R v Wildey [2009] QCA 189 (14 July 2009)

Last Updated: 14 July 2009

SUPREME COURT OF QUEENSLAND

CITATION:	R v Wildey [2009] QCA 189
PARTIES:	R v WILDEY, Drew William (applicant)
FILE NO/S:	CA No 111 of 2009 DC No 1061 of 2008 DC No 2072 of 2008 DC No 2009 of 2008 DC No 2071 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	14 July 2009
DELIVERED AT:	Brisbane
HEARING DATE:	7 July 2009
JUDGES:	Chief Justice, Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for an extension of time within which to apply for leave to appeal against sentence refused
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where applicant sought extension of time within which to apply for leave to appeal against sentence – where application made following a significant delay – where the applicant argued that his sentence had been increased without him being given proper notice – where an administrative error was made in calculating the applicant’s full time discharge date – whether the applicant had provided a reasonable explanation for the delay – whether the proposed ground of appeal that the sentence is manifestly excessive has reasonable prospects of success – whether an extension of time in which to appeal against sentence should be granted AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited R v Norden [2009] QCA 42, cited R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied
COUNSEL:	The applicant appeared on his own behalf D C Boyle for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Qld) for the respondent

[1] CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Fraser JA. I agree that the application should be refused for those reasons.

[2] MUIR JA: I agree with the reasons of Fraser JA and with the order he proposes.

[3] FRASER JA: On 1 August 2008 the applicant was convicted on his pleas of guilty and sentenced for numerous offences:

(a) Indictment 1061 of 1008: two counts of receiving with a circumstance of aggravation, 11 counts of unlawful use of a motor vehicle, two counts of stealing, one count of entering premises and stealing, one count of burglary by a break and one count of possession of things used in connection with unlawful entry with a circumstance of aggravation.

(b) Ex-officio indictment: a further count of entering premises and stealing.

(c) Summary offences: assaulting a police officer, obstructing a police officer, possession of a dangerous drug, and possession of tainted property.

[4] In respect of the offences charged in indictment 1061 of 2008 and the ex-officio indictment, convictions were recorded and the applicant was sentenced to concurrent terms of imprisonment of two years. The sentencing judge declared that the whole of the period of 471 days during which the applicant was held in pre-sentence custody was deemed to be imprisonment already served under that sentence. The date upon which the applicant was sentenced, 1 August 2008, was fixed as the applicant's parole release date. He was convicted but not further punished for the summary offences.

[5] All of those offences were committed during the three year operational period of a sentence of three years imprisonment, suspended after the applicant had served 12 months imprisonment, which was imposed in the District Court on 18 November 2005. That sentence was for offences of entering a dwelling with intent by break and in company, assault occasioning bodily harm whilst in company, and common assault. The sentencing judge activated the suspended sentence and ordered that the applicant serve the whole period of two years imprisonment. 1 August 2008 was again fixed as the applicant's parole release date.

[6] On 18 May 2009 the applicant filed an application for leave to appeal against sentence and an application for an extension of time within which to bring the proposed appeal. The ground of the proposed appeal is that the sentence is manifestly excessive.

[7] In considering an application for an extension of time the Court takes into account whether any good reason is shown to account for the delay and whether it is in the interests of justice overall to grant an extension: see R v Tait [1998] QCA 304; [1999] 2 Qd R 667 at 668.

[8] The application was filed about nine and a half months late. The explanation for the delay expressed in the application is that the applicant was not notified of a Court hearing to change his sentence details, that he was not in Court when his sentence was altered, and that the changed sentence meant that he was to have an extra year on his head sentence. The application asserted that the suggested change to the applicant’s sentence was made in his absence.

[9] That explanation reflected the mistaken assertion in the applicant's applications that he was sentenced to three years imprisonment. As I have mentioned, the applicant was in fact sentenced to two years imprisonment, the earlier suspended imprisonment of two years was activated, and a parole release date of 1 August 2008 was fixed. The applicant did not seek to support that explanation for his delay in his written or oral submissions. Rather, he argued that it was not until 10 May 2009 that he was informed by an officer of Corrective Services that his "full time release date" was in July 2010 rather than, as he contended he had earlier been informed by Corrective Services officers, 16 April 2009. The respondent’s counsel conceded that Corrective Services officers told the applicant the wrong full time discharge date. So much was suggested by a letter of 30 June 2009 from the Sentence Management Co-ordinator at the Arthur Gorrie Correctional Centre which the respondent supplied to the Court. It appears that the error arose because the person who initially calculated the applicant's full time discharge date wrongly assumed that the sentencing judge's declaration of 471 days pre-sentence custody applied in relation to the activated two years imprisonment of the suspended sentence. There was no basis for any such assumption. The correct full time discharge date was 31 July 2010.

[10] This has assumed particular significance for the applicant because he has been charged with further offences which would presumably constitute breaches of his parole. The further charges allege that he committed offences on 10 May 2009. Had his full time discharge date been 16 April 2009, as he was wrongly advised, he would not have been on parole at the time of the alleged further offences.

[11] The mistake for which the applicant contended might prove to be material in the exercise of the discretion in sentencing the applicant for those further offences if he is convicted of them, but it does not provide a persuasive explanation for his delay in applying for leave to appeal against sentence. The applicant was present in court when he was sentenced and there was no ambiguity in the sentencing judge’s orders activating the suspended two years imprisonment and ordering immediate release on parole. The error in the calculation of the applicant's full time discharge date occurred after the applicant was sentenced and that error has no bearing upon the question whether the sentence was manifestly excessive.

