Baltas v The Queen
[2011] VSCA 169
•10 June 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 0294 2010
S APCR 0373 2010
| PAUL BALTAS | Applicant |
| V | |
| THE QUEEN | Respondent |
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| JUDGES | NEAVE, REDLICH and BONGIORNO JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 9 June 2011 |
| DATE OF JUDGMENT | 10 June 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 169 |
| JUDGMENT APPEALED FROM | R v Baltas (Unreported, County Court, Judge Tinney, 6 August 2010) |
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CRIMINAL LAW – Application for leave to appeal against sentence – Refused by single judge – Election to have application heard by three judges – Applicant pleaded guilty to two counts of theft, four counts of attempted theft and one count each of burglary, attempting to obtain property by deception and obtaining property by deception –Extensive prior convictions – Lenient sentence – Application refused.
CRIMINAL LAW – Extension of time within which to file notice of appeal against conviction on count of burglary – Plea of guilty – Short lapse of time – No chance of appeal being allowed – Application refused.
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| Appearances: | Counsel | Solicitors |
| The Applicant in person | ||
| For the Respondent | Ms Amanda Forrester | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA
REDLICH JA
BONGIORNO JA:
On 28 July 2010, the applicant, Paul Baltas, pleaded guilty to nine offences, comprising two counts of theft, four counts of attempted theft and one count each of burglary, attempting to obtain property by deception and obtaining property by deception. He was sentenced for those offences on 6 August 2010.
Mr Baltas filed a notice of application for leave to appeal against his burglary conviction. The notice was dated 2 September 2010 (a day before the date on which the 28 day time limit for the filing of a notice of appeal expired), but the envelope containing the notice was postmarked 14 September and it was received by the Crown and in the Registry on 15 September 2010. On 18 October 2010,[1] the applicant filed an application for an extension of time within which to lodge that notice of appeal.
[1]The document was dated 17 October 2010.
On 25 February 2011, the Registrar of Criminal Appeals refused the application. The applicant now seeks to have that application reheard and determined.
Mr Baltas also sought leave to appeal against his sentence. Leave was refused by a single judge of this Court on 17 November 2010. Mr Baltas filed a notice electing to have his application for leave to appeal against sentence (‘election application’) determined by a Court constituted by two or three judges on 23 December 2010, on the basis that he received the notification of the refusal of leave to appeal against sentence on 22 December 2011.[2]
[2]The time limit for filing a notice election to have his application heard by a bench of two or three judges is 10 days from the notification of that decision.
These reasons relate to his application for extension of time in relation to his conviction appeal and to his election application
Background to the applications
It is necessary to set out the matters which led to the applicant pleading guilty to the count of burglary. The matter was listed for trial on 26 July 2010 and the applicant was arraigned on a presentment which included counts of arson and conduct endangering serious injury (counts 8 and 9) as well as the other offences to which he pleaded guilty.
At that point, the applicant pleaded not guilty to counts 8 and 9 as well as to the burglary count (count 6). Two witnesses gave evidence at a Basha hearing.[3] A jury was then empanelled and counsel delivered their opening addresses. The applicant disputed his involvement in the arson and in the conduct endangering serious injury.[4] In his opening address, defence counsel said that the issues in dispute in the burglary count were whether the applicant entered the premises as a trespasser and whether he had any intention to steal when he entered the victim’s unit.
[3](1989) 39 A Crim R 337.
[4]Senior Constable Stephen Howard of Victoria Police, who had attended upon the victim after he was found lying on the street and the fire at the victim’s unit, and Nicholas Kallio, who observed the fire, were earlier examined on 26 and 27 July 2010 at a voir dire.
After the trial commenced, the victim of the offending, Brian Fenn, gave evidence and was cross-examined.[5] His Honour described Mr Fenn’s evidence and what then followed:
At the end of his evidence, I infer that unsurprisingly, the prosecutor had some reservations as to the arson and conduct endangering counts further proceeding. The matter was stood down, and a short time later, on Wednesday 28 July, the parties came back before me and announced that the matter had settled. That is, that if re-arraigned, I was told you would now plead guilty to the burglary count [count 6] and that no evidence would be led in support of the arson and conduct endangering counts. That is what transpired.
Given that s 241 of the Criminal Procedure Act 2009 applied, by virtue of the transitional provisions in Schedule 4 of that Act, I then directed that an entry of not guilty be made in the court records as to Count 8, [arson], and Count 9, [conduct endangering serious injury].
