R v Stevenson

[1998] QCA 186

COURT OF APPEAL

[1998] QCA 186

McPHERSON JA
DAVIES JA
THOMAS J

CA No 375 of 1996

THE QUEEN

v.

JOHN RICHARD STEVENSON  Appellant

BRISBANE

..DATE 27/05/98

JUDGMENT

McPHERSON JA: This purports to be an application pursuant to s. 188 of the Penalties and Sentences Act to reopen an earlier appeal or application for leave to appeal against sentence.  In form and in substance the earlier application was for an extension of time within which to apply for leave to appeal against sentence.

On 17 December 1996 this Court refused to extend the time for appealing. The proposition which appears now to rest at the foundation of the present application is that, in doing so, the Court, to quote the words of s.188 "imposed a sentence decided on a clear factual error of substance".

It seems to me to be very difficult to say that this Court imposed a sentence of any kind on the last or any other occasion.  In any event, however, the material now before this Court shows that the applicant has, if anything, had the benefit of an error in his favour.

On the last occasion when the applicant was before this Court, it seemed to some members of the Court to be difficult to work out precisely what his future release date would be.  On one view it might have been December 2001.  The applicant says it ought to be April 2000.  That difference might have called for some investigation, but it now appears that on 3 October 1986, the applicant was convicted of attempting to escape lawful custody and was sentenced on 4 June 1989 in respect of that offence to imprisonment for 18 months, to be served cumulatively on an existing sentence or sentences he was then serving. 
When that consideration is added into the sentencing equation, it ought to result in a full time release date of about 25 March 2002.  Hence the six year sentence that is the underlying subject of this application, and which was imposed on 26 July 1996, has in fact added only three months to the effective term that the applicant will serve.

Before us today the solicitors who have been acting on behalf of the applicant were given leave to withdraw.  The applicant now, it appears, wishes to seek further legal representation.  There is however no point in our following that course by ordering an adjournment in this case.

The application in its present form, even if not legally speaking incompetent, is bound to fail.  It should be dismissed and I would so order.

DAVIES JA: I would not wish to reach any concluded view upon the question whether, when this Court refuses an application for leave to appeal, it could re-open the matter under s.188 of the Penalties and Sentences Act 1992, for example under s.188(1)(b) rather than s.188(1)(a) or (1)(c). Subject to that, however, I agree with the reasons of the learned Presiding Judge and with the orders he proposes.

THOMAS J:  I agree with the reasons and orders proposed by the learned Presiding Judge.

McPHERSON JA:  The order will be as I have stated it.
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