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.
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- AGLC
- Devey v The Queen [2021] VSCA 361
- Case
- [2021] VSCA 361
- Decision Date
CaseChat Overview and Summary
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
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Evidence
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Ratio Decidendi
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