R v Thomas - [2010] QCA 201

[2010] QCA 201

COURT OF APPEAL

McMURDO P
MUIR JA
APPLEGARTH J

CA No 122 of 2010
SC No 389 of 1992

THE QUEEN

GEOFFREY RONALD THOMAS Applicant

BRISBANE

DATE 05/08/2010

JUDGMENT

THE PRESIDENT: The applicant, Geoffrey Ronald Thomas, has applied for an extension of time to appeal against his conviction and sentence. He was convicted after a jury trial of murder on 14 July 1993 and sentenced to life imprisonment.

His appeal to this Court against his conviction for murder was dismissed on 13 October 1993. See R v Thomas, CA No 266 of 1993.

It follows that this Court has no jurisdiction to entertain a second appeal against conviction. Grierson v The King (1938) 60 CLR 431, Elliott (2007) 234 CLR 38 42 paragraph 7, R v MAM [2005] QCA 323 and R v Nudd [2007] QCA 40.

Mr Thomas's application for an extension of time to appeal against his conviction must be refused but, in any event, Mr Thomas's written and oral submissions addressed only his desire to appeal against his sentence which he described in his written submissions as "excessive...because it is resulting in incorrect information being used to determine my suitability for release and thus, in effect, giving me a life sentence without parole. This error has been repeated continually since early 2004 at least according to documents supplied to me by the Parole Board of Queensland in late 2009."

He states that he wants this Court to remit his sentence to the Trial Division so that it can be re-opened under s 188(5)(b) and (c) Penalties and Sentences Act 1992 (Qld).

He explains the reason for his very substantial delay in bringing this application was because he only became aware of the error in the sentencing proceeding in early July 2010 when he received copies of his Parole Board file.

The sentencing Judge's comments prior to passing sentence in July 1993 were understandably brief as the Judge had no discretion as to the penalty to be imposed for the offence of murder. Under s 305(1) of the Criminal Code of Queensland, murder is punishable by life imprisonment which cannot be mitigated or varied.

After imposing that sentence of life imprisonment, the Judge noted, "You would normally become eligible for parole after serving a significant portion of that term. If not eligible for parole, you would certainly be considered for parole after the expiration of a term of years. The Crown has placed before me your other conviction for manslaughter. It is said that you had been drinking on that occasion and perhaps that explains why the jury were not persuaded there was intent in that case. The jury in this case have been satisfied that you did intend to kill the man. You did him a very serious injury and in light of your previous conviction which was not really very long before this one, 4 July 1990, non-parole for three years and six months, this offence was…

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 Thomas

Details

AGLC: R v Thomas [2010] QCA 201
Case: [2010] QCA 201
Decision Date: 05/08/2010

CaseChat Overview and Summary

The Court of Appeal, presided over by McMurdo P, Muir JA, and Applegarth J, heard an application by Geoffrey Ronald Thomas for an extension of time to appeal against his conviction and sentence. Thomas was convicted of murder in July 1993 and was sentenced to life imprisonment. His initial appeal against the conviction was dismissed in October 1993, and he now sought to appeal against his sentence, which he considered excessive. Thomas believed that an error in the sentencing remarks, where the sentencing judge incorrectly stated that he had been convicted of manslaughter by a jury rather than pleading guilty, might have impacted his parole eligibility.

The court had to determine whether it had jurisdiction to entertain a second appeal against the conviction, and if not, whether Thomas's application for an extension of time to appeal against his sentence could be granted. The court noted that under Queensland law, a second appeal against conviction was not permissible. The court also examined whether the error in the sentencing remarks warranted reopening the sentence under the Penalties and Sentences Act 1992 (Qld). The court concluded that the error did not impact the sentence imposed, which was mandatory life imprisonment for murder, and thus section 188 of the Act did not apply.

The court held that the application for an extension of time to appeal against the conviction was without merit as the court lacked jurisdiction to entertain a second appeal. The court also dismissed the application to extend time to appeal against the sentence, as the only sentence that could be imposed for murder was the one that had already been imposed. The court provided Thomas with a transcript of the proceedings to assist him in future parole board applications. The orders included dismissing the application for an extension of time to appeal against conviction and sentence and providing Thomas with a copy of the reasons for the decision.

Orders