R v Viliafi

[2005] QCA 12

SUPREME COURT OF QUEENSLAND

CITATION:

R v Viliafi [2005] QCA 12

PARTIES:

R
v
VILIAFI, Usufonoimanu
(applicant)

FILE NO/S:

CA No 348 of 2004
CA No 395 of 2004
DC No 606 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)
Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

8 February 2005

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2005

JUDGES:

McMurdo P, Williams JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for leave to appeal against sentence dismissed.
2. Application for extension of time to appeal against conviction refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY – GENERAL PRINCIPLES – where applicant convicted of rape – where digital penetration - where applicant convicted of burglary by breaking in the night time with violence and while armed with offensive weapon – where guilty pleas voluntarily entered into by applicant– whether leave should be granted to extend time in which to appeal against conviction

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES - SEXUAL OFFENCES – whether sentence manifestly excessive.

R v M [2001] QCA 166, CA No 221 of 2001, 1 May 2001, discussed
R v S; ex parte Attorney-General of Queensland [2003] QCA 361;CA No 197 of 2003, 25 August 2003,considered

COUNSEL:

The applicant appeared on his own behalf
R Martin SC for the respondent

SOLICITORS:

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

THE PRESIDENT:  Justice Mackenzie will deliver his reasons first.

MACKENZIE J:  The applicant pleaded guilty to two related offences, the first being burglary by breaking in the night time with violence and while armed with an offensive weapon, and the second, rape consisting of digital penetration of a woman in the house into which he had broken.  He was sentenced to seven years' imprisonment with a recommendation for post prison community based release after two and a half years.

The applicant was sentenced on the 14th September 2004.  A form 26 notice was completed on the 12th October 2004 and received by the Registrar on the 18th October 2004.  It is in the form of an application for leave to appeal against sentence.

Then on the 29th October 2004, the applicant signed a further notice which specifies that he wishes to appeal against conviction.  Leave to extend time would be necessary in this instance.

In the accompanying application for an extension of time, the applicant says that he did not understand the paper work, because it was the first time he had appealed and he had to get help in prison.

The applicant claims in his written material and before us today that he did not rape…