R v. Rigano

[2009] QCA 288

[2009] QCA 288

COURT OF APPEAL

MUIR JA
CULLINANE J
FRYBERG J

CA No 164 of 2009
DC No 88 of 2009

THE QUEEN

v

JOHN PETER DOMENIC RIGANO

BRISBANE

DATE 28/09/2009

JUDGMENT

FRYBERG J:  On 29 April this year Mr Rigano pleaded guilty in the District Court at Cairns to six counts of indecent treatment of a child under 16.  He was convicted and sentenced to imprisonment for three years and six months suspended after serving nine months, with an operational period of four years.  He now applies for an extension of time within which to apply for leave to appeal against the sentence.  The application, which is dated 17 June, was filed on 29 June, a month out of time.  At present he is not legally represented.

Unfortunately Mr Rigano has filed no affidavit in support of his application.  The ground upon which it is made appears from the application form and from an outline of argument filed in response to a request from the Registrar.  Mr Rigano explains his delay as being the result of not receiving his mail from the time he was sentenced until 12 June.  He says that after he was sentenced trial counsel advised him to await written advice as to the appropriateness of and basis for any possible appeal.  He was to receive such advice by mail on transfer to Lotus Glen Prison.

However, he was not sent to Lotus Glen.  He was held for seven days in the Cairns Watch House then transferred to the Brisbane Watch House.  There he remained for three days until his transfer to the Brisbane Correctional Centre where he remained for a further two weeks.  He was then placed in the Wolston Correctional facility.

He says that no notification of his transfer to Brisbane was given to his family or his legal representatives and that at both prisons he was assured that correspondence would be redirected.  He sought to phone his solicitor while at the latter facility, but was not permitted to do so.  He wrote to his solicitor but did not receive a reply before the time for filing an application for leave to appeal had expired.

He says that on 12 June he received all his mail from Lotus Glen.  That mail included a letter from his lawyers dated 5 May containing a "persuasive recommendation and opinion for an appeal."  As a result he apparently applied for legal aid and was interviewed on 18 June.  He submitted his application for an extension of time to Sentence Management, apparently a part of the prison administration, on that day.  Unsurprisingly he advances no explanation for the delay from 18 June to 29 June.

On the hearing of the application the Crown accepted the accuracy of the history given by Mr Rigano.

In its written outline the Crown opposed the application on the ground that the potential appeal could not be considered viable.  It submitted that the sentence imposed could not be regarded as manifestly excessive.  It submitted that it was entitled to adopt this approach as a result of the decision of this Court in R v. Tait [1999] 2 Queensland Reports 667.  In oral submissions the Crown accepted that in the circumstances of the case it was open to the Court to grant the application without considering the merits.

The delay was caused first by Mr Rigano's transfers, which led to his mail being delayed; second, by his inability to contact his solicitors by telephone; third, by the need for him to be interviewed for legal aid; and fourth, by the failure of prison management to file his application promptly.

In my judgment he should not be held at fault for the delay.  He has provided a satisfactory explanation for it.  The period of the delay was fairly short.  Mr Rigano acted promptly to lodge his application when he became aware of the position.  We do not have the full record, nor is Mr Rigano presently legally represented, a situation likely to change if his prospects are as good as he claims counsel advised.

In my judgment Mr Rigano should have his extension of time.  He filed an application for leave to appeal on the same day as his application for an extension of time was filed ... and that document was served on the Crown on that day.  The extension should therefore be to the 29th of June.  I would order that the time within which notice may be given by Mr Rigano of an application for leave to appeal against the sentences imposed on him in the District Court at Cairns on 29 April 2009 be extended to 29 June 2009.

MUIR JA:  I agree.

CULLINANE J:  I also agree.

MUIR JA:  The order will be as articulated by Justice Fryberg in his reasons.