R v West

[2006] QCA 113

SUPREME COURT OF QUEENSLAND

CITATION:

R v West [2006] QCA 113

PARTIES:

R
v
WEST, Nathaniel Kenneth

(applicant)

FILE NO/S:

CA No 3 of 2006

DC No 207 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED EX TEMPORE ON:

18 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

18 April 2006

JUDGES:

McMurdo P, Jerrard JA and Mullins J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for extension of time in which to appeal against sentence granted

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where applicant pleaded guilty to and was convicted of assault occasioning bodily harm and unlawful use of a motor vehicle, offences committed whilst on parole - where applicant filed application for leave to appeal against sentence about three months late – where applicant stated that lateness caused by deaths of three members of his family and by his own admission to hospital for surgery – whether applicant has any reasonable prospects of success in an application for leave to appeal against sentence

COUNSEL:

The applicant appeared on his own behalf

D R MacKenzie for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT:  The applicant filed an application for an extension of time in which to apply for leave to appeal against sentence on 3 January 2006, about three months late.  Although not in affidavit form, in his application he states that the reasons for the lateness for his application were that, shortly before his sentence, his sister, aunty and mother all died in quick succession and on 13 October 2005 he was admitted to Rockhampton Base Hospital for surgery and was only discharged on 22 October 2005.  He contends that he was emotionally and physically incapable of progressing his application for leave to appeal and had no money for legal representation. 

Mr MacKenzie on behalf of the respondent fairly concedes that those factors, although not contained in an affidavit, do suggest an adequate explanation for the lateness of his filing of this application.  Mr MacKenzie contends however that it would be pointless to grant the application because it has no prospects of success. 

Whether that is so or not, it is really impossible for this Court to authoritatively determine without a full record.  We simply do not have enough information.

In those circumstances the application for an extension of time in which to apply for leave to appeal against sentence should be granted.

JERRARD JA:  I agree.

MULLINS J:  I agree.

THE PRESIDENT:  That is the order of the Court.

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