R v. Vickery

[1995] QCA 455

[1995] QCA 455

COURT OF APPEAL

FITZGERALD P
MOYNIHAN J
THOMAS J

CA No 256 OF 1994

THE QUEEN

v

GARY JOHN VICKERY  Applicant

BRISBANE

DATE 21/08/95

JUDGMENT

THE PRESIDENT:  This is an application for an extension of time within which to apply for leave to appeal against a sentence imposed upon the applicant in the Supreme Court in Cairns on 18 May 1995 following his conviction for trafficking in amphetamines.  The applicant was sentenced to eight and a half years' imprisonment cumulative on an existing sentence which he was undergoing for perjury.

The applicant is 34 years of age born on 19 July 1961, has a criminal record which commenced in 1979 including nine previous convictions for drug offences including four counts of supply.  He was sentenced to terms of imprisonment in relation to drug offences in 1990, 1991 and 1993.

The application for an extension of time within which to apply for leave to appeal against sentence was filed eight days out of time and the only explanation which is given is that, "When I got to Lotus Glen from the watch-house I had to wait for the paperwork to arrive from the Court before they could assess me and give me my release dates.  And this took up a great deal of time which delayed me putting in my appeal on time".

The applicant was unable to assist with details or dates - dates or other details.  While that might count for little if there was a substantive basis for the proposed application for leave to appeal against sentence that basis is lacking in my opinion.

What it comes down to is that some time earlier the applicant had been a co-accused in a Magistrates Court proceeding again involving a drug offence.  The other accused had pleaded guilty and the applicant gave evidence on his own behalf which he now acknowledges was false in material particulars and he was acquitted.  Subsequently in connection with activities which lead to the trafficking in amphetamines charge for which the present applicant relates, a telephone intercept was placed upon the applicant's telephone and conversations were recorded in which he made admissions - made statements amounting to admissions both to the trafficking in amphetamines and to having committed perjury in the Magistrates Court proceeding to which I have referred.

The trafficking involved 15 grams of amphetamines over a three month period including two sales to an undercover agent.  But as I have said the balance of the evidence of carrying on the business of dealing in amphetamines came from the listening device secreted in the applicant's unit.  I may have been incorrect when I earlier said it was a telephone intercept, but certainly there was a listening device involved.

The applicant's basis for his proposed application for leave to appeal against sentence is that he had already been given a sentence of two and a half years imprisonment with a non-parole period of one year three months in relation to the perjury following his conviction on 18 January 1995 and he considered it unfair that he should have received a cumulative sentence in relation to the trafficking in amphetamines because the primary purpose of the listening device had only been to get evidence for drug offence purposes and the evidence of the perjury offence was, as it were, an unintended by-product.

I can find no possible basis for a complaint that in such circumstances the two sentences should have been made cumulative upon each other and there has been no submission made on behalf of the applicant nor is there anything in the respondent's outline which suggest that the individual sentences or either of them was manifestly excessive.  In the circumstances I would refuse the application for an extension of time.

MOYNIHAN J:  I agree.

THOMAS J:  I agree.

THE PRESIDENT:  The application is refused.