and Daniel Joseph Warwick v The Queen

[2014] VSCA 114

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0243
DANIEL JOSEPH WARWICK	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 June 2014
DATE OF JUDGMENT:	6 June 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 114
JUDGMENT APPEALED FROM:	[2012] VSC 382 (Hollingworth J)

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CRIMINAL LAW – Sentence – Application for an extension of time to apply for leave to appeal against sentence – Whether evidence is fresh evidence – Whether matters alleged to constitute fresh evidence were known to sentencing judge – Matters alleged to constitute fresh evidence taken into account by sentencing judge – Application 13 months out of time – No realistic prospects of success of application for leave to appeal against sentence – No reasonable prospect of court imposing less severe sentence – Application refused – Criminal Procedure Act 2009, ss 279(1), 280(1) and 281.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Gillespie Jones	Revill & Papa Lawyers
For the Respondent	Mr DA Trapnell QC	Mr C Hyland, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

Introduction

1. On 17 August 2012, the applicant was found guilty by a jury of one charge of intentionally causing serious injury and one charge of conduct endangering life. On 13 September 2012, Hollingworth J sentenced the applicant to 5 years and 9 months’ imprisonment on the count of intentionally causing serious injury and 2 years’ imprisonment on the count of conduct endangering life.  Her Honour ordered 3 months of the sentence imposed for conduct endangering life to be served cumulatively with the sentence for intentionally causing serious injury, making a total effective sentence of 6 years’ imprisonment, and directed that the applicant serve a non-parole period of 4 years.

1. On 9 December 2013, the applicant filed an application for leave to appeal out of time for leave to appeal against his conviction on the count of conduct endangering life and for leave to appeal out of time for leave to appeal against the sentence imposed by the trial judge.  The proposed grounds of appeal were as follows:

1.        The reckless endangerment charge was bad for duplicity.

2.        The sentence ought be set aside by reason of fresh evidence.

1. On 20 January 2014, the Deputy Registrar (Legal) refused the applicant’s application for an extension of time for leave to appeal against conviction and sentence.  On 24 January 2014, the applicant filed a Notice of Election to renew his application.  Thus, the matter now comes before this Court.  This morning, the applicant abandoned his application for an extension of time for leave to appeal against conviction.

The principles to be applied

1. The time limit for seeking leave to appeal against the applicant’s sentence was 28 days after the day on which the applicant was sentenced.[1]  The principles which govern an application for extension of time in which to apply for leave to appeal were distilled by Gowans J in the judgment of the Court of Criminal Appeal in R v John Edward Darby,[2] as follows:

(1)the prescription by the statute of the time limit for giving notice is intended to secure finality and compliance is intended to be required in the ordinary case;

(2)extension of the time is a matter for the discretion of the Court, and the applicant must put material and considerations before the Court which will persuade it to exercise its discretion in favour of an extension;

(3)rigid restrictions cannot be imposed on the exercise of discretion but in general the Court will require special and substantial reasons for extending the time;

(4)the longer the time which elapses since the expiration of the statutory period and the more the changes that have taken place in the meantime, the more exceptional will the circumstances put before the Court have to be;

(5)it is the practice of the Court not to grant any considerable extension of time unless it is satisfied that there are such merits in the proposed appeal that it would probably succeed;

(6)a reasonably satisfactory account of the failure to comply with the statutory requirement needs to be forthcoming.

[1]Criminal Procedure Act 2009 s 279(1).

[2]Unreported, Supreme Court of Victoria, 2 May 1975;  see also R v O’Keefe (1979) VR 1, 5; Bowling v R [2013] VSCA 87 [14]-[18] (Redlich JA); Soteriou v R [2013] VSCA 328 [55] (Ashley JA); Kumar v R [2014] VSCA 102 [8] (Nettle and Redlich JJA and Almond AJA).

Applicant’s reasons for delay

1. The application for an extension of time in which to apply for leave to appeal against his sentence was filed more than 13 months after the time within which the applicant had to apply for leave to appeal against his sentence.  In support of his application, the applicant’s solicitor has sworn as follows:

I am informed and believe that the applicant has been in solitary confinement since the 30^th September 2011 in a very small cell without communication with other prisoners.  He eats in his cell.  He is allowed out of his cell for one hour a day.  In that hour he must avail himself of any telephone call that is available to him.  He has no access to work, ordinary rehabilitative and educational programmes.  He has severely restricted visiting privileges.

1. In his application for an extension of time, the applicant gives as his reason for failing to file and serve an application for leave to appeal within the prescribed time as:

The application is dependent on fresh evidence, which was not in existence at the time of the expiry of time.

