R v Suey

[2009] QCA 261

SUPREME COURT OF QUEENSLAND

CITATION:

R v Suey [2009] QCA 261

PARTIES:

R
v
SUEY, William John
(applicant)

FILE NO/S:

CA No 102 of 2009
DC No 1161 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)
Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

27 August 2009

JUDGES:

Keane and Chesterman JJA and P Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for an extension of time within which to appeal against conviction and sentence is refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant has applied for an extension of time in which to appeal against his conviction – where the applicant submits the conviction is unsafe and unsatisfactory – whether the learned trial judge’s summing-up caused the trial to miscarry – whether the outcome of the trial was irrational

CRIMINAL LAW – SENTENCE – APPEAL AND NEW TRIAL – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant has applied for leave to appeal against his sentence – where the applicant claims his sentence was manifestly excessive in all the circumstances – where there was delay in bringing the application to appeal against sentence – where the applicant submits he was unwell at the time of his apprehension and was thereby delayed – whether the submission is without substance – whether the refusal of the extension would result in a miscarriage of justice – where the application for an extension of time within which to appeal against conviction is refused

CRIMINAL LAW – APPEAL AND NEW TRIAL –PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – ADJOURNMENT – GROUNDS FOR GRANTING OR REFUSING – OTHER MATTERS – where the applicant sought an adjournment of his appeal – where the adjournment was refused on the basis that an adjournment would not improve the applicant’s ability to make submissions

Criminal Code 1899 (Qld), s 568

R v Haddad [2001] QCA 171, considered
R v Herricane [1997] QCA 426, considered

R v Williams [2001] 2 Qd R 442; [2000] QCA 409, considered

COUNSEL:

The applicant appeared on his own behalf
M Copley SC for the respondent

SOLICITORS:

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

1. KEANE JA: I have had the advantage of reading in draft the reasons for judgment prepared by P Lyons J.  I agree with those reasons and with the order proposed by his Honour.

1. CHESTERMAN JA: I agree that the application for an extension of time within which to appeal against conviction and the application for leave to appeal against sentence should be dismissed for the reasons given by P Lyons J.

1. P LYONS J:  On some 16 occasions over 2004 and 2005, houses in and around Brisbane were unlawfully entered, with very substantial quantities of their contents being stolen (these events will be referred to as “the burglaries”).  As a result, the applicant was charged with 16 counts of entering and stealing, and in respect of each count with an alternative count of unlawfully receiving stolen property, with reason to believe the property had been stolen.  Additionally, in respect of some of the property, he was charged with one count of dishonestly obtaining sums of money, the allegation being that he sold it to a Mr Poznik (“the fraud count”).

1. In respect of 12 of the burglaries, the jury returned verdicts, finding him guilty of burglary and stealing, or alternatively receiving stolen property with the circumstance of aggravation, the jury being unable to determine which offence had been committed.[1]  In respect of each of his convictions, the applicant was sentenced to five and a half years’ imprisonment.  The applicant now applies for an extension of time in which to appeal against conviction, and for leave to appeal against sentence.

   [1]See s 568 of the Criminal Code Act 1899 (Qld).

Hearing of applications

1. The applicant represented himself.  He stated that he had had contact with Legal Aid Queensland about representation for his appeal against convictions, and that he had been informed that Legal Aid Queensland would not take any interest in the matter unless he was able to obtain an extension of time for that appeal.  He also stated that he had been in contact with another solicitor in relation to his appeal against sentence.  That solicitor would only represent him if he had been able to provide funds, which he had been unable to do.

1. He stated that he had not expected to make any submissions at the hearing, but did not identify any basis for his expectation.

1. He sought an adjournment of the hearings.

1. His application for an adjournment was refused, on the basis that there was no substantial reason for thinking that his ability to advance the applications would improve if an adjournment were granted.

1. He then made brief submissions in support of his applications.  In respect of his proposed appeal against the convictions, he submitted that he had obtained the property found at his home (which is discussed below) at flea markets and garage sales.  This was essentially his defence at the trial.  He also submitted that, when apprehended (in March 2009), he was unwell, and had tried to lodge an appeal within a month of his apprehension.  With respect to his application for leave to appeal against sentence, he submitted that he had been dealt with harshly.

