Jason David Palankay v The Queen - [2013] HCASL 160

JASON DAVID PALANKAY
v
THE QUEEN
[2013] HCASL 160
M54/2013

The applicant seeks special leave to appeal against an order of the Court of Appeal of the Supreme Court of Victoria (Harper and Osborn JJA), refusing the applicant leave to appeal against conviction and sentence imposed by the County Court of Victoria. A differently constituted Court of Appeal (Weinberg JA) had earlier refused the applicant leave to appeal against conviction and sentence. The applicant elected to have his application for leave to appeal further heard pursuant to s 315(2) of the Criminal Procedure Act 2009 (Vic).
The applicant had pleaded guilty in the County Court to one count of using a false document and five counts of obtaining property by deception. Shortly before his sentence was to be imposed, the applicant sought to withdraw his guilty plea, claiming that he had been improperly induced to plead guilty by statements made by the trial judge. That application was refused by the Chief Judge of the County Court.
The applicant was sentenced to a total effective sentence of three years and 10 months, with a non-parole period of two years and six months. The sentencing judge indicated that had the applicant pleaded not guilty to the charges, a sentence of four years and six months, with a non-parole period of three years and six months, would have been imposed.
During the hearing of the application in the Court of Appeal, it was noted that the applicant should have been sentenced as a continuing criminal enterprise offender, pursuant to s 6H of the Sentencing Act 1991 (Vic). If the applicant's sentence was reopened, the Court of Appeal would have been obliged to sentence him as a continuing criminal enterprise offender. That circumstance, taken together with the applicant's previous offences and poor prospects of rehabilitation, meant that there was no reasonable prospect that the applicant would receive a lesser sentence on appeal.
The Court of Appeal refused the applicant leave to appeal against his conviction and sentence.
The application is brought out of time and the applicant seeks an order dispensing with the requirement to comply with the time limit in r 41.02.1 of the High Court Rules 2004.
As the applicant does not have legal representation, the application falls to be dealt with under r 41.10.
There is no reason to doubt the correctness of the decision of the Court of Appeal. An appeal to this Court would not enjoy sufficient prospects of success to warrant a grant of special leave.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
9 October 2013 S.M. Crennan

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.

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Details

Case: [2013] HCASL 160
Decision Date

CaseChat Overview and Summary

The applicant, Jason David Palankay, sought special leave to appeal against an order of the Supreme Court of Victoria's Court of Appeal, which had denied him leave to appeal his conviction and sentence imposed by the County Court of Victoria. Palankay had pleaded guilty to one count of using a false document and five counts of obtaining property by deception. Before his sentencing, he attempted to withdraw his guilty plea, alleging improper inducement by the trial judge, but this application was refused. He was sentenced to a total effective term of three years and ten months, with a non-parole period of two years and six months. The sentencing judge indicated that a longer sentence would have been imposed had he pleaded not guilty. The Court of Appeal noted an error in the original sentencing but concluded there was no reasonable prospect of a reduced sentence on appeal given Palankay's criminal history and prospects of rehabilitation.

The legal issues before the court were whether the Court of Appeal's decision was correct and whether Palankay's application for special leave to appeal was timely. The primary issue was whether there was a reasonable prospect of success if the appeal were allowed, considering the circumstances of the case and the Court of Appeal's findings. The court also needed to consider whether the application complied with the time limits for such applications and whether any exceptional circumstances warranted dispensing with these requirements. The applicant argued that the Court of Appeal had erred in its decision, and he had sufficient grounds for a successful appeal. However, the court had to weigh these arguments against the established findings and the likelihood of a successful outcome.

The High Court found no grounds to doubt the correctness of the Court of Appeal's decision. The reasoning of the Court of Appeal was sound, considering the applicant's criminal history, the nature of the offences, and the potential impact of reopening the sentencing process. The High Court determined that an appeal to the Court would not have sufficient prospects of success. Furthermore, the application was out of time, and there were no exceptional circumstances to warrant dispensing with the requirement to comply with the time limit. The court concluded that there was no basis to grant special leave to appeal. Consequently, the application was dismissed.

The High Court directed the Registrar to draw up, sign, and seal an order dismissing the application, consistent with rule 41.10.5 of the High Court Rules 2004. This decision underscores the stringent requirements for granting special leave to appeal and the importance of timely applications in the appellate process.

Orders