Jason David Palankay v The Queen

[2013] HCASL 160

JASON DAVID PALANKAY

v

THE QUEEN

[2013] HCASL 160

M54/2013

1. 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).

2. 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.

3. 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.

4. 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.

5. The Court of Appeal refused the applicant leave to appeal against his conviction and sentence.

6. 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.

7. As the applicant does not have legal representation, the application falls to be dealt with under r 41.10.

8. 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.

9. 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