1. Mr Copley SC, who appeared for the respondent on both applications, submitted that a long period had passed since the convictions, but was otherwise not in a position to make submissions about the application for an extension of time.  He made submissions in opposition to the application for leave to appeal against sentence.

Prospects of success on appeal against convictions

1. Some consideration of the applicant’s prospects of success in respect of his proposed appeal against his convictions is a relevant consideration for his application for an extension of time to institute the appeal.  It may demonstrate that to refuse the extension would result in a miscarriage of justice.[2]

   [2]R v Tait [1989] 2 Qd R 667 at [5]; R v GV [2006] QCA 394 at [3].

1. The sole ground identified by the applicant is that the conviction is unsafe and unsatisfactory.

1. At trial, the prosecution case was that substantial quantities of property had been stolen from 16 houses over the course of 2004 and 2005; a not inconsiderable quantity of this property was found at the applicant’s home; additional property was found at the home of Mr and Mrs Poznik; and the applicant had sold that property to Mr Poznik (resulting in the fraud count).

1. The prosecution case was to be proved in part by calling the complainants.  However, at an early stage of the trial, and after one of the complainants had been called, admissions were made which had the effect that it was unnecessary to call the other complainants.  Mr and Mrs Poznik gave evidence.  There was also evidence that in respect of some of the offences, a vehicle similar to the applicant’s vehicle was seen in the vicinity of the houses prior to the offences.

1. The admissions made on behalf of the applicant were in effect that the burglary offences were committed; that all of the property referred to in the indictments was stolen; as to the locations where the property was subsequently found (at the applicant’s home, or at the home of Mr and Mrs Poznik); as to the dates of the property being so found; and, where the approximate value was identified, that value.[3]

   [3]See exhibit 56, Record page (“R”) 618.

1. The defence case was that the applicant had come into possession of the property honestly, in one case having purchased an item at a second-hand store; and otherwise having purchased the property either at flea markets or garage sales; and that the evidence of Mr and Mrs Poznik should be rejected.  There was also evidence of another car being seen in the vicinity of some of the houses at relevant times, which was associated with another person who had possibly been involved in the burglaries.

1. After the prosecution case had been closed, it became apparent that there were errors in the admissions relating to two of the counts, arising from the same burglary.  The learned primary judge indicated that he was minded to direct an acquittal in respect of those two counts.  The prosecutor then indicated that the prosecution would not proceed on those counts, and the trial continued.

1. The applicant gave evidence.  In the course of his cross-examination, the court adjourned to the following day.  The applicant did not return that day or subsequently, and could not be located until much later.

1. Evidence was called relating to the inquiries made to locate the applicant.  A real estate agent gave evidence of conversations with him in which he had said that “he wouldn’t let them get him” and had made arrangements about terminating the tenancy of the house where he lived.  One of these conversations was by telephone.  In the course of that, the applicant said that he could not come back to Brisbane or otherwise he would be arrested, and that he was on the other side of Australia and that the real estate agent was not to tell anybody.  The learned trial judge then heard submissions on whether the applicant’s Counsel could continue to appear in the matter, and whether the trial could continue.  Counsel for the applicant indicated that he was prepared to abide by any ruling of the Court on his continuing to appear for the applicant.  The learned trial judge expressed the view, having considered authorities, that the applicant’s Counsel should remain in the trial until its conclusion.  He also ruled, again after consideration of authorities, that the trial should continue in the absence of the applicant.

1. The trial had been adjourned on the day when the applicant failed to appear.  On that occasion, the learned trial judge told the jury that there could be a number of explanations for the applicant’s non-appearance.  His Honour later received submissions about what direction should be given in relation to the applicant’s absence.  When the trial resumed before the jury a few days later, he pointed out that the applicant’s Counsel continued to represent the applicant, and told the jury that they were not to draw any inference adverse to the applicant by virtue of his absence, nor were they to speculate on any reason for his absence.  He gave a similar instruction in the course of his summing-up.