Similarly, upon your re-arraignment before the jury, I then directed that an entry of guilty be made in the records as to Count 6, and discharged the jury from giving verdicts on those matters that had previously been in dispute. There had of course never been any issue joined in this Court in relation to Counts 1 to 5, Count 7, and Counts 10 and 11 to which you had already pleaded guilty upon arraignment.[6]
[5]A statement of Amanda Lacey (see [13] below) was read into evidence.
[6]R v Baltas (Unreported, County Court, Judge Tinney, 6 August 2010) (‘Reasons’), [6]-[8].
After hearing a plea in mitigation of sentence on 2 August 2010, the learned sentencing judge sentenced the applicant as follows:
Count
Offence
Sentence
Cumulation
1
Theft
6 months’ imprisonment
3 months
2
Attempted theft
3 months’ imprisonment
1 month
3
Attempted theft
3 months’ imprisonment
4
Attempted theft
3 months’ imprisonment
5
Attempted theft
3 months’ imprisonment
6
Burglary
2 years and 9 months’ imprisonment
Base sentence
7
Theft
2 months’ imprisonment
10
Attempting to obtain property by deception
3 months’ imprisonment
11
Attempting to obtain property by deception
6 months’ imprisonment
3 months
This amounted to a total effective sentence of 3 years and 4 months’ imprisonment. The judge directed that the applicant serve a period of 2 years’ imprisonment before being eligible for parole. In the statement made pursuant to s 6AAA of the Sentencing Act 1991, his Honour indicated that, if the applicant had not pleaded guilty, he would have been sentenced to a total effective sentence of 4 years and 3 months’ imprisonment with a non-parole period of 3 years and 3 months.
By the time the application for leave to appeal against sentence was heard on 17 November 2010, the applicant was no longer legally represented. At that hearing, Mr Baltas submitted that the sentence imposed on the counts of burglary and obtaining property by deception were manifestly excessive, that there was a failure to allow for sufficient concurrency, and that the judge did not take account of the fact that he had been imprisoned between December 2008 and the time of sentence, and the fact that, from 26 March 2006, he had been serving another sentence. He also relied on illness in his family and submitted that the impact of the sentence was crushing.
His application for leave to appeal against sentence was refused on the basis that none of his grounds of appeal were reasonably arguable. As we have said, the applicant now seeks to have that application reconsidered and determined.
The circumstances of the offending and offender
All the offences relate to events which took place around midnight on 12 December 2008 and on the following day. The victim had been drinking from the early evening and was very drunk by the time he met the applicant in the vicinity of a supermarket.
Amanda Lacey, whose statement was read in evidence, observed the applicant from the nearby pizza shop at which she worked. She recognised the victim as a regular customer of the store. By the time she arrived, the victim was already in the applicant’s car. The judge did not sentence the applicant on the basis that the applicant selected the victim at the outset as a target for his offending, but concluded that, very shortly after meeting the victim, the applicant decided to exploit the victim’s intoxication and commit crimes against him.
It was not disputed that the applicant then went to the victim’s unit with him. Nor was it ultimately disputed that the applicant obtained the applicant’s wallet (count 1) shortly after they met and then made four attempts to withdraw money from an ATM using the applicant’s bank card (counts 2 to 5). At about 1 am, the victim was found lying unconscious on a nature strip a short distance away by a passing motorist. Not long afterwards, the victim’s unit was destroyed by fire. This was the subject of counts 8 and 9 on the presentment, on which verdicts of not guilty were directed.
The victim was described by the judge as casting ‘no useful light’ on events subsequent to the applicant’s arrival at the victim’s home. He could not recall the applicant’s or his own movements but had a vague recollection of the applicant’s presence. The judge said that, given the guilty plea entered by the applicant, he had admitted that he entered the unit ‘as a trespasser with the requisite intent’.[7]
[7]Emphasis in original.
At some point after arriving at the victim’s unit, the applicant filled a number of bags from the unit with items belonging to victim. The judge was unable to determine with precision when this occurred or where the victim was at the time.
At about 2.45 am that same morning, witnesses observed the applicant, removing a number of bags from his parked car. These contained the items he had stolen from the victim. The applicant attempted to hide these bags and also threw a set of keys belonging to the victim onto a nature strip. This conduct was repeated and observed by witnesses later that morning. All the items, including a DVD with the applicant’s fingerprint on it, which was found in the hidden bags of items, were recovered later that day.
