence that was imposed.  This seems implausible when his earlier application for an extension of time within which to appeal against his sentence was heard on 16 June 2000.  It seems far more likely that he received this Court's reasons in CA No 74 of 2000 at that time.

The confusion may have arisen out of the order of the Court of Appeal following this Court's refusal of the application for leave to appeal against sentence, which refers only to the two count indictment.  That is because, as has been noted, the application for leave to appeal against sentence refers only to the two count indictment.

As I have already stated, however, it is plain that this Court considered the total sentence imposed on both indictments in refusing the application for leave to appeal against sentence.

As the matter has effectively been dealt with on its merits by this Court and this applicant has failed to demonstrate any proper reason for an extension of time within which to appeal against sentence, I would refuse the application for an extension of time within which to appeal against sentence.

WILLIAMS JA:  In my view, the Court on hearing appeal 74 of 2000 gave full consideration to the totality principle of sentencing.  In my view, all the issues which the applicant now wishes to raise were considered by the Court on that occasion and finally dealt with.  The application should be refused.

WILSON J:  I agree that the application should be dismissed.

THE PRESIDENT:  The order is the application is refused.

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