Evans v The Queen

[2016] VSCA 11

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 139
PAUL EVANS (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that 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 name of the applicant.

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JUDGES:	REDLICH and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	18 February 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 11
JUDGMENT APPEALED FROM:	DPP v [Evans] (Unreported, County Court of Victoria, Judge Murphy, 13 May 2011)

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CRIMINAL LAW – Sentence – Application for an extension of time to apply for leave to appeal against sentence – Delay of more than four years – Explanation for delay unsatisfactory – Merits of proposed appeal – No reasonable prospect of success of proposed appeal – Application refused.

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APPEARANCES:	Counsel	Solicitors
No appearances

REDLICH JA
BEACH JA:

Introduction

1. On 6 April 2011, following an eight-day trial in the County Court, the applicant was found guilty by a jury of seven charges of rape, two charges of attempted rape, one charge of committing an indecent act with a child under the age of 16 and one charge of common assault.  Following a plea hearing on 5 May 2011, the applicant was sentenced on 13 May 2011 as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Rape	25 years	4 years 6 months	–
3	Rape	25 years	6 years	12 months
5	Rape	25 years	6 years	12 months
7	Attempted rape	20 years	4 years	3 months
9	Rape	25 years	5 years	12 months
11	Indecent act with a child under 16	10 years	18 months	–
12	Attempted rape	20 years	3 years 6 months	3 months
14	Rape	25 years	5 years	12 months
16	Common assault	5 years	7 days	–
17	Rape	25 years	6 years 6 months	Base
19	Rape	25 years	5 years	12 months
Total Effective Sentence		12 years
Non-Parole Period		8 years 9 months
The Applicant was sentenced as a serious sexual offender on charges 5, 7, 9, 11, 12, 14, 17 and 19.

1. On 16 July 2015, the applicant filed an application on extension of time in which to file a notice of application for leave to appeal against his sentence.  The proposed grounds of appeal are as follows:

1.The individual sentences, total effective sentence and non-parole period were manifestly excessive having regard to the following considerations:

–the absence of relevant prior convictions.  The Crown allege a single prior appearance against the applicant which occurred in the Magistrates’ Court at Horsham, when the applicant was fined $150 each on counts of discharging a firearm and carrying a loaded weapon in a public place.  These took place over 30 years ago and should be given no weight;

–the applicant’s age;

–the applicant’s public humiliation;

–[the applicant’s] prior contribution to the community;  and

–the applicant’s separation from his family and children.