R v Wallace

[1994] QCA 578

[1994] QCA 578

COURT OF APPEAL

MACROSSAN CJ
PINCUS JA

DOWSETT J

CA No 442 of 1994
THE QUEEN
v.

LEON FREDERICK WALLACE Applicant

BRISBANE
..DATE 25/11/94
THE CHIEF JUSTICE: The Court is concerned with a notice of
application for extension of time within which to appeal, that
relating both to conviction and sentence. When the matter of
the appeal against conviction was discussed on coming on for
hearing, both counsel for the applicant and counsel for the
Crown conceded that there was no substantial matter which
could be raised in argument if time were extended, that is,
that was the opinion they expressed to this Court.

The manner in which the time limit failed to be observed is set out in an affidavit of the applicant's solicitor. The failure occurred initially in incorrect advice being given from counsel acting for the applicant. He advised a period for lodgment of appeal which ran from the date when sentence was pronounced rather than from the earlier date of the conviction itself. That initial error was followed by some other mishaps in the treatment of the notice of appeal document itself and the result was that it was lodged out of time.

In summary, it seems fair to say that it should not be regarded as the applicant's fault that the notice was not lodged in time, so far as the appeal against conviction is concerned, but in the circumstances of this case where there would appear to be such little substance in the appeal against conviction, were it permitted, and where counsel involved in the matter concede that to be so, there appears to be no sensible ground upon which the time for appeal against conviction should be extended and, for myself, I would refuse the extension of time which was sought in that respect.

The sentence which was imposed was one of 10 years cumulative upon a sentence currently being served. The sentence which was being served was one imposed in respect of four counts of rape, the effective sentence on that occasion being 13 years to run from 24 April 1992 with a non-parole period to expire on 24 April 1997, that is, one of five years. The further criminal history of the applicant for leave to appeal against sentence is one which is not impressive, that is except in respect of the magnitude of it. The worst offences within that history were the rape convictions which drew the sentence of 13 years to which I have already referred.

The Judge, in sentencing, declared that in his view there were in the present case no mitigating circumstances and no remorse shown. The attempted murder occurred in the course of assaults committed on a corrections officer within an institution where the applicant was detained. The applicant, with no provocation and for no particular reason which could be pointed to, in the course of a disturbance commenced to assault one of the prison officers by striking him first with an acoustic guitar about the head or forehead while the prisons officer was on the floor. That guitar smashed in the course of these assaults.

The applicant then left the room and returned with a heavy electric guitar in his hand and again commenced to hit the prisons officer around the head or forehead while he was still on the floor, causing considerable bleeding, pain and numbness. Then, not content with that, the applicant picked up a television set lifted to shoulder height to throw it at the prison officer's head, fumbled the first attempt, the sentencing Judge said, but then did succeed in throwing it onto his head. These were the circumstances which resulted in the jury's verdict that the applicant was guilty of having attempted to murder the corrections officer Dodds.

The Judge noted that he was imposing a term cumulative on one currently being served. He referred to the Crown's submission before him that a sentence in the range of eight to ten years was an appropriate one. He expressed his own view, however, that that was somewhat lenient - that is the Crown concession - but he adopted the sentence of ten years as one appropriate to be imposed. He was then obliged to order a new non-parole period and in lieu of the existing parole period expiring on 24 April 1997, he substituted a new one to expire five years later, that is on 24 April 2002.

Having in mind the serious criminal history of the applicant
and, most relevantly of all, the extremely serious
circumstances of the attempted murder of a prisons officer
within a correctional institution, in my view it cannot be
said that the sentence imposed is manifestly excessive. The
Court heard this matter of sentence fully but, having heard it
out, in my opinion it should be ordered that the application
be refused.
PINCUS JA: I agree.
DOWSETT J: I also agree.
THE CHIEF JUSTICE: The application is refused.

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