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Donohue v The Queen

Donohue v The Queen

Case [2019] VSCA 160 2 July 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0078

NEVILLE DONOHUE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 July 2019
DATE OF JUDGMENT:	2 July 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 160
JUDGMENT APPEALED FROM:	[2018] VCC 1578 (Judge Carmody)

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CRIMINAL LAW – Sentence – Application for extension of time to apply for leave to appeal against sentence – Applicant found guilty of attempting to pervert course of justice (3 charges), perjury (4 charges), making a false document (12 charges) – Total effective sentence of 4 years and 5 months, with non-parole period of 2 years and 9 months – Whether judge erred in assessment of medical evidence – Whether sentence manifestly excessive – Application for leave to appeal having no prospects of success – Futile to grant extension of time – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Mr P Bourke	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA

BEACH JA:

On 10 September 2018, following a trial in the County Court, the applicant was convicted of 12 charges of making a false document, three charges of attempting to pervert the course of justice and four charges of perjury. On 25 September 2018, the applicant was sentenced as follows:

Charge on IndictmentF13803116.1

Offence

Maximum

Sentence

Cumulation

1.                  Make false document 10 years 9 months Nil

2.                  Make false document 10 years 9 months Nil

3.                  Make false document 10 years 9 months Nil

4.                  Make false document 10 years 9 months Nil

5.                  Make false document 10 years 9 months Nil

6.                  Attempt to pervert the course of justice 25 years 18 months 12 months

7.                  Make false document 10 years 9 months Nil

8.                  Make false document 10 years 9 months Nil

9.                  Make false document 10 years 9 months Nil

10.                Make false document 10 years 9 months Nil

11.                Make false document 10 years 9 months Nil

12.                Attempt to pervert the course of justice 25 years 18 months 4 months

13.                Make false document 10 years 9 months Nil

14.                Make false document 10 years 9 months Nil

15.                Attempt to pervert the course of justice 25 years 18 months 4 months

16.                Perjury 15 years 2 years BASE

17.                Perjury 15 years 2 years 3 months

18.                Perjury 15 years 2 years 3 months

19.                Perjury 15 years 2 years 3 months

Total Effective Sentence: 4 years 5 months

Non-Parole Period: 2 years 9 months

(1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18: 15 days

Charge on IndictmentF13803116.1	Offence	Maximum	Sentence	Cumulation
1.	Make false document	10 years	9 months	Nil
2.	Make false document	10 years	9 months	Nil
3.	Make false document	10 years	9 months	Nil
4.	Make false document	10 years	9 months	Nil
5.	Make false document	10 years	9 months	Nil
6.	Attempt to pervert the course of justice	25 years	18 months	12 months
7.	Make false document	10 years	9 months	Nil
8.	Make false document	10 years	9 months	Nil
9.	Make false document	10 years	9 months	Nil
10.	Make false document	10 years	9 months	Nil
11.	Make false document	10 years	9 months	Nil
12.	Attempt to pervert the course of justice	25 years	18 months	4 months
13.	Make false document	10 years	9 months	Nil
14.	Make false document	10 years	9 months	Nil
15.	Attempt to pervert the course of justice	25 years	18 months	4 months
16.	Perjury	15 years	2 years	BASE
17.	Perjury	15 years	2 years	3 months
18.	Perjury	15 years	2 years	3 months
19.	Perjury	15 years	2 years	3 months
Total Effective Sentence:	4 years 5 months
Non-Parole Period:	2 years 9 months
(1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18:	15 days

On 9 December 2018, the applicant filed an application for an extension of time within which to seek leave to appeal against his sentence. The grounds of the extension of time application are that the applicant did not realise, until he was advised on 27 November 2018, that an original application faxed to the Court on 16 October was not received by…

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 Donohue v The Queen

Details

AGLC: Donohue v The Queen [2019] VSCA 160
Case: [2019] VSCA 160
Decision Date: 2 July 2019

CaseChat Overview and Summary

The respondent, Donohue, applied for an extension of time to apply for leave to appeal against his sentence. Donohue was found guilty of multiple charges, including attempting to pervert the course of justice, perjury, and making false documents. He was sentenced to a total effective term of 4 years and 5 months imprisonment, with a non-parole period of 2 years and 9 months. The application for an extension of time was predicated on the basis that there was a prospect of success in an appeal against the sentence. The primary ground for appeal was that the primary judge had erred in assessing medical evidence and that the sentence was manifestly excessive.

The court considered the grounds for appeal and examined the evidence presented. The court held that the appeal had no prospects of success as the medical evidence did not warrant a different assessment, and the sentence was not manifestly excessive. The court noted that the primary judge had considered the medical evidence and had appropriately weighed it in the context of the overall case. The court found that the sentence was within the range of sentences that could be imposed for the offences committed.

The court also considered whether it was futile to grant an extension of time. The court held that it was futile to grant an extension of time as the application for leave to appeal had no prospects of success. The court noted that the applicant had not provided any new evidence or arguments that would warrant a different outcome. The application for an extension of time was refused.

The court did not make any orders regarding costs or any other matters. The decision was limited to the refusal of the application for an extension of time.

Orders