Machhour v The Queen
[2014] VSCA 225
•17 September 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0103
S APCR 2014 0143
| ABDULKARIM MACHHOUR |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES: | WEINBERG and HANSEN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 September 2014 |
| DATE OF JUDGMENT: | 17 September 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 225 |
| JUDGMENT APPEALED FROM: | DPP v Machhour (Unreported, County Court of Victoria, Judge Wood, 11 July 2012) |
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CRIMINAL LAW – Conviction – Arson – Election against refusal by Judicial Registrar of application for extension of time within which to file application for leave to appeal against conviction – Delay of almost two years in instituting appeal – Proposed appeal without merit – Application refused – No point of principle.
CRIMINAL LAW – Sentence – Election against refusal by Judicial Registrar of application for extension of time within which to file application for leave to appeal against sentence – Whether sentence manifestly excessive – Proposed appeal without merit – Application refused – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J McLoughlin | Victoria Legal Aid |
| For the Crown | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA
HANSEN JA:
After a trial lasting some 11 days, the applicant was convicted, in the County Court at Melbourne, of one charge of arson. On 11 July 2012, he was sentenced to a term of four years’ imprisonment. A non-parole period of three years was fixed.
It was not until almost two years later, on 29 May 2014, that the applicant filed a notice of application for extension of time within which to file and serve a notice of appeal against conviction. On 3 July 2014, he filed a notice of application for extension of time within which to file and serve a notice of appeal against sentence. He relied, in support of each of those applications, upon an affidavit affirmed by his nephew, Andrew Haddad, dated 6 June 2014, an affidavit affirmed by a solicitor employed by Victoria Legal Aid, dated 1 July 2014, and an affidavit which he himself swore on 28 May 2014.
In essence, the position appears to be that the applicant has consistently instructed his legal advisers, of whom there have been a number, to appeal against both conviction and sentence. However, there have been problems with securing legal aid, and with having preparatory and other work done in a timely manner.
Although each proposed application for leave to appeal is significantly out of time, the Crown has indicated that it does not oppose the extension of time sought. It does, however, oppose the grant of leave on the basis that the grounds upon which the applicant seeks to rely are without merit. Notwithstanding the Crown’s willingness to forgo its rights in relation to the time within which any appeal should be brought, we are not prepared to grant the extension of time sought. That is because it cannot be said, in conformity with the relevant authorities,[1] that either appeal is ‘likely’ to succeed.
[1]R v Darby (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Gowans, Lush and Crockett JJA, 2 May 1975); Efandis v The Queen [2014] VSCA 42; Haidari v The Queen [2014] VSCA 91.
The grounds upon which the applicant proposes to rely in support of his appeal against conviction are as follows:
1. The learned trial judge erred in allowing evidence to be led of a conversation alleged to have occurred on 15 July 2007 concerning the fire between Rhonda Haddad and her step-mother Ayda Haddad.
2. The learned trial judge erred in failing to direct the jury that if they rejected the alibi evidence of Ayda Haddad that did not necessarily mean that the applicant was guilty, only that the applicant’s whereabouts were not accounted for during the whole of the Saturday 15 July 2007.
3. The learned trial judge erred in allowing evidence to be led of, and Vivian Mianji to be cross-examined about, her movements in the early hours of 15 July 2007.
The grounds upon which he seeks leave to appeal against sentence are as follows:
1. The head sentence and non-parole period are manifestly excessive in the light of:
(a) current sentencing practices;
(b) the applicant’s previous good character and good prospects for rehabilitation;
(c) the finding that the weight to be given general and specific deterrence should be moderated because of the applicant’s long-standing depression;
(d) the finding that the applicant would find imprisonment more than ordinarily burdensome; and
(e) the substantial delay between the offence and sentencing.
2. The learned Judge erred in failing to take into account in sentencing the delay between the commission of the offence and sentencing.
Background facts
The applicant and his former wife, Wafa Machhour, were married in 1980. He was from Syria, and she from Lebanon. There was one daughter of the marriage. Together they purchased a property at 6 Lawry Place, Meadow Heights, which became the matrimonial home. They separated in February 2005, and were divorced in March 2006. Thereafter, proceedings continued in the Federal Magistrates’ Court in relation to the former matrimonial home, and other related property issues. At the time of separation, the applicant continued to occupy the property, and his wife and daughter went to live elsewhere.
