R v Sef - [2024] QCA 29

SUPREME COURT OF QUEENSLAND

CITATION:

R v SEF [2024] QCA 29

PARTIES:

R
v
SEF
(applicant)

FILE NO/S:

CA No 145 of 2022
SC No 320 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time to Appeal (Sentence)

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 11 July 2017 (Flanagan J)

DELIVERED ON:

8 March 2024

DELIVERED AT:

Brisbane

HEARING DATE:

27 September 2023

JUDGES:

Mullins P and Boddice JA and Burns J

ORDER:

The application for an extension of time within which to apply for leave to appeal against sentence be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant files application for leave five years out of time – whether there is any good reason shown to account for the delay in making the application

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where the applicant was convicted of three counts of attempted murder – whether the appeal is viable – whether the sentencing remarks contained material inaccuracies – whether the sentencing judge erred in not recording “merciful impulses” exhibited by the applicant during the offending – whether the sentencing judge had full consideration of the applicant’s mental history and mental state at the time of the offending

R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied

COUNSEL:

The applicant appeared on his own behalf
G J Cummings for the respondent

SOLICITORS:

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

THE COURT: On 11 July 2017, the applicant pleaded guilty to three counts of attempted murder. He was sentenced to life imprisonment on each count. Some 1,254 days spent in pre-sentence custody was declared as time already served under the sentences.
On 18 July 2022, the applicant filed an application for an extension of time within which to appeal those sentences and an application for leave to appeal against sentence. Should an extension be granted, the applicant seeks leave to appeal the sentences on the ground that there were errors of fact made by the sentencing judge in recording the number of stab wounds inflicted on each complainant; and in not recording “merciful impulses” exhibited by the applicant during the offending; and that his mental history and mental state were not taken into full consideration on sentence.
Offences
The offences were committed in 2014 when the applicant was aged 43 years.
The victims were the applicant’s partner and children; a daughter aged nine and a son aged seven.
Each offence involved the use of a knife. Each victim was stabbed multiple times.
Sentencing remarks
The sentencing judge recorded that the applicant had entered early pleas of guilty to the offences and that, notwithstanding those pleas of guilty, it was conceded by both counsel for the Crown and defence counsel, that the circumstances of the offending, together with their effects, meant it…

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 Sef

Details

AGLC: R v Sef [2024] QCA 29
Case: [2024] QCA 29
Decision Date: 8 March 2024

CaseChat Overview and Summary

In the matter of R v Sef, the applicant, who was convicted of three counts of attempted murder, sought an extension of time to appeal against the sentence imposed. The applicant filed the application for leave to appeal five years out of the statutory time limit. The court was tasked with deciding whether the application for an extension of time should be granted, considering whether there was any good reason for the delay and whether it was in the interests of justice to extend the time limit. Additionally, the court had to assess whether the appeal against the sentence was viable, focusing on whether the sentencing remarks contained material inaccuracies and whether the sentencing judge erred in not recording the applicant’s "merciful impulses" during the offending, as well as whether the judge had full consideration of the applicant’s mental history and state at the time of the offending.

The court found that the sentencing remarks did not contain material inaccuracies and were consistent with the agreed statement of facts. The applicant’s concession during the police interview that he did not help the complainants after he stopped stabbing them supported the sentencing remarks. Furthermore, the sentencing judge had addressed both the applicant’s mental health history and mental state at the time of the commission of the offences, and neither warranted a conclusion that the applicant’s moral culpability was significantly reduced, such that the imposition of the maximum penalty would result in a sentence that was plainly unreasonable or unjust.

Based on this reasoning, the court concluded that the applicant had no proper basis to successfully seek leave to appeal his sentence. Consequently, the application for an extension of time to apply for leave to appeal was deemed futile. The court ordered that the application for an extension of time within which to apply for leave to appeal against sentence be refused.

Orders

Orders of the court

The application for an extension of time within which to apply for leave to appeal against sentence be refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Second, the sentencing judge had regard to both the applicant’s mental health history and mental state at the time of the commission of the offences. Each was specifically addressed in the sentencing remarks. Neither warranted a conclusion that by reason of those matters, the applicant’s moral culpability was significantly reduced, such that the imposition of the maximum penalty would result in a sentence which was plainly unreasonable or unjust.Conclusion The applicant has no proper basis to successfully seek leave to appeal his sentence. An application for an extension of time within which to do so is futile.Order The order which should be made is:1. The application for an extension of time within which to apply for leave to appeal against sentence be refused.

Ratio Decidendi

Legal Principle Established

The test applied on whether an extension should be granted is whether there is any good reason shown to account for the delay in making the application and overall whether it is in the interests of justice to grant an extension of time, which may involve some assessment of whether the appeal seems to be a viable one: see R v Tait [1999] 2 Qd R 667 at [5].Consideration There is no merit in the applicant’s application for an extension of time as the applicant has no prospects of a successful appeal against sentence. First, the sentencing remarks did not contain material inaccuracies. They were consistent with the agreed statement of facts. Further, the applicant, during his police interview, conceded he did not help the complainants after he stopped stabbing them. Second, the sentencing judge had regard to both the applicant’s mental health history and mental state at the time of the commission of the offences. Each was specifically addressed in the sentencing remarks. Neither warranted a conclusion that by reason of those matters, the applicant’s moral culpability was significantly reduced, such that the imposition of the maximum penalty would result in a sentence which was plainly unreasonable or unjust.Conclusion The applicant has no proper basis to successfully seek leave to appeal his sentence. An application for an extension of time within which to do so is futile.Order The order which should be made is:1. The application for an extension of time within which to apply for leave to appeal against sentence be refused.

CITATION:	R v SEF [2024] QCA 29
PARTIES:	R v SEF (applicant)
FILE NO/S:	CA No 145 of 2022 SC No 320 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time to Appeal (Sentence)
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 11 July 2017 (Flanagan J)
DELIVERED ON:	8 March 2024
DELIVERED AT:	Brisbane
HEARING DATE:	27 September 2023
JUDGES:	Mullins P and Boddice JA and Burns J
ORDER:	The application for an extension of time within which to apply for leave to appeal against sentence be refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant files application for leave five years out of time – whether there is any good reason shown to account for the delay in making the application CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where the applicant was convicted of three counts of attempted murder – whether the appeal is viable – whether the sentencing remarks contained material inaccuracies – whether the sentencing judge erred in not recording “merciful impulses” exhibited by the applicant during the offending – whether the sentencing judge had full consideration of the applicant’s mental history and mental state at the time of the offending R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied
COUNSEL:	The applicant appeared on his own behalf G J Cummings for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent