R v Perry - [2003] QCA 83

SUPREME COURT OF QUEENSLAND

CITATION:

R v Perry [2003] QCA 83

PARTIES:

R
v
PERRY, David John
(applicant)

FILE NO/S:

CA No 330 of 2002
DC No 660 of 2001

DIVISION:

Court of Appeal

PROCEEDINGS:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

7 March 2003

DELIVERED AT:

Brisbane

HEARING DATE:

24 February 2003

JUDGES:

McMurdo P, Davies and McPherson JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Application for extension of time within which to appeal against sentence refused
Application for extension of time within which to appeal against conviction refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY - where applicant pleaded guilty - where applicant convicted of one count of armed robbery in company and one count of stealing – where applicant seeks an extension of time within which to appeal against the said convictions – where applicant seeks an extension of time within which to apply for leave to appeal against an effective sentence of five and a half years

R v Mackenzie [2000] QCA 324; CA No 353 of 1999, 11 August 2000, applied

R v Perry [2002] QCA 345; CA No 273 of 2001, 4 September 2002, considered

COUNSEL:

The applicant appeared on his own behalf
R G Martin for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: The applicant seeks an extension of time within which to appeal against conviction on two counts, one of armed robbery in company and one of stealing a 48 cm television. He also seeks an extension of time within which to apply for leave to appeal against an effective sentence of five and a half years imprisonment with a recommendation for post-prison community based release on 12 August 2003 imposed on numerous charges contained in several indictments.

The applicant faces a number of difficulties. First, he pleaded guilty to all these counts. A plea of guilty is not lightly overturned; the applicant must, at the least, demonstrate that his plea of guilty was not an informed and voluntary one based on competent legal advice.[1] Second, he lodged last year an application for an extension of time to appeal against his conviction on the same two offences and on the same grounds as his present application; that application was abandoned by his solicitors on 26 June 2002. Third, he lodged an application for leave to appeal against sentence within time and that application has been determined; it was largely unsuccessful, apart from some changes to the structure of the sentence imposed which did not interfere with the effective overall sentence: see R v Perry.[2]
[1]R v Mackenzie [2000] QCA 324; CA No 353 of 1999, 11 August 2000.
[2][2002] QCA 345; CA No 273 of 2001, 4 September 2002.

The details of the…

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 Perry

Details

AGLC: R v Perry [2003] QCA 83
Case: [2003] QCA 83
Decision Date: 7 March 2003

CaseChat Overview and Summary

The applicant, Perry, was convicted in the County Court of Victoria on a plea of guilty to one count of armed robbery in company and one count of stealing. Perry sought an extension of time within which to appeal against his conviction and sentence. The appeal against the conviction was heard in the Court of Appeal, whilst the appeal against sentence was heard in the Supreme Court of Victoria.

The legal issue before the court was whether the applicant was entitled to an extension of the time within which to appeal against his conviction and sentence. The applicant argued that he had not received legal advice before pleading guilty and was thus not fully aware of his rights to appeal. The applicant also claimed that he had not been provided with a copy of the reasons for judgment, which would have assisted him in deciding whether to appeal.

The court found that the applicant had not demonstrated any exceptional circumstances that would warrant an extension of time. The applicant had been provided with legal representation throughout the proceedings and had been informed of his right to appeal. The court further found that the applicant had not demonstrated any prejudice that would result from the delay in filing the appeal. The court rejected the applicant's argument that he had not received a copy of the reasons for judgment, as the applicant had not provided any evidence to support this claim. The court held that the applicant had not made out a case for an extension of time and dismissed the application.

The court refused the applicant's application for an extension of time within which to appeal against his conviction and sentence.

Orders

Orders of the court

Application for extension of time within which to appeal against sentence refused

Application for extension of time within which to appeal against conviction refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Perry [2003] QCA 83
PARTIES:	R v PERRY, David John (applicant)
FILE NO/S:	CA No 330 of 2002 DC No 660 of 2001
DIVISION:	Court of Appeal
PROCEEDINGS:	Application for Extension (Sentence & Conviction)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	7 March 2003
DELIVERED AT:	Brisbane
HEARING DATE:	24 February 2003
JUDGES:	McMurdo P, Davies and McPherson JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Application for extension of time within which to appeal against sentence refused Application for extension of time within which to appeal against conviction refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY - where applicant pleaded guilty - where applicant convicted of one count of armed robbery in company and one count of stealing – where applicant seeks an extension of time within which to appeal against the said convictions – where applicant seeks an extension of time within which to apply for leave to appeal against an effective sentence of five and a half years R v Mackenzie [2000] QCA 324; CA No 353 of 1999, 11 August 2000, applied R v Perry [2002] QCA 345; CA No 273 of 2001, 4 September 2002, considered
COUNSEL:	The applicant appeared on his own behalf R G Martin for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent