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.

---

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)

---

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.

---

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.

2.In relation to counts 11 and 16, the sentences and absence of orders for cumulation did not reflect that these counts were criminally less significant, when compared with the other offences and this offends the principle of proportionality.

3.The learned trial judge gave weight to facts not in evidence ie the victim impact statement that lacked medical evidence to support it.

1. On 30 July 2015, the Deputy Registrar (Legal) refused the applicant’s application for an extension of time.  On 17 August 2015, the applicant filed a notice of election to renew his application.  Thus the matter now comes before this Court.

The principles to be applied

1. The time limit for seeking leave to appeal against the applicant’s sentence was 28 days after the day on which the applicant was sentenced.[2]  The principles which govern an application for extension of time in which to apply for leave to appeal were distilled by Gowans J in the judgment of the Court of Criminal Appeal in R v John Edward Darby,[3] as follows:

   [2]Criminal Procedure Act 2009 s 279(1).

   [3]Unreported, Supreme Court of Victoria, 2 May 1975;  see also R v O’Keefe (1979) VR 1, 5; Bowling v R [2013] VSCA 87 [14]-[18] (Redlich JA); Soteriou v R [2013] VSCA 328 [55] (Ashley JA); Kumar v R [2014] VSCA 102 [8] (Nettle and Redlich JJA and Almond AJA); Sanderson v R [2015] VSCA 315 [4]–[5] (Whelan, Santamaria and Kaye JJA).

(1)the prescription by the statute of the time limit for giving notice is intended to secure finality and compliance is intended to be required in the ordinary case;

(2)extension of the time is a matter for the discretion of the Court, and the applicant must put material and considerations before the Court which will persuade it to exercise its discretion in favour of an extension;

(3)rigid restrictions cannot be imposed on the exercise of discretion but in general the Court will require special and substantial reasons for extending the time;

(4)the longer the time which elapses since the expiration of the statutory period and the more the changes that have taken place in the meantime, the more exceptional will the circumstances put before the Court have to be;

(5)it is the practice of the Court not to grant any considerable extension of time unless it is satisfied that there are such merits in the proposed appeal that it would probably succeed;

(6)a reasonably satisfactory account of the failure to comply with the statutory requirement needs to be forthcoming.

1. Further, as was said by Redlich JA in Bowling v The Queen:[4]

   [4][2013] VSCA 87 (‘Bowling’).

The time limits set out in the rules of Court are not to be treated as some empty formality.  The rules are intended to ensure finality of the litigation and compliance with time limits will be required in the ordinary case.  The applicant must generally place material before the Court which will persuade the Court that there are special and substantial reasons to extend the time.[5] 

[5]See R v O'Keefe (1979) VR 1, 4; R v Darby (Unreported, Supreme Court of Victoria, 2 May 1975).

The longer the time which has elapsed since the expiration of the prescribed period, the more special the circumstances will have to be.  Where there is a considerable lapse of time, the practice of the Court is not to grant the extension unless the Court is satisfied that there are such merits in the proposed appeal that it would probably succeed.  These considerations have been repeated by this Court on numerous occasions.[6] 

[6]R v Davis (2003) 6 VR 538; DPP v Hayden [2006] VSCA 152; R v Croft [2008] VSCA 61.

An applicant who is dilatory or who has acted so as to indicate that they do not intend to appeal has no entitlement to an expectation that the discretion will be exercised in their favour.  Even where the applicant demonstrates that there are substantial reasons for delay, if there has been a significant delay, the grant of an extension of time will ordinarily depend upon the applicant establishing that the decision is so attended by doubt as to render it likely that the appeal will succeed.[7] 

[7]R v Davis (2003) 6 VR 538, 539 [6] (Winneke ACJ); R v Croft [2008] VSCA 61, [21] (Kellam JA).

Even where the lapse of time is short, the applicant must show that the appeal has sufficient prospects of success.[8]  Thus, though a ground belatedly raised may have some merit, its merit may sometimes be overwhelmed by other considerations which tell against a grant of an extension of time.[9] 

[8]DPP v Hayden [2006] VSCA 152, [13] (Maxwell P and Vincent JA).

[9]Keshtiar v The Queen [2011] VSCA 122, [29] (Ashley JA).

…

Even where an applicant is out of time through no fault of his or her own, the applicant will be required to demonstrate to a higher standard that the appeal has prospects of success.  That burden is a direct result of non-compliance with time limits by the applicant’s legal representatives. [10]

[10]Bowling [16]-[22] (citations in original). See also Soo v The Queen [2015] VSCA 84, [8] (Osborn and Kaye JJA).

Applicant’s reasons for delay

1. In his application for an extension of time in which to apply for leave to appeal against his sentence, the applicant provides the following reasons for failing to file a notice within the prescribed time:

i.I was convicted on [6] April 2011 of the above charges and was subsequently sentenced on [13] May 2011 before His Honour Judge Murphy of the County Court of Victoria.

ii.I consulted a solicitor Mr Mike Wardell of Ballarat soon afterwards in approximately November 2011 who subsequently lodged the appeal documents incorrectly and they were returned to me.  The document required correcting which took approximately three (3) months.

iii.I then engaged the firm of Doogue & O’Brien to represent my interests and I lodged an appeal against my conviction, together with an Out of Time Application on the 8^th of March 2012.

iv.Both applications were dismissed by their Honours of the Appellate Court on the 15^th of June 2012.

v.At the time of lodging my appeal against conviction it was my wish to lodge an appeal against sentence at the same time.  However, I was advised by Doogue & O’Brien that this could be done at a later stage as they were confident that my appeal against conviction would be upheld in whole or in part.  As my appeal against sentence (scil, conviction) was not successful, this further delayed my ability to lodge an appeal against sentence.

vi.I have exhausted all available funds.

vii.I have no assets.

viii.I do not qualify for legal aid as my partner is employed.

ix.I have been unsuccessful in my attempts to seek a lawyer to act pro-bono or amicus curae.

x.I am representing myself and now seek leave to appeal against sentence.  The foregoing matters are the particulars of why this application is lodged out of time.

1. In his affidavit in support of his application for an extension of time, the applicant deposes to having been incarcerated since 13 May 2011;  to having had no funds to pursue an application for leave to appeal against his sentence since that time;  to having made an application for legal aid that was denied;  to having been advised by his lawyers that they cannot assist him in his present matter;  and to having to rely on the advice of friends and family to submit an application that has taken him ‘some time to research, study and obtain the appropriate advice in order to submit a written case’. 

1. The delay in this case is more than four years.  This delay is substantial.  On its face, the explanation for the delay is unsatisfactory.  In such circumstances it is incumbent upon the applicant to demonstrate the likelihood of real prospects of success before an extension of time will be granted.  That said, as full submissions in support of each ground have been filed and addressed by both parties, we will consider the merits of each proposed ground on this application.

Circumstances of the offending

1. The applicant’s offending occurred against a single complainant, the daughter of the applicant’s then de facto partner.  At the time of the offending, the complainant was aged between 11 and 15 years.  The applicant was aged between 39 and 43 years over the period of his offending.  The judge described the circumstances of the applicant’s offending as follows:

The complainant gave evidence that after you moved into the family home she found you making smart remarks to her, calling her a slut or a bitch.  She raised those remarks with her mother.  Her evidence was that when you found out that she had done so, the events giving rise to Counts 1 and 3 occurred.

The complainant who was aged 11 at the time, was in her bedroom, and you came into the bedroom and had a go at her for telling her mother.  You then proceeded to tell her you could do what you wanted, and grabbed her by the wrists, pushed her against the wall, pulled down her pants, and proceeded to digitally penetrate her vagina.  These events give rise to Count 1, a count of rape.

At the time, you then pushed her, face down onto the bed, and she stated that she was kicking and screaming, trying to get away.  You then, in her words, ‘rubbed your penis all over her bum’ and then proceeded to place your penis in her vagina.  These events constitute Count 3, a count of rape.  After you had finished, you told her to put her clothes back on and ‘fuck off’, and you then called her a slut.  Her feelings at the time were that she was hurt, disgusted, angry and shocked.

The events giving rise to Counts 5 and of attempted rape occurred closer to the end of 1999.  They occurred in another room of the house, the recreation room.  You came up to the complainant and pushed her onto the couch on her back.  You then proceeded to pull down her pants, and placed your penis into her vagina.  The complainant screamed.  These events give rise to a conviction on Count 5 of rape.

