R v West

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.

-----

The matter before the court was an appeal against sentence, brought by the appellant who had pleaded guilty to assault occasioning bodily harm and unlawful use of a motor vehicle. The offences were committed while the appellant was on parole. The application for leave to appeal against sentence was made approximately three months late, with the appellant citing the deaths of three family members and his own hospitalization for surgery as the reasons for the delay. The court was required to determine whether the appellant had any reasonable prospects of success in his application for leave to appeal against sentence.

The court considered the provisions of the Criminal Appeal and New Trial and Inquiry After Conviction Act, which allows for an extension of time in which to appeal against a sentence. It was noted that the appellant had filed his application for leave to appeal about three months late. The court acknowledged that the appellant had experienced significant personal hardships, including the deaths of family members and his own hospitalization for surgery, which contributed to the delay. The court examined the merits of the application and whether there were any reasonable prospects of success in an appeal against sentence.

Upon consideration of the evidence and arguments presented, the court determined that the appellant had reasonable prospects of success in his application for leave to appeal against sentence. The court took into account the personal circumstances of the appellant and the impact they had on his ability to file the application within the prescribed time period. As a result, the court granted the application for an extension of time in which to appeal against sentence.

The court's final order was that the application for extension of time in which to appeal against sentence was granted. This allowed the appellant to proceed with his appeal against the sentence imposed by the lower court.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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