Counts 10 and 11 relate respectively to the applicant’s attempt to sell, and successful sale, of a computer hard drive stolen from the victim. On 14 December 2008, the applicant attended a pawn shop in Melbourne with two others and attempted to sell the item. After failing in this attempt, the applicant sold the item to an unknown person off the street. In both instances, the applicant represented himself as the owner of the item.
Police arrested and interviewed the applicant on 17 December 2008. The judge described his record of interview, as containing some admissions but having involved a ‘collection of lies and half-truths about these events’. He said that:
Initially you seemed to be saying that you had taken only the computer hard drive, screen, and keyboard (see Question 110). You described then giving that to your mate on the night who happened by, and taking nothing else (see Question 139 and 185). This was false of course. You described grabbing the wallet, but in the context of looking for the address to take the hapless Mr Fenn home (see Question 78). At that point you did not mention the use by you of the card at the ATM, though you were later to mention that fact. Ultimately you seemed to admit the theft of many of the items. Of course, throughout, you denied completely any involvement in the arson or the turning on of the gas which was the foundational facts of the conduct endangering. Perhaps the less said of the interview the better. It is a very fragile and shaky foundation from which to mount any submission as to your having any genuine remorse.[8]
[8]Reasons, [24].
The applicant was aged 39 years at the time of offending and 41 years at the date of sentence. His 72 year old father, his partner of 15 years and their young daughter were present at the plea hearing. His partner continued to visit him while in custody before sentencing.
The applicant’s parents, who emigrated from Greece, separated when the applicant was aged 23 years. At the date of sentence, his father required a shoulder reconstruction and surgery for carpel-tunnel syndrome and his mother had had open heart surgery within the preceding year.
Upon completing Year 9 of his secondary schooling, the applicant, who had already been experiencing problems associated with cannabis use, left school to work at his uncle’s seafood restaurant in Croydon. He then commenced a chef’s apprenticeship for two and a half years. From that point on to the date of sentencing, the applicant experienced severe problems with cannabis and heroin abuse. Exhibits tendered at the plea showed that the applicant was drug free at the date of sentencing.
The applicant had spent a significant portion of the last 18 years in a custodial setting, though he managed to obtain some employment while not imprisoned. Before the date of sentencing for these offences, he had worked full time at Siemens for a period of eight months.
The judge referred to the applicant having suffered a serious sexual assault at the age of 10 and a repeated serious sexual assault in custody when the applicant was aged 17 years. This was said to have caused the applicant great difficulty and was accordingly taken into account in mitigation. The applicant was also said to have suffered residual hearing loss in both ears as a result on a prison assault in 2005.
Grounds of appeal
The applicant, who was not legally represented, relied upon 10 grounds of appeal in support of his applications for leave to appeal against conviction and sentence.
In relation to the appeal against conviction, the applicant alleged that, despite his guilty plea, he should not have been convicted of burglary because it was not proven beyond reasonable doubt that he had entered Mr Fenn’s unit as a trespasser. His stated reason for failing to comply with the prescribed time limit was that:
I was previously at MRC and due to an incident I was moved to Barwon Prison. Within that time I had sent the application to both the Court of Appeal and Office of Public Prosecution however due to my movement I was not in a position to fie it earlier than I did.
The grounds relied upon in relation to the application against sentence were that the judge erred in adopting the sentencing range he did (ground 1), that the judge erred in sentencing the applicant on an incorrect basis (ground 2) and that the individual sentences and the orders for cumulation were manifestly excessive (ground 3).
Application for extension of time to appeal against conviction
Submissions
The applicant attributed the late filing of his notice of appeal against conviction to the fact that he was moved from the Melbourne Remand Centre to Barwon prison on 23 August as a result of an unspecified incident. He has now provided a further explanation of the late filing of his notice of application, which is that:
On the 22nd of August whilst I was at the MRC I was involved in an [assault] where I was [assaulted] by 6 inmates. I sustained injuries to my eye & head.
I was escorted to BARWON PRISONS [Melaleuca] HIGH SECURITY UNIT.
My property did not follow me until the next week.
