Blake v Queensland Police Service [2015] QDC 95

DISTRICT COURT OF QUEENSLAND CITATION: Blake v Queensland Police Service [2015] QDC 95 PARTIES: TONY JAMES BLAKE (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) FILE NO/S: 2/15 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Rockhampton DELIVERED ON: 30 March 2015 DELIVERED AT: Rockhampton HEARING DATE: 30 March 2015 JUDGE: Burnett DCJ ORDER: 1. The application for extension of time for filing a notice of appeal be refused. CATCHWORDS: APPEAL – s 222 Justices Act 1886 – appeal against conviction – application for extension of time to file notice of appeal – where appeal has no reasonable prospects of success – where appellant entered a plea of guilty at first instance. LEGISLATION: Justices Act 1886 (Qld), ss 222, 224. CASES: Meissner v The Queen (1995) 184 CLR 132 R v Carkeet [2008] QCA 143 COUNSEL: The appellant appeared on his own behalf Solicitors for the respondent SOLICITORS: Office of the Director of Public Prosecutions for the respondent [1] HIS HONOUR: This is an application brought by a Mr Blake who was convicted in the Rockhampton Magistrates Court on the 29th of November for, among other things, a number of driving offences in respect of which he was subject to a penalty of three years’ disqualification with six months’ imprisonment. The parole release date was set -- 1 of 4 -- 2 at the 21st of March 2014, and the applicant has now served that time. However, he is still subject to the suspension order, and it is that order that he now appeals against. [2] On the day in question, it appears he appeared by a solicitor. In a letter written the 2nd of December 2013, his solicitor wrote confirming the fact that, on that day, he pleaded guilty to the various offences, including unlicensed driving, unregistered driving, and uninsured driving, that he pleaded guilty, and he was sentenced to six months’ jail, and his driver’s licence was suspended for three years, and he was also fined $616. There were a number of other sentences of imprisonment imposed, and he was informed that in respect of the period of imprisonment for the driving offence, together with the other offences, he would serve his time in respect of the driving offence concurrently with the head sentence of 12 months related to other offences. It is noted that time would have been allowed on account of time served to that point. Importantly, the letter proceeds to inform him in these terms: “You have a right to appeal against your sentence. Your solicitor has considered your sentence and does not recommend you appeal. To appeal against your sentence, you must lodge a notice of appeal in the District Court by 29 December 2013. You may also lodge the notice with the jail’s general manager. If you have any questions about your sentence or your right of appeal, please phone me on [stated phone number].” [3] The applicant did nothing, at least until he filed this application on the 9th of January 2015, that is, well over 12 months after the appeal date had lapsed at the end of December 2013. His explanation for not filing any notice of appeal was that he was given the advice recommending against appeal by his solicitor and that he acted upon that advice accepting that it had come from a “professional lawyer”, and he regarded it as final. He stated he wasn’t aware of the extension of time process being available, and he’d only just recently heard about it, and so sought to lodge this application for an extension of time on the basis he thought he would be: “…successful in my appeal 100 per cent if granted because I was not riding a motorcycle, and the legislation at Queensland Transport states that I didn’t require a licence, registration, or insurance.” [4] The thrust of the applicant’s contention is that the motorised pushbike that he was riding at the time was one under the stage of 250 watts, being a pedal-powered pushbike, and accordingly, it did not fall within the definition of a motor vehicle provided for in the relevant legislation. That’s the point that he wishes to pursue on appeal. [5] I should start by saying, this is notionally an appeal pursuant to s 222 of the Justices Act 1886 which provides that an appeal must be lodged within one month after the date of the order to a District Court judge. There is a provision to extend time, and it is that application which I’m entertaining today. In that sense, the process mirrors that which is available for appeals to the Court of Appeal of convictions within its jurisdiction, and in turn, invites a consideration of the same principles that have been identified by the Court of Appeal when entertaining these sorts of applications. -- 2 of 4 -- 3 [6] In R v Carkeet [2008] QCA 143, Fraser JA, in considering a similar application, commencing at [20], made these observations: “Considerations relevant to the Court’s discretion whether to grant an extension of time within which to appeal against conviction were discussed in this Court’s decision in R v Tait, in which it was said: ‘[T]he Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension. That may involve some assessment of whether the appeal seems to be a viable one. It is not to be expected that in all such cases the Court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the Court will often find it appropriate to make some provisional assessment of the strength of the applicant's appeal, and take that into account in deciding whether it is a fit case for granting the extension. Other factors include prejudice to the respondent, but in the case of criminal appeals this is not often a live issue. Another factor is the length of the delay, it being much easier to excuse a short than a long delay.’” [7] In this case, there appears to be one significant difficulty from the applicant’s prospects concerning his appeal which impacts upon the discretion to be exercised, that is, that he entered a plea of guilty to the charge before the Magistrate. In R v Carkeet (supra), the Court there too was considering an instance where a defendant had entered a plea of guilty. In that regard, his Honour Fraser JA noted at [22]: “It is usually very difficult for an appellant to establish any miscarriage of justice in a conviction consequent upon the appellant’s plea of guilty. In Meissner v The Queen, Brennan, Toohey and McHugh JJ said: ‘A court will act on a plea of guilty . . . when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.’” [8] Likewise, Dawson J in Meissner v The Queen (1995) 184 CLR 132 made these observations at page 157: “It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon -- 3 of 4 -- 4 the facts admitted by the plea he could not in law have been guilty of the offence.” [9] In this case, this was an entry of a plea of guilty to a traffic offence. The facts would have been before the Magistrate and able to have been argued on that occasion, but they were not. The plea was one which appears to have been informed, being one which was entered openly, indeed, by an appellant who has had considerable interchange with the criminal justice system and who would be familiar with its processes and at a time when he was legally represented. It seems in those circumstances that it is unlikely that on appeal a Court would be satisfied there was a miscarriage of justice in the event where he did enter a plea of guilty to the offence in question, and on that basis, the discretion ought not be exercised in his favour. [10] The real issue here for the appellant, however, is not so much the plea, but rather, the sentence. He is particularly unhappy that part of the sentence involved a three year suspension of his driver’s licence. The appellant’s traffic history could best be described as appalling. He has held a driver's licence since approximately the mid-1980s, but between 1989 and 2014, appears to have had his licence suspended or disqualified on no less than 14 occasions. It is an appalling record by any measure. [11] It follows by inference that any complaint that is made about the excessiveness of the penalty which was imposed in the circumstances is also unlikely to have any reasonable prospects. It seems, having regard to his driving history, that the penalty that was imposed was the only appropriate penalty that could have been imposed in the instance before the learned Magistrate. I’m not persuaded that that matter will have any prospects of appeal. [12] The other matter which warrants consideration, although it is not determinative of the applicant’s application, is the delay. It is a lengthy delay. I understand his submissions about his own personal difficulties, but the fact remains, he presents as a person who has had extensive dealings with the courts. He is or ought be aware that courts have strict time limitations. To wait over 12 months before bringing an application for leave to appeal is too long, notwithstanding the fact that he says he took advice of his lawyer not to appeal and only more recently became aware of his capacity to seek leave to extend that time. The fact remains that this is an appeal that, in my view, is hopeless, and accordingly, it ought not be afforded any life by an extension of time to appeal. The application for extension of time to appeal is dismissed. -- 4 of 4 --