1. It would seem that the fresh evidence alleged is the circumstances in which the applicant is held in custody as deposed to by the applicant’s solicitor.  However, an examination of the trial judge’s sentencing remarks discloses that the facts the applicant relies upon are neither new nor fresh.  In her reasons for sentence,[3] the trial judge said:

As far as conditions of imprisonment are concerned, since September last year you have been kept isolated or separated from other prisoners, typically spending 23 out of 24 hours each day in your own cell.  You have also had reduced prison visits during this period.  I am told that this situation has come about for your own protection, because you have been accused of threatening another prisoner (an accusation which you deny).  There is no evidence before me as to how long you might remain in this situation, but I have had some regard to the conditions of imprisonment in which you have been held, in determining an appropriate sentence.[4]

[3]R v Warwick (Sentence) [2012] VSC 382 (‘Reasons’).

[4]Ibid [39].

1. In response to the applicant’s solicitor’s affidavit, the Crown filed an initial affidavit in which it was asserted that the applicant has two hours and 30 minutes out of his cell every day, and is performing cottage industry work and attempting to learn Spanish.  Additionally, it was said that the applicant is entitled to one contact visit per month and one non-contact visit per week.  In a subsequent and more detailed affidavit, Mr Brendan Money, the Assistant Commissioner, Sentence Management Branch of Corrections Victoria, has deposed with greater specificity to the circumstances of the applicant’s incarceration.  Mr Money has deposed that the applicant is currently in a standard cell in Banksia Unit, ‘with television, kettle and fan, and he has a stereo because he does not like television much’.

1. In addition, Mr Money deposes that Banksia is currently being refurbished, and this has led to all prisoners having reduced hours out of their cells, ‘but the applicant is still having 1 to 2.5 hours out of cell each day’.  Further, the applicant has access to exercise equipment and opportunities (although limited) for industry work.

1. It is not necessary to resolve the conflict in the affidavit material.  Accepting the evidence at its highest for the applicant, there is simply no basis for asserting that there has been any relevant change in position from the position as it was described and understood by the trial judge at the time of sentence.  That said, if one accepts the affidavit evidence filed by the Crown, the lack of merit in the current application is made more manifest.

Background facts

1. The facts upon which the applicant’s convictions were based may be briefly stated as follows.  On 31 May 2011, the applicant was telephoned by his niece and told that she had been bashed and robbed by some African men at a mall.  The applicant arrived at the mall a few minutes later armed with a loaded revolver.  The applicant’s niece was no longer in any danger when the applicant arrived, but she was still distressed.

1. The applicant found a group of people that included some African men sitting on a bench.  The applicant approached the group and aggressively demanded to know which of them had assaulted or robbed his niece.  The applicant’s niece told the applicant that none of the people sitting on the bench had assaulted or robbed her.  The applicant and his niece then walked away from the group to look elsewhere for the men who had assaulted her.  As they walked away, one of the men (a Mr Deng) yelled out angrily to the applicant.  The applicant’s immediate response was to turn around and fire three shots in quick succession. 

1. The first shot passed through the front and out the back of Mr Deng’s upper left sleeve, narrowly missing his arm.  The bullet hit the seat where Mr Deng and the others in his group had been sitting.  It was this shot that formed the basis for the charge of conduct endangering life.  The second shot hit Mr Deng in the upper left thigh and caused him to drop to the ground.  This shot severed Mr Deng’s femoral artery, causing such severe blood loss that he went into cardiac arrest en route to the hospital.  This shot formed the basis for the charge of intentionally causing serious injury.  The third shot did not hit anybody, and was not the subject of a charge at trial.

1. In her sentencing remarks, the trial judge noted the applicant’s long history of criminal offending, involving convictions for about 40 separate offences, between February 1999 and June 2010.[5]  Additionally, her Honour noted the aggravating factor that the current offences were committed while the applicant was on parole.[6]

   [5]Reasons [27].

   [6]Ibid [31].

The resolution of this application

1. The applicant’s material does not disclose any basis upon which the trial judge’s sentencing discretion might be reopened.  The matters the applicant now agitates were known to the judge, and taken into account when the applicant was sentenced.  The application for leave to appeal against sentence is more than a year out of time.  The application has no realistic prospects of success, as there is no reasonable prospect that, even if the sentencing discretion was to be reopened, this Court would impose a less severe sentence than that already imposed at first instance.[7]   Additionally, and having regard to the matters known to the judge, at the time sentence was imposed, concerning the conditions of the applicant’s imprisonment,[8] the applicant’s delay is unexplained.

   [7]Criminal Procedure Act 2009 s 280(1) (see also s 281).

   [8]Reasons [39].

1. For these reasons, this application must be refused.

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