R v Yeatman - [2018] QCA 315

[2018] QCA 315

COURT OF APPEAL

MORRISON JA
PHILIPPIDES JA
CROW J

CA No 155 of 2017
DC No 358 of 2016

THE QUEEN

YEATMAN, Theodore Joshua Applicant

BRISBANE

TUESDAY, 13 NOVEMBER 2018

JUDGMENT

CROW J: The applicant was convicted by a jury on 7 September 2016, of one count of rape contrary to s 349 of the Criminal Code Act 1899 (Qld). The primary Judge sentenced the applicant to seven years imprisonment. As no parole eligibility date was specified, the applicant will be eligible for parole after serving half his term pursuant to s 184(2) of the Corrective Services Act 2006 (Qld). On the 22nd of August 2017, the applicant filed a notice of application for extension of time within which to appeal a notice of appeal against a conviction and a notice of application for leave to appeal against sentence.

The applicant’s application for leave to appeal sentence was filed approximately 10 months out of time; no explanation is given for the delay. The conviction appeal has now been abandoned. The application to appeal against the sentence is pursued on the ground that it is manifestly excessive. The applicant contends that a head sentence of seven years imprisonment was manifestly excessive and that the failure to order a parole eligibility date earlier than at half-way point also rendered the sentence outside the exercise of the sentencing discretion in House v The King (1936) 55 CLR 499. The principle is applicable to an extension of time as set out in the Court of Appeal’s decision in R v Tait [1999] 2 Qd R 667 at 668, and recently summarised by the Court of Appeal in the decision of Gotterson JA in R v Taj [2018] QCA 305 at [5], thus:

“Two issues which are central to the exercise of the discretion to grant an extension of time here are whether there is good reason for the applicant having delayed in filing an application for leave to appeal and whether it would be in the interest of justice to grant the extension of time sought. The latter necessarily depends upon the prospects that an application for leave to appeal against sentence would have of success, those prospects themselves depending very much upon the prospects of ultimate success of the proposed ground of appeal.”

The relevant background is recorded in the sentencing judge’s remarks as follows:

“[A]fter a heavy night of drinking and entertainment, the complainant was driving home when she was dazed by the headlights of an oncoming car. Her car left the road and crashed into a ditch. She struck her head on the steering wheel, was bleeding and in shock. At that time, she made a phone call to a friend about the crash. Her friends immediately set out to look for her.”

The applicant was the driver of an oncoming car. He turned and returned to the crash site. The complainant was walking around her car at that stage. She had removed her jeans for…

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 Yeatman

Details

AGLC: R v Yeatman [2018] QCA 315
Case: [2018] QCA 315
Decision Date: 13 NOVEMBER 2018

CaseChat Overview and Summary

In the matter of the Queen versus Theodore Joshua Yeatman, the applicant was convicted by a jury of one count of rape, contrary to section 349 of the Criminal Code Act 1899 (Qld). The applicant appealed against his sentence of seven years imprisonment, arguing that the sentence was manifestly excessive and that the failure to specify a parole eligibility date rendered the sentence outside the exercise of the sentencing discretion. The Court of Appeal considered the application for leave to appeal sentence, which was filed approximately ten months out of time, with no explanation for the delay.

The primary legal issues for the Court of Appeal to decide were whether there was good reason for the applicant having delayed in filing an application for leave to appeal and whether it would be in the interest of justice to grant the extension of time sought. The Court of Appeal also considered whether the sentence was manifestly excessive and whether the failure to order a parole eligibility date earlier than at the halfway point rendered the sentence outside the exercise of the sentencing discretion.

The Court of Appeal held that the application for extension of time was not warranted, given the lack of merit in the sentence application. The Court found that the sentence was not outside the appropriate range when regard was had to the comparatives put before the sentencing judge and the Court of Appeal. The Court also held that there was no error in exercising the sentencing discretion by not imposing a parole eligibility date of less than half of the head sentence in circumstances where there had been a trial.

The final order of the Court was that the application for an extension of time was refused.

Orders