Bolton (a pseudonym) v The Queen - [2021] VSCA 117

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0152

CLYDE BOLTON (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.

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JUDGE:	NIALL JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 April 2021
DATE OF JUDGMENT:	11 May 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 117
JUDGMENT APPEALED FROM:	DPP v Bolton (a pseudonym) (Unreported, County Court of Victoria, Judge Gaynor, 9 August 2019)

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CRIMINAL LAW – Application for extension of time to file application for leave to appeal against conviction – Applicant convicted of six charges of incest, one charge of gross indecency with a person under 16 and one charge of committing an indecent act with a child under 16 – If extension of time and leave granted, applicant seeks to challenge one conviction of incest on basis that evidence did not establish penetration – Applicant accepts that if conviction set aside a conviction for attempted incest could be entered – Inadequate explanation for delay – Importance of finality – Very likely that no lesser sentence would be imposed for attempted incest – Application for extension refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Stary Norton Halphen
For the Respondent	Ms D I Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA:

Following a trial in the County Court before Judge Gaynor and a jury, the applicant was convicted of eight sexual offences, comprising six charges of incest committed against his daughter and one of his granddaughters, one charge of gross indecency with a person under 16, namely, his daughter, and one charge of committing an indecent act with a child under 16, his granddaughter.

All but one of the incest charges related to allegations of oral penetration of the applicant’s penis. The exception was charge 2, which alleged that, on a date between 7 July 1984 and 6 July 1986, he took part in an act of sexual penetration with the victim, his daughter, in that he introduced his penis into the victim’s anus.

Following his conviction the applicant was sentenced as follows:

Charge Offence Maximum Sentence Cumulation

1 Gross indecency[2] 2 years 6 months Nil

2 Incest[3] 20 years 2 years 1 year

3 Incest[4] 20 years 7 years Base

8 Incest[5] 25 years 2 years 1 year

9 Incest[6] 25 years 2 years 1 year

10 Incest[7] 25 years 2 years 1 year

11 Indecent act with a child under 16[8] 10 years 6 months 3 months

12 Incest[9] 25 years 2 years 1 year

Total effective sentence 12 years and 3 months’ imprisonment

Non-parole period 9 years and 6 months

Pre-sentence declaration 49 days

Other orders
Sex offender registration order (reporting period: life).

Forensic sample orders.

[2]Crimes Act 1958 s 50(1).
[3]Ibid s 52(1).
[4]Ibid.
[5]Ibid s 44(1).
[6]Ibid.
[7]Ibid.
[8]Ibid s 47(1).
[9]Ibid s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] VSCA 117
Decision Date: 11 May 2021

CaseChat Overview and Summary

The case of Bolton v The Queen involved an application by the applicant, who had been convicted on multiple charges, for an extension of time to file an application for leave to appeal against his conviction. The applicant was convicted of six counts of incest, one count of gross indecency with a person under 16, and one count of committing an indecent act with a child under 16. The central issue before the court was whether to grant an extension of time and leave to appeal, specifically concerning one of the incest convictions, on the basis that the evidence did not establish penetration. The applicant accepted that if the conviction were set aside, a conviction for attempted incest could be entered.

The court examined the applicant’s reasons for the delay in filing the application, finding them inadequate. The court highlighted the importance of finality in criminal proceedings and assessed the likelihood of a lesser sentence being imposed for attempted incest. Given these considerations, the court concluded that the application for an extension of time should be refused. The court's reasoning focused on the need for timely applications and the potential for a lesser sentence to be imposed if the conviction were altered, without undermining the principles of justice and finality.

The court’s decision was grounded in the principles of legal finality and the procedural requirements for appealing criminal convictions. It emphasised that the applicant had not provided a sufficient explanation for the delay in filing the application, and that it was very likely that a lesser sentence would be imposed for attempted incest, if the conviction were altered. The court ultimately determined that the application for an extension of time should be refused, thereby upholding the importance of timely legal processes and the finality of criminal convictions.

The final orders of the court were to refuse the applicant’s application for an extension of time to file an application for leave to appeal against his conviction. The court's decision underscored the significance of adhering to legal timelines and the need to ensure that the finality of criminal proceedings is maintained. The court's refusal to grant the extension was based on the inadequate explanation for the delay and the likely outcome of a lesser sentence for attempted incest, reinforcing the principles of justice and legal procedure.

Orders