R v Salles - [1997] QCA 129

IN THE COURT OF APPEAL	[1997] QCA 129
SUPREME COURT OF QUEENSLAND
C.A. No. 92 of 1997
Brisbane [R. v. Salles]

THE QUEEN

ARACATI DE OLIVIERA SALLES

(Applicant)

McPherson JA
Thomas J
Lee J

Judgment delivered 20 May 1997

Judgment of the Court

APPLICATION GRANTED FOR EXTENSION OF TIME IN WHICH TO APPEAL.
APPEAL DISMISSED

CATCHWORDS:CRIMINAL LAW - Sentence - Application for extension of time in which to file appeal - Substantial delay - Applicant ignorant of right to appeal and of time limit - Non-English speaker.

CRIMINAL LAW - Sentence - Application for leave to appeal against sentence - Sentence of 20 years' imprisonment for importing a commercial quantity of cocaine - Applicant a thirty-four year old man with no previous convictions - Pleaded guilty - Whether sentence manifestly excessive.

Counsel:	Applicant appeared on his own behalf
Mr G. Davey for the Respondent
Solicitors:	Applicant appeared on his own behalf
Commonwealth Director of Public Prosecutions for the Respondent

Hearing Date: 6 May 1997

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 20 May 1997

The applicant seeks an extension of time within which to file an application for leave to appeal against his sentence. He was sentenced in the circuit court at Mackay to 20 years' imprisonment for importing a commercial quantity of cocaine into Australia.

The present application was not received by the Registrar until 17 March 1997, more than four months after his sentence. The delay is therefore fairly substantial. The explanation for it is essentially that he was ignorant of his right to appeal or of the time limit for commencement of an appeal. There is certainly a language barrier, and the services of an interpreter were necessary in this Court.

In the event, the Court received full submissions as if on an appeal, and although no formal record was prepared, the Court has received the full transcript of proceedings and all exhibits that were tendered.

The relevant statement of facts presented to the learned sentencing judge had been translated to the applicant, and no challenge was made to them during the proceedings. They included the following:

"The accused in this matter was a crewman on a vessel called the Doce River which originated this voyage in Brazil in April 1996 and travelled via Taiwan to Mackay where it was intended to load coal at Hay Point. The co-accused, Filho and Ferriera were also crewman on board the vessel.

On seventh day of June 1996 an alert watchman at the wharves at Hay Point noticed three seaman come ashore in excess of one hour after other crew had left in the bus to go into town. They requested the watchman to call a taxi to take them into the city. He made the call for the taxi but also the Australian Custom Service as he was concerned that these three men were carrying two bags one of which was quite large. He was able to delay them at the wharf until the authorities arrived.

Upon…

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 Salles

Details

AGLC: R v Salles [1997] QCA 129
Case: [1997] QCA 129
Decision Date: 20/05/1997

CaseChat Overview and Summary

The applicant in the case of R v Salles, Aracati de Oliveira Salles, sought an extension of time within which to file an application for leave to appeal against his sentence. Salles was sentenced in the Circuit Court at Mackay to 20 years' imprisonment for importing a commercial quantity of cocaine into Australia. The application for an extension of time to appeal was made more than four months after his sentence, a delay attributable to Salles' ignorance of his right to appeal and the time limit for initiating an appeal, exacerbated by language difficulties.

The legal issues before the Court of Appeal were whether the substantial delay in filing the application for leave to appeal could be justified and whether the sentence imposed was manifestly excessive. The Court considered the circumstances of the case, including Salles' level of involvement in the importation, his lack of previous convictions, his cooperation with authorities, and the comparative sentences of his co-offenders.

The Court found that the applicant's ignorance of his rights and the time limit due to language barriers justified the extension of time. It also determined that the sentence imposed was within the bounds of a sound sentencing discretion, considering the seriousness of the offence and the lack of cooperation by Salles compared to his co-offenders. The Court of Appeal granted the extension of time and dismissed the appeal against the sentence.

The final orders of the Court were to grant the application for an extension of time in which to appeal and to dismiss the appeal against the sentence. The Court's decision reflects a balanced consideration of the applicant's circumstances and the need for a fair and just outcome in the sentencing process.

Orders