Ultimately the Federal Magistrates’ Court made orders requiring the applicant to insure the house at his expense. His former wife had concerns as to whether he had done so and, in January 2006, made separate arrangements, at her own expense, to ensure that the property was in fact covered. The house was listed for sale in June 2006, but did not sell. Wafa became concerned that the applicant was deliberately running the house down in order to make certain that it did not sell.
On one occasion, when Wafa visited the house in order to remove some furniture she found that the applicant had changed the locks. He continued in exclusive possession thereafter.
The applicant and Wafa were married, but also related by marriage. The applicant’s sister, Ayda Haddad, was married to Michael Haddad, Wafa’s uncle. Ayda and Michael Haddad had separated in 2001. They had two daughters, Julianna and Vivian, and a son, Andrew. After Ayda and Michael Haddad separated, Wafa’s relationship with Ayda became strained. However, Wafa remained on good terms with her cousin, Rhonda, who was Michael’s daughter by his first marriage.
On 20 April 2007, the Federal Magistrates’ Court conducted a hearing in relation to the division of the matrimonial property. Four days later, the applicant telephoned the RACV insurance company and cancelled the insurance policy that his former wife had taken out over the property. On 6 July 2007, the Federal Magistrates’ Court made an order in relation to the property. The applicant was given two options. He could pay Wafa the sum of $216,363.88 (being the assessed value of her share in the property). Alternatively, he could vacate the property and allow her vacant possession. The order required him to act on one option or the other within 30 days.
After learning of the orders made, Ayda visited the applicant on 9 July 2007, which happened to be a Monday. She found her brother in a distressed state. She went back to his house on the following day, and indeed slept there that evening. On the next day, Wednesday 11 July, the applicant arranged for removalists to collect furniture from the house. According to Ayda, the premises were undamaged on that day. In particular, there were no holes in any of the walls. The applicant slept at his sister’s home on the following three evenings, namely 11, 12 and 13 July, before departing for Syria on the evening of Saturday 14 July 2007.
Ayda gave evidence at the trial that the applicant was continuously in her company throughout that entire three day period, with only two minor exceptions. On Thursday 12 July 2007, he had gone to his house to collect some things and then onto a friend’s place for dinner, returning to his sister’s house that evening. On Friday 13 July 2007, he had been gone for around 45 minutes to one hour between 10:00am and 11:00am while he went to Chadstone Shopping Centre in order to purchase a suitcase. Ayda gave evidence that it would take about one and a half hours to travel from her home to the applicant’s house on public transport. Accordingly, if her evidence were to be accepted, he could not have gone back to his house for any purpose whatsoever on that morning. The significance of that fact will become apparent shortly.
Ayda gave evidence that the applicant was in her company throughout the whole of Saturday 14 July 2007 before departing for Tullamarine in order to catch a flight that departed for Syria at 6:30pm that evening. He was driven to Tullamarine by his niece, Vivian. Ayda accompanied them to the airport.
We interpolate to say that Vivian visited the applicant at his home on Thursday 12 July 2007, at her mother’s suggestion, in order to transport some of his personal belongings from Meadow Heights to Ayda’s house. Vivian told police, shortly after the fire occurred, that the applicant had been so angry on the Thursday that he had punched a hole in the wall. When she tried to calm him down, he told her that he would smash the kitchen and bathroom and the walls and the carpet so that no one could live there, and no one would buy the house.
However, in her evidence at both committal and trial, she denied having seen him punch a hole in the wall. She claimed that she had seen such a hole near the entry to the house, which the applicant said had been caused by the removalists.
After leaving the applicant at the airport, Vivian drove Ayda home, where she had left her son to be babysat, and then drove back to her home in Brighton.
At 3:48am on Sunday 15 July 2007, the local fire station received a report of a fire at the applicant’s home. Fire fighters forced entry through the front door which was locked. The fire was eventually extinguished. Several hours later, on the Sunday morning, a forensic chemist, George Xydias, attended at the applicant’s home. He observed that the rooms had been ransacked and vandalised. There was damage to the walls, doors and other fittings throughout the premises. There were a number of holes in the walls, consistent with having been created by an axe or a hammer. Flammable liquid had been spread through several rooms and along the central passageway.