You then attempted to anally penetrate her with your penis.  She said she was crying and screaming at the time.  She said she was trying to get away.  She stated that at the time it hurt, and you called her a slut, and you were threatening her that you would make her disappear if she said anything.  She said she felt dirty, and had to have a bath as there was blood everywhere.  The jury must be taken to have accepted the complainant’s evidence that you did not succeed in anally penetrating her.  The jury returned a verdict of attempted rape, a statutory alternative to Count 7 on the presentment.

The events giving rise to Counts 9 and 11 occurred near the start of the 2001 calendar year.  The complainant had spent 2000 living with her father in … .  She gave evidence that she did not want to live with you and also that she was fighting with her mother.  She had subsequently returned to her mother’s home … .  She was in Year 8 at school.  Her mother had taken out your children, who were visiting.  You had apparently been next door.  The complainant was in the front room of the house, which was also used as a computer room, when you appeared unexpectedly.  You proceeded to make a derogatory comment to her, saying ‘you knew she would come back because she was a slut’,  and you then put your hand down the front of her pants and placed your fingers inside her vagina.  At the time she was yelling or screaming at you to ‘fuck off and leave me alone’.  These events give rise to Count 9, a count of rape.

After you pulled your hand out, you put your fingers in her mouth and told her that she had better not say anything or tell anyone.  These events give rise to the conviction on Count 11, indecent act with or in the presence of a child under the age of 16.

The events giving rise to the convictions on Counts 12 and 14 were alleged to have occurred the following year and were as follows.  The complainant was in Year 9 at the time, and said she was aged 13 or 14.  She helped out in the tree-lopping business you were conducting with her mother.  On occasions she would wash vehicles.  She was doing that, and you were present in the business yard.  You had a short conversation with her when she was next to the work utility, and you held her arms and pushed her into the ute cabin.  She tried to get out the passenger door, and you grabbed her foot and pulled her back towards you.  You were halfway in and out of the ute.  She was wearing jeans, and was across the bucket seats and centre console.  You then pulled her jeans and underwear down to around her knees and tried to put your fingers into her anus.   This constitutes Count 12, attempted rape.

You then proceeded to put your fingers into her vagina.  At the time, she was across the seats in the cabin of the utility, and you were said to be over the top of her.  This constitutes Count 14, rape.  At the time she stated that she felt trapped.  She further said she was scared of you.  The event ended when your phone rang.  The complainant stated that she got bruising around the inside of her thighs up towards her groin in this incident.

The events giving rise to the convictions on Counts 16 and 17 occurred around Easter in 2002 when the complainant was in Year 9.  Your children were visiting, and the complainant’s mother had apparently taken the children out.  The complainant was in her bedroom.  She heard you locking all the doors, and you came in and then grabbed her by the wrist and pushed her around the room.  These events constitute the conviction on Count 16 of common assault.

You pushed her, and she ended up on the bed.  You then took her pants off and proceeded to penetrate her vagina with your penis.  That is Count 17, rape.  You were slapping her chest, and she was trying to turn away from you, and you grabbed her face and kept pulling it back.  You then removed your penis from her and proceeded to ejaculate over her stomach.  You then called her a slut, ‘just like her mother’.  She stated that at the time she felt gross and dirty.

The events giving rise to the conviction on Count 19 occurred in the complainant’s bedroom after you had driven the complainant to see her mother, who was hospitalised in Ararat, which was on 16 or 17 November 2003.  She was in bed, and you proceeded to come in and drag her out of bed onto the floor.  You then took her shorts off and proceeded to digitally penetrate her vagina.  You were positioned over her and on your knees.  She said that she was crying and trying to get away, and felt ‘devastated’.  You were telling her that there was no-one there to save her.  After this you just got up and walked out.  These events constitute the conviction on Count 19, rape.[11]

[11]DPP v Evans (Unreported, County Court of Victoria, Judge Murphy, 13 May 2011) (‘Reasons’) [5]–[16].

Reasons for sentence

1. After describing the circumstances of the applicant’s offending, the trial judge turned to the issue of the seriousness of the offending.  The judge said:

Your counsel did not seek to dispute the seriousness of the offending here.  The Crown pointed to the fact that there were six separate occasions upon which offending occurred, and you were in a position of trust in that you were living in a de facto relationship with the complainant’s mother, that the complainant was of a youngish age between 11 and 15 when the offending occurred, and the offending was accompanied by a level of violence and threats.  You were aged between 39 and 43 over the period of the offending, which itself spanned 4 years.  All those matters I find are made out and are significant aggravating factors.

Within the offending itself your conduct was clearly opportunistic and exploited the age and vulnerability of the complainant.  Your offending commenced almost in retaliation for the conduct of the complainant in complaining to her mother about the language you were using against her.  In the first incident she was resisting you.  The rapes that constitute Counts 1 and 3 must have been particularly shocking for a girl not yet 12.  The same applies to the second event that year constituted by the conviction on Counts 5 and the conviction on the statutory alternative of Count 7, namely attempted rape.  She stated she was crying and screaming and ‘it just hurt’.  The events giving rise to Counts 9 and 11 were also demeaning and exploitative.  I regard the offending involved in Counts 16 and 17 as the most serious.  There was some premeditation in the locking of the house doors.  There was physical violence of the pushing followed by the penile rape, and then ejaculating on the complainant’s stomach.  All this accompanied by a derogatory comment about the complainant and her mother.[12]

[12]Ibid [18]–[19].

1. Next, the judge dealt with the complainant’s victim impact statement.  Specifically, so far as this application is concerned, the judge said:

The complainant also stated that she had suffered from an eating disorder, and she attributed the offending to the loss of her employment.  She also claimed that she suffered financial losses as a result of giving evidence at the trial.  In addition she referred to a number of gynaecological conditions that caused pain and required medical investigation.  Defence counsel took issue with some of the consequences that the complainant stated arose from the offending.  In particular, he said there was no medical evidence that the eating disorder was caused as a sequelae of the offending and that it was common ground in the trial that certain gynaecological conditions were unrelated to the offending.  Similarly, as far as wage losses caused by giving evidence in the trial and committal, they are matters that could be the subject of a claim to the State.

Defence counsel did not dispute that she suffered an emotional disorder as a consequence of the offending and that she would have suffered serious emotional problems as an inevitable consequence of this offending.

The criticisms of defence counsel of the Victim Impact Statement in relation to the gynaecological conditions are not really in dispute.  However, I do not accept that the eating disorder complained of is unrelated to the offending.  It is a reasonable inference that it is.  I do not accept the criticisms that the psychological sequelae of your conduct was not a contributing factor to her loss of employment. The complainant has as a result of the offending undergone a serious psychological assault upon her, resulting in the need for psychological counselling.  She was at a significant developmental stage when the offending occurred, and it occurred over a period, and it is not surprising that it has had the impacts referred to in her statement.

Overall, it is clear from the Victim Impact Statement that your offending has caused a significant psychological impact on the complainant.  She has asserted that she has continuing problems with relationships as well as suffering from stress, depression and anxiety.  I have taken into account, subject to the reservations that I have referred to, the Victim Impact Statement and give it weight in sentencing you.[13]

[13]Ibid [23]–[26].

1. As to prior convictions, the judge said:

The Crown alleged a single prior appearance against you that occurred at the Magistrates’ Court at Horsham on 12 January 1983 when you were fined $150 each on counts of discharging a firearm and carrying a loaded weapon in a public place.  On a count of assault with a weapon, the matter was adjourned on a $500 Good Behaviour Bond for 12 months. The former convictions apparently relate to the discharge of a rifle during a party.

I give minimal weight to the convictions which were nearly 30 years ago.[14]

[14]Ibid [27]–[28].

1. The judge then dealt with the applicant’s background, matters in mitigation and prospects of rehabilitation.[15]  Finally, the judge dealt with the purposes of sentencing.  In the course of this discussion, the judge said:

Although you have no relevant prior convictions, specific deterrence remains a relevant sentencing consideration in circumstances where you continue to deny the offending.

In sentencing you, denunciation is an important consideration.  Your conduct, whether considered separately on the six separate occasions, or as a course of conduct against the complainant, was absolutely outrageous and wicked, and I condemn it in the strongest terms.

Whereas here in sentencing you on counts as a serious sexual offender, the Legislature applies a presumption of cumulation, there is a tension between this direction, considerations of totality, and a need to avoid a crushing sentence.  Your counsel submitted that cumulation orders ought be minimised, and that the Court ought avoid a crushing sentence.[16]

[15]Ibid [29]–[35].

