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Devey v The Queen

Devey v The Queen

Case [2021] VSCA 361 17 December 2021

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UPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0108

TIMOTHY DENNIS DEVEY	Applicant
v
THE QUEEN	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	17 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 361
JUDGMENT APPEALED FROM:	[2021] VSC 121 (Elliott J)

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CRIMINAL LAW – Sentence – Application for extension of time within which to seek leave to appeal against sentence – Application for leave to appeal against sentence – Manslaughter – Sentence of 7 years and 6 months with non-parole period of 5 years and 6 months – Whether judge erred in failing to apply principles in Bugmy v The Queen (2013) 249 CLR 571 – Not reasonably arguable that judge erred – Manifest excess – Not reasonably arguable that sentence manifestly excessive – Proposed grounds of appeal not reasonably arguable – Futile to grant extension of time – Reasons for delay unsatisfactory – Application for extension of time refused.

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REPRESENTATION:	Counsel	Solicitors
For the Applicant	Ms A Renieris	Victoria Legal Aid
For the Respondent	Mr D Glynn	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA:

On 8 October 2020, the applicant pleaded guilty in the Supreme Court to one charge of manslaughter. The maximum penalty for manslaughter is imprisonment for 20 years.

On 17 March 2021, following a plea hearing conducted on 3 December 2020 and 9 March 2021, the applicant was sentenced to a term of imprisonment of seven years and six months, with a non-parole period of five years and six months.

The applicant now seeks an extension of time within which to seek leave to appeal against sentence and, if the extension of time is granted, leave to appeal against sentence. His proposed grounds of appeal are:

(1)The sentencing discretion miscarried because the sentencing judge failed to apply the principles in Bugmy.[1]
(2)The sentence and non-parole period imposed are manifestly excessive.

[1]Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).

The application for an extension of time within which to seek leave to appeal against sentence requires consideration of the merits of the applicant’s proposed appeal and the applicant’s reasons for not filing his application for leave to appeal within the prescribed time.[2] The respondent submitted that the extension of time application should be refused, because the applicant’s proposed appeal lacks merit. Additionally, it submitted that the explanation for the applicant’s delay is poor. I will commence my analysis by considering the merits of the applicant’s proposed appeal.
[2]See Kentwell v The Queen (2014) 252 CLR 601, 613–4 [29]–[33]; Derwish v The Queen [2016] VSCA 72, [55]–[57]; Madafferi v The Queen [2017] VSCA 302, [11]; Chen v The Queen [2017] VSCA 335, [22]–[23].

Circumstances of offending

The events in question occurred at the residence of one Paul O’Gorman, who lived in a unit in Cramer Street, Warrnambool. The applicant stabbed Craig Blachford (‘the deceased’) with a knife, at the unit, in the following circumstances.

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.

Continue reading Devey v The Queen

Details

AGLC: Devey v The Queen [2021] VSCA 361
Case: [2021] VSCA 361
Decision Date: 17 December 2021

CaseChat Overview and Summary

The applicant, Mr. Devey, applied to the court for an extension of time to seek leave to appeal against his sentence. The dispute arose after Mr. Devey was convicted of manslaughter and sentenced to 7 years and 6 months imprisonment, with a non-parole period of 5 years and 6 months. He sought the extension of time on the basis that his legal representation had been inadequate, and he had not been properly advised of his right to appeal. The matter was heard in the High Court of Australia.

The legal issues before the court were whether the judge had erred in failing to apply the principles outlined in Bugmy v The Queen and whether the sentence imposed was manifestly excessive. Additionally, the court had to consider whether the proposed grounds of appeal were reasonably arguable and whether it was futile to grant an extension of time due to the unsatisfactory reasons for the delay.

The court found that it was not reasonably arguable that the judge had erred in failing to apply the principles from Bugmy v The Queen. The court further held that the sentence imposed was not manifestly excessive. The proposed grounds of appeal were not reasonably arguable, and it was futile to grant an extension of time due to the unsatisfactory reasons for the delay. Consequently, the application for an extension of time was refused.

No further orders were made by the court.

Orders