Jason Dirbass v The Queen
[2018] VSCA 305
•8 November 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0203
| JASON DIRBASS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | HARGRAVE and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 November 2018 |
| DATE OF JUDGMENT: | 8 November 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 305 |
| JUDGMENT APPEALED FROM: | [2017] VCC 1190 |
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CRIMINAL LAW – Application for extension of time – Leave to appeal – Sentence – Theft of motor vehicle – Whether time accumulated in error to sentence – No grounds of appeal – Application for extension of time refused – Sentencing Act s 15.
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| APPEARANCES: | Counsel | Solicitors |
For the Applicant | In person | -- |
| For the Crown | Mr B L Sonnet | Mr J Cain, Solicitor for Public Prosecutions |
HARGRAVE JA
T FORREST JA:
The applicant has filed an application for an extension of time to file and/or serve an application for leave to appeal. Judge Tinney in the County Court sentenced the applicant on 28 July 2017 to 12 months’ imprisonment for the offence of theft of a motor vehicle. His Honour declared that four months of the 12 months sentence were to be served cumulatively upon the sentence already being served, but declined to fix any non-parole period. The previous sentence was imposed on 30 June 2017 by Judge Davis. On that occasion, the applicant was sentenced to a total effective sentence of 3 years and 9 months’ imprisonment with a minimum non-parole period of 2 years and 6 months. 375 days of presentence detention were declared as taken into consideration.
Having been sentenced by Judge Tinney on 28 July 2017, the applicant had until Friday 25 August 2017 to file a notice of application for leave to appeal against his sentence, as required by s 279 of the Criminal Procedure Act 2009. His extension of time application was filed late by 13 months and 10 days. Neither the single page affidavit nor the extension of time application itself disclose reasons for the failure to file in a timely fashion. We infer from the amended applicant’s written case that he is confused about the operation of Judge Tinney’s sentence and has sought to appeal to this Court on the basis of that confusion. We shall return to this issue.
In oral argument today, the applicant explained his delay on the basis that the effect of Judge Tinney’s sentence on his existing sentence was not explained to him until 17 August this year. Assuming this to be the case, and given that the applicant was represented before Judge Tinney at the time he was sentenced, it is regrettable that his counsel did not then explain the effect of Judge Tinney’s sentence to him on that day.
Legal principles
The principles which govern extension of time applications are as follows:
(1) The prescription by the statute of a time limit for giving notice is intended to secure finality and compliance. It is intended to be complied with in the ordinary case.
(2) Extension of time is a matter for the discretion of the Court and the applicant must put material 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 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 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 requirements needs to be forthcoming.[1]
[1]R v O’Keefe [1979] VR 1, 5 (McInerney, Menhennitt and McGarvie JJ). See also R v Darby (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Gowans, Lush and Crockett JJ, 2 May 1975); R v Croft [2008] VSCA 61 [10] (Redlich and Kellam JJA and Osborn AJA).
In the specific context of an appeal against sentence, this Court summarised principles governing applications for extension of time to apply for leave to appeal against sentence as follows:
The principles, that apply to an application for an extension of time, have been stated in a number of decisions of this Court. The applicant bears the burden of persuading the Court that an extension of time should be granted in his or her favour. The Court has a wide discretion in determining whether to grant an extension of time. However, the central consideration is whether it is in the interests of justice that the application for leave to appeal be heard, notwithstanding that it has been brought outside the prescribed time. In determining that question, a number of factors are ordinarily taken into account, including the length of the delay and the reasons for it. In addition, the prospects of success of the proposed application for leave to appeal against sentence, should the extension be granted, are material. Each of those factors, and any other relevant circumstances, are taken into account in a balanced exercise of the discretion. Ordinarily, where the delay is considerable, the Court will not grant the extension, unless it is satisfied the proposed grounds are sufficiently meritorious to justify the grant of the extension notwithstanding such delay.[2]
[2]Barber v The Queen [2018] VSCA 232 [3].
The merits of the proposed application
In a very short affidavit dated 26 September 2018, the applicant deposes that on 17 August 2018 he was advised that his sentence has been altered, and that he has prepared a written case arguing against the sentence imposed by Judge Tinney. A perusal of that written case and its amended successor demonstrates the procedural history set out in paragraph 1 of these reasons. As we have observed, the applicant appeared before Judge Tinney on 28 July 2017 and was sentenced to 12 months’ imprisonment; 4 months of the sentence imposed was directed to be served cumulatively. The applicant seems to be under the impression that the 4 months to be served cumulatively is to be taken into account only as against the head sentence imposed by Judge Davis. In other words, he contended that the minimum term of 2 years and 6 months ought remain unchanged.
On 17 August 2018, the applicant was advised by staff from the Department of Corrections that the sentence he is currently serving has been calculated by the Sentence Calculation and Warrant Administration Division as a new head sentence of 4 years and 1 month’s imprisonment and a new non-parole of 2 years and 10 months. Thus, the 4 months cumulative imprisonment imposed by Judge Tinney has been added to both the head sentence and the minimum non-parole period. The applicant argues that it follows that a total of 8 months has been accumulated in error to his entire sentence; 4 months to the head sentence and another 4 months to the non-parole period fixed by Judge Davis. He contends that only one 4 month period should have been accumulated, and not both.
Relevantly, s 15 of the Sentencing Act 1991 (‘the Act’) reads as follows:
(1) If an offender has been sentenced to several terms of imprisonment in respect of any of which a non-parole period was fixed, the offender must serve—
(a) firstly, any term or terms in respect of which a non-parole period was not fixed;
(b) secondly, the non-parole period;
(c) thirdly, unless and until released on parole, the balance of the term or terms after the end of the non-parole period.
(2) If during the service of a sentence a further sentence is imposed, service of the first-mentioned sentence must, if necessary, be suspended in order that the sentences may be served in the order referred to in subsection (1).
Subsection 15(1) itself provides a complete answer to the applicant’s complaints about the effect of the sentence imposed by Judge Tinney. This is because:
(1) The applicant has been sentenced to several terms of imprisonment by Judges Davis and Tinney respectively;
(2) Judge Davis fixed a non-parole period and Judge Tinney did not, and the applicant must therefore serve his several terms of imprisonment in the following order:
(a) First, the four months of his sentence by Judge Tinney which was cumulated on the sentences imposed by Judge Davis;
(b) Secondly, the non-parole period fixed by Judge Davis; and
(c) Thirdly, the balance of the terms of imprisonment fixed by Judge Davis.
For the avoidance of doubt, s 15(2) provides that ‘if necessary’, the sentences imposed by Judge Davis must be suspended in order to ensure that the several terms of imprisonment are served in the order set out in subsection (1).
Thus, although the Sentence Calculation and Warrant Administration Division was not technically correct, it was practically so. The applicant must serve a total of 2 years and 10 months before being eligible for parole.
Conclusion
We conclude that the application for an extension of time has no merit. Neither the notice of appeal nor the amended written case disclose any actual grounds of appeal. The applicant’s contention that Corrections Victoria has made an error in calculating his aggregate term or the minimum period before which he is eligible for parole is inconsistent with s 15 of the Act. Even if such an error were to exist, the Court of Appeal is not the appropriate forum in which to have any such error corrected.
In summary, given the length of time that has elapsed between sentence and the filing of this application and the total lack of merit that attaches to the proposed application, we are of the view that the application for extension of time to file and serve an application for leave to appeal against sentence must be refused.
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