R v PBF - [2019] QCA 217

[2019] QCA 217

COURT OF APPEAL

FRASER JA
BUSS, AJA
HENRY J

CA No 193 of 2019
DC No 2755 of 2017

THE QUEEN

PBF Applicant

BRISBANE

THURSDAY, 17 OCTOBER 2019

JUDGMENT

HENRY J: On 13 February 2019, the applicant pleaded guilty to a charge of grievous bodily harm. He was sentenced to four years imprisonment with parole eligibility fixed after 15 months. The learned sentencing judge stated that sentence was reduced pursuant to s 13A, Penalties and Sentences Act 1992. His Honour stated the sentence he would otherwise have imposed – the “but for” sentence – was four and a half years imprisonment with parole eligibility fixed after 20 months.

On 23 July 2019, the applicant filed an application for an extension of time within which to apply for leave to appeal his sentence on the ground of manifest excess. The application for extension of time is necessary because the applicant’s filing was over four months beyond the time within which an application for leave to appeal sentence should be filed.

In such an application, the proper approach is to consider whether the applicant has shown good reason to account for the delay and whether it is in the interests of justice to grant the extension, having regard, inter alia, to the perspective strength of the proposed appeal – see R v Tait [1999] 2 Qd R 667 at 668.

The applicant’s written submission asserts that immediately upon the conclusion of the sentence he instructed his solicitor to lodge an appeal. He has repeated that assertion from the bar table today. It is unsupported by evidence. It is also impliedly inconsistent with the evidence of his then solicitor who deposes that on the conclusion of the sentence the applicant was told the sentence was within range. That evidence is consistent with the recollection of defence counsel and the content of the solicitor’s subsequent letter to the applicant, albeit that that letter may not have been received by him. Good reason has not been shown to account for the applicant’s delay.

Furthermore, as the following overview demonstrates, the prospective application for leave to appeal is without merit.

The complainant man was residing at the applicant’s home for some days while performing mechanical work on the applicant’s motor vehicle. On the night in question, the complainant had fallen asleep on a couch. While the complainant slept, the applicant violently assaulted him without a weapon. As much became apparent to the complainant when he awoke to water being thrown over him. He felt massive pain to his face and left eye and opened his eyes to see the applicant leaning over him. The complainant asked the applicant what had happened, to which the applicant responded, “I’ve only given you a touch up, it’s only a black eye.”

The complainant was taken to hospital suffering left-sided facial tenderness, comminuted fracture of the left orbital floor, a left cheekbone fracture and infraorbital nerve injury. His ensuing surgery involved open reduction and internal fixation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v PBF

Details

AGLC: R v PBF [2019] QCA 217
Case: [2019] QCA 217
Decision Date: 17 OCTOBER 2019

CaseChat Overview and Summary

The case of R v PBF involved the applicant appealing against his sentence of four years imprisonment with parole eligibility after 15 months for a charge of grievous bodily harm. The applicant sought an extension of time to apply for leave to appeal his sentence on the ground of manifest excess. The application was necessary because the applicant’s filing was over four months beyond the time within which an application for leave to appeal sentence should be filed. The Court had to consider whether the applicant had shown good reason to account for the delay and whether it was in the interests of justice to grant the extension.

The Court found that the applicant had not shown good reason to account for the delay in filing the application for leave to appeal. The applicant’s claim that he had instructed his solicitor to lodge an appeal immediately upon the conclusion of the sentence was unsupported by evidence and inconsistent with the evidence of his then solicitor. The Court also found that the prospective application for leave to appeal was without merit, as the sentence was not manifestly excessive in the circumstances of the case. The Court noted that the applicant had a history of criminal violence and that the offence was committed under particularly serious circumstances, which justified a higher than ordinary head sentence.

The Court concluded that it was not in the interests of justice to grant the extension of time for the applicant to apply for leave to appeal his sentence. The application for an extension of time within which to apply for leave to appeal sentence was refused. The Court’s order was that the application for an extension of time within which to apply for leave to appeal against sentence is refused.

Orders