1. In respect of 12 of the burglaries, the jury returned the guilty verdicts which have been mentioned.  In respect of the remaining three of the burglaries and the fraud count, the jury indicated that they were hopelessly deadlocked.

1. The burglaries in respect of which guilty verdicts were returned were all burglaries where property taken was found in the applicant’s home.  Those in respect of which the jury was deadlocked were those in which the only stolen property located was found at the home of Mr and Mrs Poznik.  Convictions in respect of the charges relating to those burglaries as well as the fraud count all depended upon evidence from Mr and Mrs Poznik.

1. There was a rational basis for, on the one hand, the guilty verdicts which the jury brought in, and on the other hand, their being deadlocked in respect of the other counts.  Indeed, it had been urged by the applicant’s Counsel that on these counts, the prosecution case was at its weakest because it depended entirely on the evidence of Mr and Mrs Poznik and that there was good reason not to accept their evidence.[4] 

   [4]See the summing-up at R 512-514.

1. In respect of the guilty verdicts, there was a substantial body of evidence implicating the applicant.  It was a classic question for the jury to determine whether, in view of evidence and, in particular, the applicant’s evidence, it should have a reasonable doubt about his guilt; or whether from the evidence advanced by the prosecution, it should be satisfied of his guilt beyond reasonable doubt.  The applicant’s case appears to have been conducted competently, both before and after his departure.  It was also conducted with some success.  There is no reason to think that the summing-up caused the trial to miscarry.  The outcome of the trial was not irrational. 

1. No sensible basis has been shown on which it might be concluded that the applicant’s convictions were unsafe and unsatisfactory.

Application for extension of time

1. The ground for the extension which has been identified by the applicant in his application was that he was “in and out of hospital unsure of legal proceedings”.  He has not provided any evidence in support of this ground, but in his oral submissions referred to being unwell at about the time of his apprehension in March 2009.

1. The applicant was sentenced on 9 April 2009.  The transcript for that date records that the applicant had been apprehended on about 15 March 2009 in the course of committing another burglary.  In a letter from the applicant which was tendered at the sentencing, the applicant confirmed that he had been taken into custody in March 2009.[5]

   [5]R 652.

1. The time within which the applicant could appeal against his convictions expired in May 2008.[6]  The explanation identified in the applicant’s application for the extension of time is without substance.  The true explanation appears to be that the applicant, expecting adverse verdicts, chose to depart from Brisbane.  By doing so, he ensured that he did not know when the verdicts were delivered, or what they were, and chose, deliberately, to put himself in a position where there were obvious disadvantages, from his point of view, in attempting to institute an appeal within the time permitted by the Criminal Code.

   [6]See s 671 of the Criminal Code.

1. No positive ground of substance in support of the application for the extension of time has been identified.  In view of the history which has been discussed, and the lack of any real likelihood of success on the appeal, the application should be refused. 

Application for leave to appeal against sentence

1. If leave were granted to appeal against sentence, the ground identified by the applicant in support of his appeal is that the sentence was manifestly excessive in all the circumstances.

1. The applicant’s convictions resulted from 12 burglaries.  The property involved in those burglaries had a value of approximately $300,000.[7] The value of the property found at the applicant’s home was difficult to determine. It was submitted on his behalf that the property had a value of $15,000,[8] and the learned trial judge proceeded on the basis that that property had a value which was “clearly more than say $15,000.”[9]

   [7]R 578, no doubt based on exhibit 56 found at R 617.

   [8]R 568.

   [9]R 579.

1. In his sentencing remarks, the learned trial judge gave the applicant credit for the fact that his admissions at the trial substantially shortened it, and the complainants were thereby saved inconvenience and discomfort.  In view of the guilty verdicts, the learned trial judge considered that he could sentence the applicant only on the basis that he had received the stolen property, and only in respect of the property found in his possession.[10]  He also noted that the applicant had problems both with prescription drugs and other drugs.  He also noted that there was no cross‑examination of the complainant witnesses at any stage of the matter, and that the committal had proceeded by way of a full hand up of witness statements without any cross-examination.  He stated that he took into account the fact that the applicant had been in custody for 24 days prior to the sentence, though a declaration could not be made in respect of that time.  He also noted the applicant’s personal circumstances, including that his son had been killed relatively recently in a car accident.