[16]Ibid [40]–[42].

1. The judge accepted that he should ensure that the overall sentence he imposed was not disproportionate or crushing.[17]

   [17]Ibid [48].

Merits of the proposed appeal

1. In his three proposed grounds of appeal, the applicant makes three complaints:  first, a complaint of manifest excess (proposed ground 1);  secondly, a complaint about the sentences on charges 11 and 16 (proposed ground 2);  and thirdly, a complaint that there was no medical evidence to support the claim in the complainant’s victim impact statement that she suffered from an eating disorder as a result of the applicant’s offending (proposed ground 3).  It is convenient to deal with the applicant’s complaints in reverse order.

1. There is nothing in the applicant’s complaint about the judge’s treatment of the complainant’s victim impact statement (proposed ground 3).  It was open to the judge to accept, without medical evidence, the complainant’s statement that she suffered from an eating disorder as a result of the applicant’s offending.  Not every medical condition or problem said to be caused by an offender’s criminal acts requires proof by medical evidence.  In any event, there was no dispute on the plea that the complainant had suffered serious emotional problems as ‘an inevitable consequence of [the applicant’s] offending’.[18]

   [18]Ibid [24].

1. We turn now to the applicant’s proposed ground 2.  The applicant’s written case with respect to this ground is as follows:

Counts 11 and 16 were criminally less significant than all other counts on the presentment.  In respect of all other counts the learned trial judge made orders for cumulation, yet did not do so on these counts.  His orders for cumulation therefore were inconsistent with his findings as to the relative gravity of the other acts and were disproportionate to the degree of criminality of those acts. 

The doctrine of proportionality as enunciated by the High Court of Australia, requires that the gravity of a crime be considered in light of its objective circumstances.  In considering what a proportionate sentence should be, the seriousness of the offence is to be assessed without taking into account factors personal to the offender.  Furthermore, harm is obviously an objective circumstance.  The learned trial judge by not making an order for cumulation on these counts did not give sufficient weight to these principles.

1. The applicant’s argument on proposed ground 2 only has to be stated to be rejected.  We cannot see any rational basis for any complaint by the applicant concerning the judge’s failure to make any order for cumulation in respect of the sentences his Honour imposed on charges 11 and 16.

1. Finally, we turn to the applicant’s complaint about manifest excess (proposed ground 1).  As part of this complaint, the applicant submits that no weight should have been given to his very old prior convictions for unrelated matters.  In the course of his reasons for sentence, the judge said that he gave minimal weight to these convictions ‘which were nearly 30 years ago’.[19]  A little later on in his reasons for sentence, the judge stated that the applicant had ‘no relevant prior convictions’.[20]  In our view, a fair reading of the judge’s reasons for sentence was that no real weight, or weight of any significance, was given by the judge to the applicant’s prior convictions.

   [19]Ibid [28].

   [20]Ibid [40].

1. As to the other matters in mitigation referred to in proposed ground 1, we see no reason to doubt that all of the relevant background circumstances of the applicant that were put to the judge were taken into account by him when he sentenced the applicant.  The question that arises under proposed ground 1 is whether the sentences and orders made by the judge were wholly outside the permissible ranges.  As has been said many times before, manifest excess is a difficult ground to make out.  The test for manifest excess is whether the sentence was wholly outside the range of sentencing options available to the judge, not whether some other sentence could have been imposed.[21]

   [21]R v Abbott (2007) 170 A Crim R 306.

1. The applicant’s offending was very serious offending.  The maximum penalty for rape is 25 years.  The offending involved the aggravating features correctly identified by the trial judge, and to which we have already referred.  In our view, the applicant has no prospects of establishing any complaint of manifest excess in respect of the sentences and orders made by the judge.  Contrary to the applicant’s submissions, we think that the individual sentences, the total effective sentence and the non-parole period imposed by the judge were entirely appropriate. 

Conclusion

1. The delay in this case (more than four years) is substantial.  The applicant’s explanation for the delay is, at best, thin.  The applicant’s prospects of success on any appeal against sentence are very low, to the point of being fanciful.  It follows, that the application for an extension of time within which to file a notice of application for leave to appeal against sentence must be refused.

- - -