Due to the injuries I sustained from the [Assault], I could not write. Whilst I was at the MRC – ST ALBANS at the time, I was awaiting for my representation Valos Black to send me the documents (FORMAL) to lodge my Intention to Appeal Against Conviction. Due to my transfer, I did not [receive] these letters until September and because of the Jail transfer, I had no phone contact, nor money to be able to call my representation.
His written submissions also said that it had taken approximately one month for documents sent to him from this Court on 17 December 2010 and 1 March 2011 to be received.
So far as the merits of the appeal are concerned, the applicant’s complaint related to the victim’s evidence that he vaguely remembered inviting the applicant into his home for coffee. He submitted that it was only after he had been invited into the premises that he formed the intent to steal. It was on that basis that he contended that the elements of the offence had not been established.[9]
[9]Crimes Act 1958, s76(1).
The applicant conceded that he had pleaded guilty to the count of burglary. However, he said he had done so on the basis of his first entry into the house. He submitted that the Crown case was based on his entry into the premises for a second time and the removal of the victim’s property on that second entry. He submitted that the failure of the Crown to establish trespass on the first entry and the fact that his plea of guilty was limited to the first entry required the Court to allow his appeal against his conviction for burglary.
The applicant also contended that the judge should not have allowed an adjournment to allow plea negotiations because there was no evidence that he had committed the offence of arson and that he had not instructed his legal advisors to plead guilty to the offence on the basis of a second entry.
Counsel for the Crown submitted that the application of an extension of time should be refused because the applicant’s reasons for failing to file a notice of appeal within time were not persuasive. Counsel also relied on the failure of the applicant to explain how he managed to instruct his solicitors retained to act for him in the application for leave to appeal against sentence, while the transfers between units were affecting his ability to receive and presumably send mail.
It was further submitted that the proposed appeal was unlikely to succeed because the applicant had pleaded guilty to burglary. The applicant was legally represented and there was no suggestion that he misunderstood the effect of pleading guilty or was pressured to do so. There was no miscarriage of justice in this case and the applicant had not been convicted of offences which he did not commit.
Conclusion on application for extension of time
The principles governing an application for extension of time are conveniently set out in R v O’Keefe:[10]
[10][1979] VR 1, these principles are themselves based on the statements of principle laid down by Gowans J in R v Darby (Unreported, Supreme Court of Victoria, 2 May 1975) and were approved in R v Davis (2003) 6 VR 538, [5].
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; and
6.a reasonably satisfactory account of the failure to comply with the statutory requirement needs to be forthcoming.[11]
[11][1979] VR 1, 5.
In this case, the notice of appeal should have been filed by 3 September 2010. We do not accept that the September 2 date on the notice was correct, given that the envelope was postmarked on 14 September. Nevertheless, the notice was only 11 days out of time.
We also consider that the applicant’s explanation for filing the notice out of time was unconvincing, given that he was able to instruct his then solicitors to file a notice of application for leave to appeal against sentence within time.
However, even if the applicant’s explanation were accepted, we would refuse the application for an extension of time because the applicant’s grounds of appeal have no chance of success.
The basis on which the applicant had pleaded guilty to the count of burglary was carefully explored by his Honour during the plea hearing. It was made clear that the Crown was not relying upon a second entry but on the fact that the applicant was a trespasser on the first entry.
In R v Ahmed,[12] this Court quashed the appellant’s convictions arising out of a guilty plea, because, as a consequence of an incorrect interpretation of provisions in the Drugs, Poisons and Controlled Substances Act 1981, the applicant had pleaded guilty to offences of which he could not lawfully have been convicted. Buchanan JA said that:
An appeal against conviction by an offender who has pleaded guilty will be entertained if it appears that upon the admitted facts the accused could not in law have been convicted of the offence charged or otherwise it appears that there has been a miscarriage of justice.[13]
[12](2007) 17 VR 454.
[13]Ibid 459 [20] (Nettle JA agreeing). See also R v Holden [2009] VSCA 254; Rajic v The Queen [2011] VSCA 51.
This is not a case like Ahmed where the applicant could not lawfully be convicted of the offence to which he pleaded guilty. As the exchange between counsel and the judge shows, the applicant pleaded guilty to burglary on the basis of the Crown case that he entered the premises as a trespasser with an intention to steal. He must be taken by his plea to have admitted that he entered the premises without the victim’s consent.
By pleading guilty, the applicant admitted that the elements of the offence were satisfied. He was legally represented and it is not alleged that the applicant did not understand the nature of a guilty plea or that he was coerced to make it.
To conclude, the applicant’s reasons for failing to comply with time limits are flimsy and his appeal against conviction is unmeritorious. We would therefore refuse the application for an extension of time to appeal against conviction.
Election application
Submissions
The applicant relied on two grounds of appeal at the first hearing of the application for leave to appeal against sentence. He submitted that the sentence was manifestly excessive and that the sentencing judge had not taken account of the fact that he would be required to serve an additional six month period for a breach of parole. In refusing leave, Ashley JA observed that:
the judge imposed a series of sentences which, with cumulation (which was very modest), yielded a result well in keeping with the circumstances of the offence and the offender. I do not consider that either of the grounds of appeal are reasonably arguable.
The applicant now puts forward additional matters in support of his application for leave to appeal against sentence.
First, he complains about the treatment of the counts of arson and reckless conduct endangering life. He submits that there was never any evidence directly implicating him in lighting the fire at the victim’s unit. He complains that statements made by Senior Constable Hayward and another witness were only made available to him shortly before the trial. He submitted that, if these statements been relied upon at the committal, the Magistrate would have not have committed him to trial on those counts and the remaining matters would have been dealt with in the Magistrates’ Court, rather than the County Court.
The applicant disputed the sentencing judge’s statement that, although it was the count of arson which brought the applicant within the County Court’s jurisdiction, ‘there would have been some real and serious prospect of a Magistrate refusing summary jurisdiction (even without that disputed count) given [the applicant’s] history’.[14] The applicant’s related complaint was that the judge erred in adopting a sentencing range by reference to sentences imposed in the County Court and not the Magistrates’ Court. He submitted that this was unfair because he was denied the opportunity to plead guilty in the Magistrates’ Court for the reasons set out above.
[14]Reasons, [43].
The applicant also relied on the following matters to support his claim that the individual sentences and orders for cumulation were manifestly excessive. These included:
(a) the lack of premeditation for the offending;
(b) his offer to plead guilty to the count of burglary on 26 July 2010 (ie, before the commencement of the trial and two days earlier than the date on which the agreement was reached with the Crown). He said the offer was made at the earliest opportunity after the Crown offered not to pursue the arson and reckless conduct counts;
(c) the offences had not been committed while the applicant was under the influence of drugs (he relied on his employment at that time, urine screens said have been given to the Department of Human Services and his attendance at counselling sessions);
(d) mitigating circumstances including his sexual assault as a 10 year old child by a intoxicated offender and his assault at the Melbourne Remand Centre by six inmates, which resulted in him being placed in the Gangland Crimes Unit at Barwon Prison; and
(e) his remorse and feelings of guilt which manifested themselves in his self-questioning as to why he would commit such offences, which were uncharacteristic of that period of his life.
In reply to the applicant’s complaint that he should have been dealt with in the Magistrates’ Court, counsel for the Crown submitted that, even if the applicant had not been committed for trial for arson or reckless conduct endangering life, it was unlikely that this matter would have been dealt with in the Magistrates’ Court. In any event, the judge was aware of the circumstances in which the matter came before the County Court and did not fail to take account of any matters which were required to be given weight.
Conclusion
In our opinion, none of the grounds on which the applicant relied are reasonably arguable. The applicant’s complaint that he might have been sentenced in the Magistrate’s Court if the Crown had not proceeded with counts 8 and 9 does not provide a reasonably arguable basis for challenging sentences imposed in the County Court.
Although counts 1 to 7 occurred within a short period of time, the sentences imposed by his Honour were relatively lenient and the orders for cumulation were modest. The sentencing judge ordered that the sentences which he imposed be served concurrently with the other terms of imprisonment being served by the applicant, which were a six month term imposed in March 2010 and a term arising from the cancellation of his parole by the Parole Board on 14 July 2010. The applicant has an appalling history of offending over a period of 20 years until 2007. As the sentencing judge said in his reasons, the applicant had more that 45 convictions for burglary and over 90 convictions for theft, as well as convictions for armed robbery, obtaining property by deception, attempted burglary, attempted theft and a variety of other offences. It is always possible that an offender may break free of a previous history of offending, but in our opinion, the sentencing judge correctly found that the applicant’s prospects of rehabilitation were bleak.
For these reasons, we would refuse the application for leave to appeal against sentence.
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