R v Phillips

[2002] QCA 15

[2002] QCA 15

COURT OF APPEAL

DAVIES JA
WILLIAMS JA
DOUGLAS J

CA No 333 of 2001

THE QUEEN

v.

KEVIN WILLIAM PHILLIPS  (Applicant)

BRISBANE

..DATE 05/02/2002

ORDER

DAVIES JA:  The applicant seeks an extension of time within which to appeal against his conviction for unlawful possession of a motor vehicle, with a circumstance of aggravation, and to seek leave to appeal against his sentence for that offence, which was one of two and a half years imprisonment.

That sentence was ordered to be served cumulatively, upon a term of five years imprisonment, previously suspended, but ordered to be served because of the commission of this offence during its term. 

I put the sentence in that way, because that is the way in which one would ordinarily expect it to have been ordered; however, the learned sentencing Judge appears to have ordered that the five months be served cumulatively on this sentence.

Nevertheless, the consequence has been that the applicant is now required to serve a sentence of a little less than three years imprisonment. 

The applicant was convicted on 9 August 2001 and sentenced on the same day.  His application for extension of time was filed on 21 November 2000, more than three months out of time.  He has given an explanation for his delay.  In the first place, he says that when he was put in Arthur Gorrie Correctional Centre, as he was immediately after his conviction and sentence, his fiance spoke to Mr Steven Durley, of Smith & Associates, who had been his solicitors at his trial, in order to arrange for representation on appeal.  Mr Durley, after some difficulty in contacting him, told her that he was no longer acting in the matter.

He then tried to contact Legal Aid from the Arthur Gorrie Correctional Centre, but this was apparently on the day before he was about to be transferred to Woodford Correctional Centre and apparently for some reason he did not make that call.

Then immediately on his transfer, he said he asked to be put on the video link, which occurred a few days after his transfer, but he said to us that he was told that the complement for that day was complete and that he would then have to wait until 12 September, by which time, of course, it was well out of time.

Again, he says that on that day, the video link was put off because of a lock down.  There is some inconsistency on this point, emanating from indirect evidence contained in an affidavit from a solicitor, but it's unnecessary, in my opinion, to resolve that conflict.

The applicant no longer pursues his application in respect of his appeal against conviction.  That, it seems to me, is a sensible approach.  His prospects of success on appeal against conviction are negligible.  The car in question had recently been stolen; it was found in the applicant's house and parts from it were found in locations throughout the house.  It had substantially been stripped and its log books were found in a drawer beside the applicant's bed.

The applicant gave an explanation in Court as to how the car came into his possession, which it seems to me was a fanciful explanation; in any event, it was plainly rejected by the jury.  The applicant, however, pursues his application, so far as the application for leave to appeal against sentence is concerned and it is correct, as is conceded by Mr Heaton on behalf of the respondent, that the sentence is a high one.

Nevertheless, of course, it is necessary to look at his previous criminal record and his age.  He is 49 years of age and his criminality over most of his adult life has been continuous, except for periods when he has been in gaol.  His offending seems to have shifted in recent years from offences involving dishonesty, including unlawful use of a motor vehicle, to drug offences.  He has been in gaol on many occasions.

Mr Heaton relied on two cases, Williams, CA No 467 of 1993 and Pignot, CA No 446 of 1994, which he submits, it seems to me correctly, involved less serious criminality and for which in each case, a sentence of two years imprisonment was said to be appropriate.

He reasons from that, in his argument, that a sentence of two and a half years in this case was not outside the appropriate range and, indeed, he submits that a higher sentence would have been appropriate.  I have some difficulty with that submission, particularly in the absence of an adequate argument from the applicant. 
I have no clear view about whether the sentence in this case is outside the appropriate range when it is taken together with the five months cumulative sentence.  The question really is in the end whether the combined effect of the two sentences makes the totality manifestly excessive.

In my opinion, however, there is some prospect of persuading this Court that the totality was manifestly excessive notwithstanding the criminality in this case, the substantial amount of money involved and the applicant's previous criminal history.

I would therefore refuse the application for extension of time to appeal against conviction, but grant the application for extension of time within which to seek leave to appeal against sentence.

WILLIAMS JA:  Yes, I agree.

DOUGLAS J:  I agree.

DAVIES JA:  Mr Phillips, your application has been granted, as you have heard.  You should now make contact with Legal Aid, because once an extension of time has been granted in a case such as this, you have some reasonable prospects of getting Legal Aid for your representation on appeal.  You know that, do you?

PRISONER:  Yes, I have already spoken to Legal Aid about this, your Honour, and they said I would have to do this bit and they would then give my‑‑‑‑‑

DAVIES JA:  All right.  Well, you know you have to make contact with them immediately.

PRISONER:  I will do that as soon as I return to the Centre.

DAVIES JA:  Well, the order then is application for an extension of time within which to seek leave to appeal, extended to 21 November 2001.

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