The King v Ferreira

[2024] QCA 186

[2024] QCA 186

COURT OF APPEAL

BOND JA

CA No 62 of 2024
DC No 2571 of 2023

THE KING

v

FERREIRA, Carlos Adelino Henrique  Applicant

BRISBANE

MONDAY, 30 SEPTEMBER 2024

JUDGMENT

BOND JA:  On 19 December 2023, the applicant was convicted on his own plea of guilty of two counts of fraud and one count of knowingly being engaged in money laundering.  He was an employee at a petrol station.

The first count of fraud concerned taking in excess of $400,000 cash from his employer and depositing it into various bank accounts under his control.

The second count of fraud concerned causing a financial detriment to his employer by either processing cash sales of cigarettes at a reduced price and keeping the difference between the amount charged to the customer and the amount paid or taking cigarettes without full payment being made.

The third count concerned various financial steps taken to conceal his wrongful conduct.  On 19 December 2023, the applicant was sentenced as follows:

(a)count 1 – six years’ imprisonment;

(b)count 2 – 18 months’ imprisonment;

(c)count 3 – two years’ imprisonment,

to be served concurrently.

A parole eligibility date was set at 19 September 2025 which was 20 months or a little under one-third of the longest of the head sentences.  The applicant did not file an application for leave to appeal against sentence within the prescribed time.  He filed his application on 9 April 2024 which was more than two months late.

The grounds of his application were stated as follows:

“2.My grounds are manifestly excessive.

3.The judge acted on the wrong principles.

4.My psychiatric conditions were not take into account by the sentencing judge.

5.Misrepresentation by counsel.”

At about the same time, he also filed an application for extension of the time within which to bring the application for leave to appeal against sentence, identifying as his grounds:

“A-I humbly submit that having regard to my limited abilities and resources whilst incarcerated, I have acted as promptly as I reasonably could in the circumstances.

B-I further humbly submit administrative delay within the prison environment render it nearly impossible to undertake preparation as a self-represented litigant such as delays of up to several weeks in receiving requested copies of legislation, case law, transcripts and other documents in and from outside the prison in support and preparation of my application.

C-I respectfully submit that the delay in filing an Application for Leave has not prejudiced the Queensland Director of Public Prosecutions.

D-I humbly request that this Honorable Court exercises its discretion to allow my Application for Leave to be filed.”

He did not file an affidavit in support of his application.  His application for an extension of time was set down for hearing on 22 August 2024.  On 19 August 2024, after a review, Mullins P made these orders:

“1.Direct that the applicant’s affidavit in support of the extension application and outline of submissions for the sentence leave application be filed and served on or before 1 August 2024.

2.Note that the parties will be in a position to argue both the extension application and the sentence leave application on 22 August 2024.”

The applicant failed to comply with the President’s direction in that he did not file either his affidavit or his outline within the time directed.  Notably I have been informed that the date of 1 August was set in response to a submission advanced by him to the President that he would be able to able to do so by that date.

On 8 August 2024, the applicant wrote to the registrar in these terms:

“I would like to apply for an adjournment of my hearing dated 22 August 2024 as I am a self-represented applicant and currently incarcerated with a very tight and limited resources, it is very difficult to obtain the required legal information in a timely manner in order to prepare my Outline of Argument.

An adjournment of my hearing, if approved by the Honourable Court, will give me an opportunity to prepare my appeal documents.”

It may be noted that, in substance, the letter is a mere repetition of the grounds of the application for extension of time, filed in April 2024.

On 12 August 2024, the respondent wrote to the registry in terms which, amongst other things, explained that the respondent would oppose any further adjournments and if the applicant failed to file material on the next occasion, it would apply to strike out the applications for want of prosecution.  The hearing was adjourned on the papers until 17 October 2024.

On 16 September 2024, the applicant filed an affidavit purporting to be the affidavit relied on him in support of his application for extension of time.  The application was short on detail and in substance and, again, was only a repetition of the submissions filed in the grounds of the application filed in April 2024.

The applicant did not and has not filed an outline of argument for the hearing on 17 October 2024.  Rather, on 20 September 2024, he wrote another letter to the registrar, identical in terms to that which was written on 8 August 2024, save for the change to the date of the hearing referred to in the letter.

By email to the registry, copied to the applicant, the respondent opposed the adjournment and flagged an intention to have the application struck out for want of prosecution.  The substance of the respondent’s argument was expressed in the respondent’s email to the registry in these terms:

“This is the second listing of this matter for hearing that the applicant be adjourned after the filing date for his outline of submissions has passed.

The reasons advanced for the request of an adjournment on this occasion are in identical terms to that advanced on the previous occasion (see letter dated 8 August 2024).  On that occasion the applicant was granted an adjournment of the hearing of his appeal and the matter re-listed on the current date of 17 October.

It is noted that at a review of the matter on 19 July 2024, the applicant informed the President that he would, at that time, be in a position to file his outline of submissions by 1 August 2024 (That was in anticipation of the previous hearing date).  He failed to do so and the matter was adjourned at his request.  He has again failed to file his outline of submissions by the due date.

The applicant was well aware of the obligation to file an outline of submissions and has had more than ample time to prepare and file his written material.  As [the registry] has identified, there is no timeframe advanced by the applicant for the adjournment sought.  As foreshadowed in our response to the previous adjournment request dated 12 August 2024 (see attached), the respondent opposes the request of an adjournment and would ask the matter either remain as listed for hearing or be listed for a review, at which time the respondent will seek to have the application struck out for want of prosecution.”

Consequent upon the receipt of that email, I caused the proceeding to be listed for review.  I treated the applicant as having advanced orally his application for an adjournment as contained in his letter.  I treated the respondent as having advanced orally the application to have the application struck out for want of prosecution, as had been foreshadowed in its email.  I heard from both parties in support of their respective positions.

The respondent submitted that the applicant started this proceeding over two and a-half months late.  The matter has had one previous listing.  The applicant knew well what he was obliged to do.  At the previous review before Mullins P, her Honour explained his obligations and set dates that he was happy with.  He was given an extension for the filing of his outline, again, to the date that he was happy with then.  He sought and obtained an adjournment on the papers in circumstances to which I have earlier referred, an application to strike out for want of execution being then flagged if there was any further delay.

Prior to his 20 September letter, he had indicated that he would provide his submissions by that date but he did not and instead sent the 20 September application for an adjournment letter, the nature of which I have earlier referred to.

During oral argument, I explained to the applicant that the position was serious and that the substance of the respondent’s complaint was that he had had more than enough time, notwithstanding any difficulties that he was experiencing by being presently in incarceration.  In response, his oral submissions made two points.  First, he referred to his limited resources and the difficulties that he experienced.  In substance, that submission advanced nothing further than had been identified in his application grounds, his first and second letters and in his affidavit.  Second, he asserted that if he was given an extra four weeks’ time, he would be able to comply with that deadline.  It is now more than nine months since the sentence was imposed.  The applicant’s explanations for that delay are, as I have earlier mentioned, long on assertion and short on any detail at all about what, if any, steps he has actually taken or tried to take.

I do not accept the explanations as adequate.  He has breached the orders made by the President in two respects: First, his affidavit was filed well outside the time ordered and with no adequate explanation for doing so.  Second, notwithstanding his indication to the President that he would be in a position to file his outline by the extended date the President gave him, he still has not done so.

I agree with the submissions advanced by the respondent.  More than enough time has passed for the applicant to get his act together and prepare an outline of submissions.  I attribute no weight to his oral assertion before me today that he would be able to do so if given an extra four weeks.  He still has not done so despite more than enough time passing.  His explanation for his failure to do so is unsatisfactory.

I order that his application for an extension of the time within which to apply for leave to appeal against sentence be struck out for want of prosecution.  Out of an abundance of caution, I also order that the application for leave to appeal against sentence which he had filed also be struck out for want of prosecution.

Adjourn the court.