[12] The applicant argued that his sentence was excessive when it was compared with a sentence imposed upon a co-offender of 12 months with parole after six months. This argument invokes the so-called “parity principle”. In Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 the High Court held that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a justifiable sense of grievance. If that arises, the severer sentence should be reduced even if it is otherwise an appropriate sentence within the permissible range of sentencing options. In Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 301-302, Dawson and Gaudron JJ pointed out that the parity principle requires due proportion between the sentences, which is to be determined after having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. Different criminal histories and custodial patterns may be such as to justify a real difference in the time each will serve in prison.

[13] The applicant has not provided any material which would justify the conclusion that this proposed ground of appeal has real prospects of success. The applicant did not provide any details of the facts taken into account by the judge who sentenced the applicant’s co-offender such as to enable this Court to compare her culpability with that of the applicant, and nor did the applicant provide any details of the co-offender's criminal history. Without objection by the applicant, the respondent tendered a copy of the co-offender’s criminal history. She had been convicted of a variety of offences, mostly offences of dishonesty and drug offences, between 1998 and 2006. Although wholly suspended terms of imprisonment (two months in 1999 and four months in 2004) were imposed on two occasions, she had not previously been imprisoned. That may be compared with the applicant’s very significant criminal history, which spanned the period from 1993 to 2005 and included a number of drug-related offences, offences of assault, and possession of tainted property. The applicant had previously been sentenced to lengthy periods of imprisonment and he had breached the terms of an order suspending a sentence of imprisonment on a previous occasion. The disparity between the co-offender’s sentence and the more severe sentence imposed upon the applicant is readily explicable by the applicant’s much worse criminal history. It is therefore not such as to give rise to a justifiable sense of grievance that might justify this Court in reviewing the applicant’s sentence.

[14] The applicant also argued that the sentencing judge was not informed that the applicant volunteered to police that he had committed the offences for which he was sentenced. This argument may invoke the principle that an offender who confesses to crimes not known to the authorities should generally be treated even more leniently than an offender who confesses to crimes known to the authorities: AB v The Queen (1999) 198 CLR 111; [1999] HCA 46.

[15] The argument is not meritorious. The particulars of the first count in the schedule of facts tendered at the sentencing hearing state that after police officers found sets of keys when they searched a room occupied by the applicant and his girlfriend on 4 October 2006, the applicant voluntarily attended at a police station, told police that he wished to participate in a "clear up record of interview with regard to a number of offences", and then participated in a record of interview. The particulars given of that first count and of most of the following counts then repeatedly refer to the applicant having participated in a record of interview with police on 4 October 2006 and having made admissions of the offences with which he was subsequently charged. In light of that material, the sentencing judge's remark that he had taken into account the applicant's pleas of guilty and "your co-operation with the police" was plainly intended to encompass the mitigating factor that the applicant had volunteered that he was guilty of offences previously unknown to police.

[16] The applicant also argued that he was not adequately represented by his solicitor at the sentence hearing, but that argument was not supported by any particulars or evidence of deficiencies in the solicitor’s conduct.

[17] The applicant did not argue that the sentence of two years for the offences charged in the indictments, with the benefit of the declaration of pre-sentence custody and immediate release on parole, was manifestly excessive. The applicant's real grievance is that his full time discharge date is 31 July 2010 rather than, as he was wrongly advised, 16 April 2009; but that followed inevitably from the activation of the suspended term of two years imprisonment. Section 147(2) of the Penalties and Sentences Act 1992 (Qld) obliged the sentencing judge to order the applicant to serve the whole period of suspended imprisonment unless the sentencing judge was of the opinion that it would be unjust to do so. The matters taken into account by his Honour amply demonstrate the difficulty in any contention that the sentencing judge erred in considering that it was not unjust to activate the whole of the suspended sentence: the applicant was a mature man, 31 years of age, when he committed his numerous offences; he had a significant criminal history (which, it should be noted, included both offences for which the applicant had been sentenced to substantial terms of imprisonment and a breach by the applicant of the terms of an order suspending a sentence of imprisonment on a previous occasion); the offence dealt with in the Brisbane District Court on 18 November 2005 for which the applicant was given the suspended sentence was described by that sentencing judge as "misguided vigilanteism"; that judge made it clear to the applicant that if he committed an offence punishable by imprisonment during the operational period of the suspended sentence the balance of the suspended sentence might be activated; and all of the applicant's numerous, subsequent offences were committed during the operational period of that suspended sentence. The sentencing judge also took into account the applicant's pleas of guilty and co-operation with the police, as well as the fact that the applicant committed the offences to support a drug addiction which, as his Honour observed, was not an excuse for committing the offences.

[18] It must also be borne in mind that the sentencing judge ameliorated the effect of the order activating the suspended imprisonment by fixing an immediate parole release date: see R v Norden [2009] QCA 42 at [14].

[19] The applicant does not have a persuasive explanation for his delay in applying for leave to appeal against sentence and there is not sufficient substance in that proposed application to justify the grant of the extension he requires.

[20] I would refuse the application for an extension of time within which to apply for leave to appeal against sentence.