The Queen v D

[1999] QCA 245

99.245

COURT OF APPEAL

PINCUS JA

McPHERSON JA

THOMAS JA

CA No 165 of 1999

THE QUEEN

v

D  Applicant

BRISBANE

..DATE 05/07/99

JUDGMENT

THOMAS JA: 

This 17-year-old applicant was convicted of various offences including four counts of armed robbery and one of grievous bodily harm with intent to resist arrest.  There were other offences also but it is enough to indicate that the operative sentence imposed in respect of the more serious offences was one of eight years imprisonment with a recommendation for consideration of parole after three years.

The notice of application for extension of time accompanied by a proposed notice of appeal was not filed until 17 May 1999, that is to say four and a half months after the passing of the original sentences.  The delay is explained in this way.  The applicant sought advice from his counsel who had been retained by the Legal Aid Office and was advised that an appeal would not be successful.  Accordingly, he did not lodge any application to appeal.  However, in April 1999, when a co-offender, one M, was dealt with by the Court, he ascertained that that co-offender had been sentenced to five years detention of which he would be required to serve 50 per cent.  M was sentenced as a juvenile.  However, there was only three months age difference between them, the applicant being just over 17 and M just under 17 at the relevant time.

The comparison between the two sentences then is that M has a head sentence of five years with the guaranteed release after two and a half years whilst the applicant has a head sentence of eight years with a possibility of release after three years.

The involvement of M in the more serious of the offences could fairly be described as primary, so far as violence goes, and as being more involved in the actual events constituting the crimes.  Significantly, M was the person who used the knife which caused the very serious grievous bodily harm in one of the more serious offences.  M was on probation at the time and M’s criminal record would seem to have been also worse than the applicant’s.

It may well be that M has been leniently dealt with but in my view in the absence of a record it is not possible to say that a legitimate sense of grievance could not arise on the part of the applicant.  I, of course, express no view as to the prospects of the success on the appeal, I cannot say that the case is incapable justifying a fair argument on theground that is sought to be raised.  I would accordingly extend time for filing the notice of appeal to 14 May 1999 and grant leave to appeal.

McPHERSON JA:      

I admit to some doubts whether this application should be allowed to proceed; but it may be a case in which, for justice to be done, a full record is needed.  Accordingly, I would agree that the time for applying for leave should be extended to the date on which the application was filed.

PINCUS JA: I agree.

McPHERSON JA: The order will ----

MR DEVEREAUX: Excuse me, Your Honour, before the Court makes the orders it appears from a stamp on the application that it reached the Registry on 17 May not the 14th so if a date is to be made it should be the 17th in my submission.

McPHERSON JA:  Well, I put it in a pretty broad form.

MR DEVEREAUX: Your Honour covered ----

McPHERSON JA: Is that good enough or do you need a specific date?

MR DEVEREAUX: No, what Your Honour said is good enough for me.  Thank you.

McPHERSON JA: Yes, all right.