R v WN - [2005] QCA 359

SUPREME COURT OF QUEENSLAND

CITATION:

R v WN [2005] QCA 359

PARTIES:

R
v
WN
(applicant)

FILE NO/S:

CA No 195 of 2005
DC No 1196 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

27 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

27 September 2005

JUDGES:

McMurdo P, Keane JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for extension of time refused

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 the applicant had pleaded guilty to one count of incest and been sentenced to four and a half years imprisonment to be suspended after 18 months with an operational period of five years - where application for an extension of time had been filed three months after sentencing - whether there was any real prospect that the applicant's sentence would be reduced if an extension of time were granted

R v BAQ [2005] QCA 31; CA No 328 of 2004, 18 February 2005, distinguished

R v Moore [1989] CCA 208; CA No 215 of 1989, 31 August 1989, cited

R v R [1996] QCA 263; CA No 125 of 1996, 9 August 1996, cited

COUNSEL:

The applicant appeared on his own behalf
D L Meredith for the respondent

SOLICITORS:

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

KEANE JA: The applicant seeks an extension of time within which to apply for leave to appeal against sentence.

On 10 May 2005, the applicant was sentenced, on his plea of guilty to one count of incest with his daughter, to four and a half years imprisonment suspended after eighteen months with an operational period of five years. Eight days pre-sentence custody was declared as time served.

The applicant did not seek leave to appeal his sentence until 3 August 2005. The applicant says that this delay occurred because he was not told of his right of appeal until mid-July when he spoke to a fellow inmate about the matter. This explanation for the applicant's delay must be viewed with some scepticism because the applicant has previously brought an appeal before this Court for an earlier offence of incest, that time with his sister, in 1999. See R v W [1999] QCA 124; CA No 460 of 1998, 14 April 1999.

In any event, in my opinion, the application for an extension of time should be dismissed on the basis that there is no real prospect that his sentence would be reduced if an extension of time were to be granted.

The offence in question was committed on 15 March 2004. The applicant was, at that time, 51 years of age. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v WN

Details

AGLC: R v WN [2005] QCA 359
Case: [2005] QCA 359
Decision Date: 27 September 2005

CaseChat Overview and Summary

The matter before the Court was an appeal against the refusal to grant an extension of time for the applicant to appeal against his conviction and sentence. The applicant had pleaded guilty to a count of incest and was sentenced to four and a half years imprisonment, to be suspended after 18 months, with an operational period of five years. The Court was required to consider whether there was any real prospect that the applicant's sentence would be reduced if an extension of time were granted.

The Court considered the principles established in previous cases such as R v BAQ, R v Moore, and R v R. The Court noted that the applicant's appeal was brought well outside the statutory period for appeals and that there was no real prospect of a reduction in sentence. The Court also considered that the applicant had not demonstrated any special circumstances that would warrant an extension of time.

The Court concluded that there was no real prospect of a reduction in sentence if an extension of time were granted and that the application for an extension of time should be refused. The Court noted that the applicant had been given a fair opportunity to appeal against his conviction and sentence and that there were no exceptional circumstances that warranted an extension of time.

The Court refused the application for an extension of time and dismissed the appeal. The Court noted that the applicant's sentence was within the appropriate range for the offence of incest and that there were no grounds for an appeal against sentence. The Court also noted that the applicant had not demonstrated any exceptional circumstances that would warrant an extension of time.

Orders

Orders of the court

Application for extension of time refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v WN [2005] QCA 359
PARTIES:	R v WN (applicant)
FILE NO/S:	CA No 195 of 2005 DC No 1196 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	27 September 2005
DELIVERED AT:	Brisbane
HEARING DATE:	27 September 2005
JUDGES:	McMurdo P, Keane JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for extension of time refused
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 the applicant had pleaded guilty to one count of incest and been sentenced to four and a half years imprisonment to be suspended after 18 months with an operational period of five years - where application for an extension of time had been filed three months after sentencing - whether there was any real prospect that the applicant's sentence would be reduced if an extension of time were granted R v BAQ [2005] QCA 31; CA No 328 of 2004, 18 February 2005, distinguished R v Moore [1989] CCA 208; CA No 215 of 1989, 31 August 1989, cited R v R [1996] QCA 263; CA No 125 of 1996, 9 August 1996, cited
COUNSEL:	The applicant appeared on his own behalf D L Meredith for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent