Derek WILLIAMS v Shane Owen
[2013] ACTSC 175
•9 August 2013
DEREK WILLIAMS v SHANE OWEN & ORS
[2013] ACTSC 175 (9 August 2013)
APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – appeal from Magistrates Court – leave to appeal out of time – material advanced in support of application was material available to be put before Magistrate – no material to justify granting of leave – low prospects of success on appeal – application for leave to appeal out of time refused
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 54 of 2013
Judge: Burns J
Supreme Court of the ACT
Date: 9 August 2013
IN THE SUPREME COURT OF THE )
) No. SCA 54 of 2013
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
DEREK WILLIAMS
Applicantv
SHANE OWEN
MARITA MULLER
CHRISTOPHER BIZIAK
EVAN DAVIESRespondents
ORDER
Judge: Burns J
Date: 9 August 2013
Place: Canberra
THE COURT ORDERS THAT:
Leave to appeal out of time be refused.
This is an application to appeal out of time from a series of sentences imposed in the Magistrates Court. The applicant sought to put on further material in support of the application for leave.
Matters now sought to be adduced in terms of the care of the children and his family position, were all matters that were available to be put before the Magistrate, and I presume information about those matters was put before the Magistrate.
Further material in relation to the applicant’s mother’s health and assistance provided to her by the applicant was all material which was available to be put before the Magistrate and from what the applicant’s counsel says probably was.
The applicant had lawyers representing him who could have put that information before the Magistrates Court at the significant sentence proceedings and one imagines that they took instructions and did so. There was no evidence to the contrary.
The application for leave to appeal out of time is based upon material that could have been put before the Magistrate and probably was, and also is made in circumstances where it must be conceded that the Magistrate dealt with him in a particularly lenient fashion.
On my assessment of the matter, even if that material had not been put before the Magistrates Court and the applicant came to be resentenced with respect to these charges based upon there being fresh evidence, even if one accepted all of that, no sentence less than that imposed in the Magistrates Court would have been appropriate.
CONCLUSION
In my opinion, the present application should be refused. The material which the applicant seeks to put before the Court in support of the application for leave to appeal out of time is essentially material which was available to be put before the Magistrates Court at the time of sentencing.
To the extent that the material now relied upon may be an update of the material that was before the Magistrates Court, in my opinion, that material would not justify any sentence less than that which was imposed on the applicant in that court.
The applicant has a lengthy criminal history, and when one looks at the facts of the current offences, in my opinion he was dealt with in a very lenient fashion by the Magistrates Court. Indeed, that proposition was not cavilled with by counsel who now appears for him.
It appears that there is no material which would justify the granting of leave, and in addition to which the prospects of success on appeal are particularly bleak. In those circumstances the application for leave will be refused.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 27 August 2013
Counsel for the Applicant: Ms T Warwick
Solicitor for the Applicant: Kim Bolas Criminal Lawyers
Counsel for the Respondent: Ms A Knibbs
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of Hearing: 9 August 2013
Date of Judgment: 9 August 2013
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