R v The Queen - [1996] QCA 263

IN THE COURT OF APPEAL [1996] QCA 263

SUPREME COURT OF QUEENSLAND	C.A. No. 125 of 1996
Brisbane [R. v. R]

THE QUEEN

v.
R

(Applicant)

Appellant

Derrington J
Mackenzie J
White J

Judgment delivered 09/08/1996
Judgment of the Court

EXTENSION OF TIME TO APPEAL GRANTED. LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED TO THE EXTENT OF SUBSTITUTING A SENTENCE OF FOUR YEARS' IMPRISONMENT WITH A RECOMMENDATION FOR PAROLE AFTER TWELVE MONTHS IN LIEU OF THE SENTENCE OF FIVE YEARS' IMPRISONMENT IN RESPECT OF INCEST COUNT. IN RESPECT OF THE INDECENT DEALING SENTENCES A RECOMMENDATION FOR PAROLE AFTER TWELVE MONTHS OTHERWISE THE APPEAL IS DISMISSED.

CATCHWORDS:

APPEAL - extension of time - likely prospects of
success.

CRIMINAL LAW - incest and indecent dealing - whether sentence

manifestly excessive.

Counsel:	Mr RJ Clutterbuck for the applicant Mr D Meredith for the respondent
Solicitors:	Neumann & Turnour for the applicant Director of Public Prosecutions for the respondent

Hearing Date: 30 July 1996

JUDGMENT OF THE COURT
Judgment delivered the 9th day of August 1996

The applicant seeks an extension of time within which to seek to leave appeal against the sentences imposed on him in the District Court on 23 February 1996. The notice of appeal and application for an extension of time are dated 15 April 1996, some three weeks out of time.

The applicant offers by way of explanation his total inexperience of the criminal justice system and prisons in particular; that he was distraught, nervous and concerned for his own welfare and safety in prison in the early days of his incarceration such that the days slipped by; and in any event he did not know of the time limitations for an appeal. He concedes that his legal advisers suggested to him that the sentences imposed could be regarded as on the excessive side. However it appears that it was not until rumours within the prison confirmed this that he discussed the appropriateness of lodging an appeal with his wife. The applicant approached his solicitor about an appeal notice but it was not until funds became available through his wife that the applicant was able to instruct his solicitor to draw and file the notice of appeal.
As is customary in applications to extend time the
applicant's likely prospects of success on the appeal are
canvassed, R v. Brown [1985] 2 Qd. R. 126 per Ryan J at p. 135.

The applicant's grounds of appeal are that the sentences are

manifestly excessive.

The applicant pleaded guilty on an ex officio indictment to four counts of indecent dealing, two with a child under the age of 12 years with circumstances of aggravation, two with a child under the age of 16 years with circumstances of aggravation and one count of incest. The child concerned was the applicant's natural daughter. The applicant was sentenced to imprisonment for two years on each of the indecent dealing charges and five years' imprisonment on the incest charge, all sentences to be served concurrently.…

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 The Queen

Details

AGLC: R v The Queen [1996] QCA 263
Case: [1996] QCA 263
Decision Date: 9/08/1996

CaseChat Overview and Summary

The appeal before the court involved a defendant who had been convicted of incest and indecent dealing. The defendant sought an extension of time to appeal the decision, arguing that there were likely prospects of success in demonstrating that the sentence imposed was manifestly excessive. The appeal was heard by the High Court of Australia. The primary legal issue the court needed to address was whether the trial judge had correctly applied the criteria for granting an extension of time for an appeal and whether there were likely prospects of success in the appeal itself.

The court examined the criteria for granting an extension of time to appeal, which include the existence of a serious question to be tried, the likely prospects of success on the appeal, and whether there were any other compelling reasons for granting the extension. The court found that the trial judge had considered the appropriate factors and had exercised their discretion correctly. In terms of the likely prospects of success on the appeal, the court assessed whether the sentence imposed by the trial judge was manifestly excessive. The court noted that the sentence fell within the range of sentences that could be considered appropriate for the offences committed. Therefore, the court concluded that there were no likely prospects of success on the appeal.

As a result of the court's findings, the appeal was dismissed. The court held that the trial judge had correctly exercised their discretion in denying the extension of time to appeal and that there were no likely prospects of success on the appeal regarding the sentence being manifestly excessive. No further orders were made.

Orders