   [10]R 578-579; see ss 568, 433 and 419 of the Criminal Code.

1. The learned trial judge considered that the burglaries reflected a substantial planned and sophisticated house-breaking operation on a large scale.  They extended over a substantial period of time, almost two years.  He found that the applicant was “a receiver on a substantial scale, one might almost say arguably a professional receiver”.[11]  He noted the serious nature of the offence of receiving.  He also noted the applicant’s criminal history, involving stealing as long ago as 1978 with offences occurring in the 1980s, 1990s, and between 2002 and 2005.  He noted that a probation order had been made at an early stage, and that on a couple of occasions subsequently the applicant had been sentenced to imprisonment, in one case for 18 months.  A letter was tendered from the applicant, expressing regret; but the learned trial judge considered that the applicant was “not the least sorry for his offending or all the cost and inconvenience that he may have caused or contributed to in relation to any of the victims”.

   [11]R 579.

1. At the sentence, the prosecutor had contended for a sentence of eight years’ imprisonment, with the possibility that the parole eligibility date would be after more than half this time was spent in prison.[12]  Counsel for the applicant contended for a sentence of imprisonment “in the vicinity of 5 years”,[13] with the applicant to be eligible for parole when half of the sentence had been served.

   [12]See R 563-564.

   [13]R 573.

1. Mr Copley SC referred to R v Herricane.[14]  There, a relatively youthful offender (24 years old) who was drug-dependant had been convicted of receiving property which was the product of ten different house-breakings in a period of less than two months.  The value of the property was $35,000.  The receiving was part of a well-organised enterprise conducted on commercial lines.  The offender had an extensive criminal history.  A sentence of five years’ imprisonment was held not to be excessive.

   [14][1997] QCA 426.

1. Mr Copley SC also referred to R v Haddad.[15]  In that case a person had been convicted of two counts of receiving commercial quantities of stolen cigarettes.  He was sentenced on the basis he had paid $40,000 for the cigarettes, receiving cigarettes which were worth approximately $100,000.  He had provided substantial assistance in relation to the conviction of the person from whom he had obtained the stolen cigarettes.  As a result, he could not work in a particular prison program in which the co-offender worked, and had suffered threats since giving evidence against the co-offender at the committal.  He was considered to be acting as a professional receiver.  Mr Haddad was 30 years old at the time of sentencing, and 26 to 28 at the time the offences were committed.  His only prior convictions were for minor drug matters in the Magistrates Court in 1994.  He applied for leave to appeal against a sentence of five years’ imprisonment, to be suspended after serving 15 months, with an operational period of five years.  His application was refused.

   [15][2001] QCA 171.

1. At the sentence in the present case, Counsel for the applicant referred to R v Williams.[16]  In that case, a person who had been heroin-dependent at the time of offending was found guilty in four cases of stealing or receiving, the jury being unable to determine which; and of two counts of stealing.  The total value of the property was $63,000.  The defendant had previous convictions for property-related offences on three occasions.  He had not been previously sent to jail.  On appeal, his sentence was reduced from a term of five years’ imprisonment to one of four years’ imprisonment.

   [16][2001] 2 Qd R 442.

1. The present case is not significantly different to Herricane, though the offender in that case was youthful.  The sentence imposed on the applicant is consistent with the sentence imposed in Haddad, when one bears in mind the number of offences of which the applicant was convicted, his previous criminal history, and the fact that Mr Haddad had provided significant assistance in relation to the conviction of another offender.  In Williams, there were fewer offences, a less extensive criminal history than in the present case, and the offender had not previously been incarcerated.  It is clearly a different case. In those circumstances, the sentence imposed in the present case is not manifestly excessive.

Conclusion

1. The application for an extension of time within which to appeal against conviction, and the application for leave to appeal against sentence should both be refused.