R v Senior

[2005] QCA 21

SUPREME COURT OF QUEENSLAND

CITATION:

R v Senior [2005] QCA 21

PARTIES:

R
v
SENIOR, Mark Lesley
(applicant)

FILE NO/S:

CA No 399 of 2005
DC No 2746 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

11 February 2005

DELIVERED AT:

Brisbane

HEARING DATE:

11 February 2005

JUDGES:

de Jersey CJ, Jerrard JA, Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for extension of time to appeal against sentence refused

CATCHWORDS:

APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCELLANEOUS MATTERS – POWER TO BRING APPEAL – EXTENSION OF TIME – where applicant sentenced to 12 years imprisonment – where Court of Appeal previously allowed appeal against 12 years imprisonment and substituted 12 year sentence for 10 and a half years – whether court has jurisdiction to reopen a matter already disposed of by the same court.

Grierson v R (1938) 60 CLR 431, followed
Postiglione v R (1997) 189 CLR 295, followed
R v Pettigrew [1997] 1 Qd R 601, followed
R v Smith [1968] QWN 50, followed

COUNSEL:

The applicant appeared on his own behalf
M R Byrne for the respondent

SOLICITORS:

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

MACKENZIE J:  The applicant has filed an application for extension of time within which to appeal against sentence.  The offences referred to were three armed robberies and an attempted armed robbery in respect of which he was convicted on the 15th of November 2001.  Today he has said that he was really concerned with the attempted armed robbery rather than the armed robberies themselves.

In any event, according to the sentencing remarks he was sentenced to 12 years' imprisonment for those offences.  The sentencing Judge had indicated that he accepted a Crown submission that a range of 14 years or above was appropriate having regard to the applicant's history.

The application for extension of time within which to appeal is in the form of one against sentence and states that the sentence is 10 and a half years. Investigation of the reason for that discrepancy showed that on the 20th of March 2002 the Court of Appeal allowed his appeal against the 12 year sentences and substituted imprisonment for 10 and a half years; [2002] QCA 104.

The Court of Appeal on that occasion heard and determined the present applicant's appeal on the merits and finally determined the appropriate sentence. Because that is so, there is no jurisdiction to reopen the matter, Grierson v R (1938) 60 CLR 431, R v Smith [1968] QWN 50, Postiglione v R (1997) 189 CLR 295, R v Pettigrew [1997] 1 Qd R 601.

Since the application for leave to extend time effectively seeks to reopen the issue of sentence finally disposed of in 2002 by this Court, the application must be refused.  I would simply add that the point that the applicant raised in respect of the attempted armed robbery in any event, having regard to what happened below before the learned sentencing Judge, has absolutely no merit.  I would refuse the application.

THE CHIEF JUSTICE:  I agree.

JERRARD JA:  I agree and add that the experienced barrister who represented the applicant said to the sentencing Judge, "The sentence has to be 10 years or above, I accept that, but in my submission it doesn't have to go much above that."  That was the result that the applicant achieved on his earlier appeal.

THE CHIEF JUSTICE:  The application is refused.

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