R v Wyllie - [2010] QCA 98

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wyllie [2010] QCA 98

PARTIES:

R
v
WYLLIE, Rohan James
(applicant)

FILE NO/S:

CA No 6 of 2010
CA No 279 of 2009
DC No 419 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)
Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

30 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

13 April 2010

JUDGES:

Holmes and Chesterman JJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for extension of time within which to appeal against conviction refused

2. Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where applicant pleaded guilty to attempted recording in breach of privacy – where applicant lodged an appeal against conviction out of time – where there was some explanation for the delay – where the delay not excessive – where applicant argued that he was improperly pressured by his legal counsel to plead guilty and that his plea of guilty amounted to a miscarriage of justice – where no prospects of success on appeal against conviction demonstrated – whether application for extension of time should be granted

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to attempted recording in breach of privacy – where applicant sentenced to two years probation, having already served 33 days in pre-sentence custody – where conviction recorded – where applicant argued that recording of a conviction would adversely affect his future employment prospects – where applicant argued that the length of probation was manifestly excessive – whether trial judge erred in exercising his discretion to record a conviction – whether sentence manifestly excessive

Criminal Code 1899 (Qld), s 4, s 227A
Penalties and Sentences Act 1992 (Qld), s 12(2)

Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, considered
R v Cay, Gersch and Schell; ex parte A-G (Qld) (2005) 158 A Crim R 488; [2005] QCA 467, cited
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, considered

COUNSEL:

The applicant appeared on his own behalf
G P Cash for the respondent

SOLICITORS:

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

HOLMES JA: On 19 October 2009, the applicant pleaded guilty to one count of attempted recording in breach of privacy, contrary to s 227A of the Criminal Code. A conviction was recorded and he was placed on probation for two years, with a special condition that he submit to medical psychiatric and psychological treatment as directed by an authorised Corrective Services Officer. On 5 January 2010, the applicant filed an application for an extension of time within which to appeal against both his conviction and…

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 Wyllie

Details

AGLC: R v Wyllie [2010] QCA 98
Case: [2010] QCA 98
Decision Date: 30 April 2010

CaseChat Overview and Summary

The matter before the court involved an appeal from the applicant, Wyllie, who had pleaded guilty to a charge of attempted recording in breach of privacy. Wyllie sought to appeal against both his conviction and the sentence imposed. The application for an extension of time to appeal against the conviction was denied, as was the application for leave to appeal against the sentence. The primary issues before the court were whether the application for an extension of time for the appeal against conviction should be granted, and whether the sentence was manifestly excessive.

The court considered the applicant's explanation for the delay in lodging the appeal against conviction, which was deemed insufficient to justify an extension of time. The delay, while not considered excessive, still fell outside the statutory time limit for appealing against conviction. The applicant argued that he was improperly pressured by his legal counsel to plead guilty and that his plea amounted to a miscarriage of justice. However, the court found that there were no prospects of success on appeal against the conviction. Additionally, the applicant contested the recording of his conviction, arguing that it would adversely affect his future employment prospects. The court determined that the trial judge did not err in exercising his discretion to record the conviction and that the length of the probation was not manifestly excessive.

The court ultimately refused the application for an extension of time to appeal against the conviction. It also dismissed the application for leave to appeal against the sentence, finding that there was no basis to interfere with the sentence imposed by the trial judge. The court's decision upheld the conviction and sentence, rejecting the applicant's arguments regarding the propriety of his plea, the recording of the conviction, and the excessiveness of the probation term.

Orders

Orders of the court

1. Application for extension of time within which to appeal against conviction refused

2. Application for leave to appeal against sentence refused

Background

Background to the litigation

Full text does not contain this section.

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 Wyllie [2010] QCA 98
PARTIES:	R v WYLLIE, Rohan James (applicant)
FILE NO/S:	CA No 6 of 2010 CA No 279 of 2009 DC No 419 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction) Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	30 April 2010
DELIVERED AT:	Brisbane
HEARING DATE:	13 April 2010
JUDGES:	Holmes and Chesterman JJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for extension of time within which to appeal against conviction refused 2. Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where applicant pleaded guilty to attempted recording in breach of privacy – where applicant lodged an appeal against conviction out of time – where there was some explanation for the delay – where the delay not excessive – where applicant argued that he was improperly pressured by his legal counsel to plead guilty and that his plea of guilty amounted to a miscarriage of justice – where no prospects of success on appeal against conviction demonstrated – whether application for extension of time should be granted CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to attempted recording in breach of privacy – where applicant sentenced to two years probation, having already served 33 days in pre-sentence custody – where conviction recorded – where applicant argued that recording of a conviction would adversely affect his future employment prospects – where applicant argued that the length of probation was manifestly excessive – whether trial judge erred in exercising his discretion to record a conviction – whether sentence manifestly excessive Criminal Code 1899 (Qld), s 4, s 227A Penalties and Sentences Act 1992 (Qld), s 12(2) Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, considered R v Cay, Gersch and Schell; ex parte A-G (Qld) (2005) 158 A Crim R 488; [2005] QCA 467, cited R v Tait [1999] 2 Qd R 667; [1998] QCA 304, considered
COUNSEL:	The applicant appeared on his own behalf G P Cash for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent