R v Rostron

[2002] QCA 84

[2002] QCA 84

COURT OF APPEAL

McMURDO P
MUIR J
PHILIPPIDES J

CA No 335 of 2001

THE QUEEN

v.

JAMIE FREDERICK ROSTRON

BRISBANE

..DATE 18/03/2002

JUDGMENT

PHILIPPIDES J:  This is an application for an extension of time within which to bring an application for leave to appeal against conviction and sentence. 

The application concerns sentences imposed on 12 September 2001 in respect of various offences to which the applicant pleaded guilty.  The offences in question were one count of dangerous driving causing grievous bodily harm in respect of which a sentence of three years' imprisonment was imposed and a related count of wilful damage in respect of which 12 month's imprisonment was imposed.

In addition, the applicant was sentenced to six months' imprisonment in relation to three counts of unlawful carnal knowledge.  All the sentences were ordered to be served concurrently.  In addition, an order was made disqualifying the applicant from holding or obtaining a driver's licence for a period of three years.

The applicant is 31 years of age.  The circumstances relating to the offences of dangerous driving causing grievous bodily harm and wilful damage are that on 1 June 2000 the applicant had cause to go to the complainant's flat with police.  He subsequently returned a short while later and a scuffle developed involving the applicant.  As the complainant was walking back to his flat the applicant drove his car at the complainant, who was pinned against another car.  The complainant suffered injury to his leg and the other vehicle involved was damaged. 

The unlawful carnal knowledge counts relate to consensual intercourse between the applicant and a 15 year old girl with whom the applicant had formed a relationship and which resulted in the birth of a son. 

The application for leave to appeal against sentence was filed on 21 November 2001, about six weeks out of time.  The applicant's explanation for the delay is that he was placed in the prison Crisis Support Unit some two days after being taken to prison and was a patient there for five weeks.  The applicant contends that he was upset about the loss of access to his son and that he did not appreciate that he could appeal.  He says that he was told of his rights while he was at the Crisis Support Unit.

I consider that the applicant has demonstrated adequate reasons for the delay, albeit that the reasons were provided orally not in an affidavit form. 

The applicant who was legally represented at trial and who, as I mentioned, entered pleas of guilty to all the offences seeks to appeal against his convictions.

It appears that the applicant disputes the circumstances of the dangerous driving.  In the notice of appeal the applicant complains that he understood the charge was to be dropped to one of criminal negligence.  However, that was the basis upon which the learned sentencing Judge, in fact, proceeded.

I note that his Honour specifically remarked that the plea of guilty was entered on the basis that what was involved was criminally negligent driving.  His Honour went on to remark that the offence of dangerous driving was one which permitted a considerable range in the degree of criminality involved and that what was involved was not a deliberate ramming, but rather one of recklessness, and that what was involved was more than a mere momentary inattention.

One of the grounds in relation to the appeal against conviction was that the applicant had "bad legal representation".  He claims that he was advised to plead guilty without any proper explanation of the consequences. 

In his oral submissions he moderated this claim to some extent.  I note that the applicant has not provided any full details of this claim, nor was any material put forward to substantiate the claim.  In any event, the sentencing Judge's remarks appear to have been premised on a view of the facts which is consistent with that contended for by the applicant. In my view, there are no prospects of any appeal against the applicant's conviction.

As regards the application for leave to appeal against sentence there are, in my opinion, real prospects that the sentence may be manifestly excessive. 

Therefore, I would refuse the application for extension of time to appeal against conviction.  I would allow the application for extension of time to bring an application for leave to appeal against sentence.  I would extend the time to bring an application for leave to appeal against sentence to today.

THE PRESIDENT:  Yes, I agree.

MUIR J:  I agree that the applicant should have leave to appeal against sentence.  It is desirable, in my view, that before his rights in that regard are finally determined he obtain legal assistance.

THE PRESIDENT:  Now, Mr Rostron, what that means is you have an extension of time for your application for leave to appeal against sentence only and not against your guilty plea.

APPLICANT:  Yes.

THE PRESIDENT:  You must apply for legal aid now.

APPLICANT:  I see.  Yes, your Honour.

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