WAE v. The Queen

[2008] QCA 64

[2008] QCA 64

COURT OF APPEAL

McMURDO P
CHESTERMAN J
MACKENZIE AJA

CA No 06 of 2008

WAE	Applicant
v
THE QUEEN	Respondent

BRISBANE

DATE 27/03/2008

JUDGMENT

APPLICANT conducted his own case
MR M J COPLEY (instructed by the Department of Public
Prosecutions (Queensland)) for the respondent

THE PRESIDENT:  Mr Justice Chesterman will deliver his reasons first. 

CHESTERMAN J:  WAE seeks an extension of time within which to apply for leave to appeal against sentences imposed on him on 9 March 2006 in the District Court at Rockhampton. 

The applicant pleaded guilty on 1 March 2006 and was convicted of 10 counts of unlawful carnal knowledge and one count of maintaining an unlawful sexual relationship with a girl under the age of 16.  He was sentenced to five years imprisonment to be served concurrently on each of the counts of unlawful carnal knowledge and eight years imprisonment for the charge of maintaining the unlawful sexual relationship.  There was a recommendation that he be eligible for parole after serving three and a half years. 

The applicant for extension of time has been brought very late.  It was filed on 4 January 2008, one year and nine months out of time.  His application suggests that he wishes also to appeal against his convictions and a recent document seems to be an attempt to attack the sentences on the basis that the applicant was not guilty of the offences, or most of them. 

He is now 51 years of age.  The victim of his offending was a girl born on 1 May 1981.  She was 12 at the time when the first act of intercourse with the applicant occurred.  This act constituted count 1 in the indictment.  The other nine counts were of unlawful carnal knowledge in August and December 1994, May 1995, and May 1996.  Count 11 alleged the count of maintaining the unlawful sexual relationship between 19 February 1994 and 30 April 1997, the day before the girl turned 16. 

The circumstances relevant to each of the offences were reduced to writing and put in a document entitled "Schedule of Agreed Facts".  This document was put before the sentencing judge to form the factual basis for the exercise of the sentencing discretion.  A copy was shown to the applicant by his lawyers prior to the hearing and he signed it though now he professes not to have read it fully and to have difficulties with reading.  He does not say he can not read and was able to read quite well to the Court. 

There can be no doubt that the schedule of agreed facts was discussed by counsel and the learned judge.  The applicant must have been aware of its contents.  Moreover, he pleaded guilty to each of the counts on which he was arraigned.  He does not say that he did not understand the terms of the indictment read out to him to which he pleaded guilty. 

The recent outline of submissions provided by the applicant asserts that the first act of intercourse occurred in 1996 when the complainant was 15.  He therefore controverts his pleas of guilty to counts 1 to 8 on the indictment and count 11. 

The Court can not accept the veracity of the applicant's recent assertions.  His pleas of guilty are formal admissions of his commission of the offences alleged against him.  They were made after he had the benefit of legal representation and after he had given his assent to the statement of agreed facts.  The pleas of guilty are an insuperable obstacle to his recent stance of innocence. 

The applicant has made no application for leave to withdraw his pleas of guilty and has not advanced any basis for thinking that any such application should be entertained.  Accordingly, the Court should proceed on the basis that the applicant seeks only an extension of time within which to apply for leave to appeal against the sentences. 

The applicant offers no explanation for the delay in instituting a challenge to the sentences imposed upon him in March 2006.  What are said to be the grounds of his application contain complaints about the calibre of his legal representation in the District Court and a misapprehension caused by that inadequate representation of the particular charges contained on the indictment. 

His major complaint appears to be that he was not guilty of most of the charges.  As I have observed, the convictions can not be challenged, following as they do please of guilty which the applicant had not sought leave to withdraw. 

The applicant does complain that he did not receive a copy of the statement of agreed facts placed before the learned judge until the year 2007.  He does not say when in that year he obtained the document, nor does he ascribe the delay in applying for leave to appeal against the sentences to the late reception of that document.

The principles to be applied in an application of this kind were explained in R v Tait [1999] 2 Qd R 667 at 668. The Court will examine whether there is any good reason shown to account for the delay in making the application and whether it is in the interests of justice to grant the extension of time. This will often, perhaps usually, involve a provisional assessment of the strength of the applicant's case on appeal.

The Court noted that a relevant factor is the length of the delay, "It being much easier to excuse a short than a long delay."  As I have mentioned, the delay here is very long and no relevant explanation for it at all has been advanced.  That is sufficient to dispose of the application unless a provisional assessment of the merits of any appeal reveals them to be strong. 

The offences were committed over a four year period between 19 February 1994 and 30 April 1997 when the applicant was between 36 and 40 years of age.  His victim was the daughter of a friend.  The acts of unlawful intercourse commenced when she was 12 and continued until she was 16.  When she was 18, she married the applicant who was then 43, but they separated within 2 years. 

In passing sentence, the learned judge said:

"You had sexual intercourse with her repeatedly. You simply used the child to gratify your sexual drive. On one occasion the police spoke to you about your relationship. Both you and the child denied any sexual contact. On occasions during the course of the sexual relationship you warned her not to discuss what you were doing. These are offences of the upmost seriousness and you deserve the contempt of all men. Your own desire to gratify your sexual feelings had deprived the child of any semblance of a normal adolescence. You pursued your relationship with the child after she turned 16, eventually marrying her when she turned 18. The marriage did not last and you have, all in all, effectively deprived her of the opportunity of leading a normal life. Against you also is the fact that you are not a person of good character. You have a number of convictions including one for doing grievous bodily harm." 

His Honour went on to take into account the applicant's pleas of guilty, favourable references in his support, and evidence that he was not in "perfect health". 

It is apparent that the applicant took advantage of the child in a despicable way.  His importunate demands for sexual intercourse occurred in some circumstances which can only be described as depraved.  On occasions he was violent.

We have been referred to a number of authorities.  It is sufficient to refer to only two of them.  They are R v Batts COA 58 of 1997, and R v Matheson COA 19 of 1994.  These cases are ample authority to support the sentence imposed in this case which can not therefore be said to be excessive. 

There being no explanation for the delay in applying for leave to appeal and no worthwhile prospects of success on an appeal, I would refuse leave to extend time within which to apply for leave to appeal against the sentences. 
THE PRESIDENT:  The applicant's unsworn explanation for bringing this application so late is insufficient to explain the lengthy delay of one year and nine months.  In any case, for the reasons given by Mr Justice Chesterman, with which I agree, he has not demonstrated that if leave were granted he has sufficient prospects of success in an application for leave to appeal against sentence.  I agree that the application should be refused. 

MACKENZIE AJA:  I agree with the reasons given by Justice Chesterman and the additional reasons given by the President and the orders proposed.

THE PRESIDENT:  The application is refused. 

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