Mr Xydias found two burnt toasters in two rooms of the house. One was in the wardrobe of the master bedroom. It had been connected to an extension lead running across the floor, and plugged into a power point above the skirting boards. Another toaster was located in the kitchen pantry. It was plugged into an extension cord leading from the master bedroom in what was described as ‘piggy back style’.
Between the power point and the extension leads, Mr Xydias found a 24-hour Arlec timer. He concluded that the time had been set to deliver power to the toasters at about 3:30am on 15 July 2007. Accordingly, the timer must have been set within the immediately preceding 24-hour period. Both toasters were badly damaged. They were described as ‘basic toasters’. In addition, Mr Xydias found trails of petrol in the carpet. His evidence was that the petrol must have been poured within 24-hours or so of his attendance at 10:15am on Sunday 15 July 2007. Otherwise it would have evaporated.
A fireman who attended said that the fire had spread mainly in the kitchen, in the pantry area. He observed a five litre can of petrol, with its cap off, in the main bedroom. On the top wardrobe shelf he found an oil can, and oil had also been deposited on the top shelf of the second and third bedrooms. Mr Xydias observed that near the first toaster there were various oily and heavily sooted papers, as well as a severely melted black container labelled ‘Castrol GTX2’. There was also a partly burned metal container labelled ‘Victa Mower Fuel’.
When, ultimately, the applicant returned to Australia from overseas and was interviewed by police, he told them that there had been no flammable materials in the house. He said that his lawnmower and mower fuel had been taken from the house before he left for overseas.
When Vivian was first interviewed by police, she gave an account that was extremely damaging to the applicant. She said that on the Monday preceding his departure, he had telephoned her, and behaved in an hysterical manner. As previously indicated, she told police that on the Thursday she saw the applicant punch a hole in the wall. She said that on the Friday afternoon, her mother had told her that the applicant was not at her home, but was ‘still doing things at his house’. After learning that the house had been damaged, she recalled statements made by the applicant to his sister, over a year earlier, that if he lost the property dispute, he would burn the house to the ground. Vivian told police that she did not take the applicant seriously at the time, but added that she believed that her mother had heard him make that threat.
By the time of the committal, Vivian had resiled entirely from these statements. She then sought to exculpate the applicant in every way that she could.
There was one feature of the trial that was somewhat unusual, and that has given rise to ground 3 of the proposed appeal against conviction. It emerged, during the course of the trial, that in the early hours of 15 July 2007, Vivian and her husband travelled from their home in Brighton to exit the Tullamarine Freeway in the vicinity of Bell Street, and then returned back onto the Freeway about 50 minutes later, en route home. During that 50 minute gap, a telephone call was made on Vivian’s husband’s mobile phone, at 3:45am, to Ayda’s landline. Another call was made at 5:00am from Ayda’s landline to Vivian’s mobile phone. The Crown alleged that Vivian travelled to 6 Lawry Place, at that unusual hour of the morning, in order to watch the fire and report back to her mother. The evidence concerning Vivian’s travel movements, and the telephone calls made to and from her phone, was of course entirely inconsistent with her previous accounts of her movements.
The trial judge concluded, in his sentencing remarks, that Vivian presented as a very poor and unreliable witness. Counsel for the applicant, at trial, invited the jury to disregard everything that she had said. The Crown agreed, save that it submitted that her initial account to the police had been truthful.
The Crown was prevailed upon by the defence to call Ayda as a Crown witness. That was so notwithstanding that she gave alibi evidence which, if accepted, provided the applicant with a complete defence. The trial judge, not surprisingly, permitted the Crown to cross-examine Ayda, which the prosecutor did to good effect.
When Ayda was first interviewed by police, she claimed to have received death threats from a person whom she believed to be Wafa’s lover. She told police that these threats were made to a mobile number, 0411 874 594. That number was registered to a Rin Haydar at a particular address in the Dandenong area that appears to have been fictitious. That number differed from Ayda’s mobile number.
During her evidence, Ayda denied any knowledge of the Rin Haydar phone. The Crown contended that that phone belonged to Ayda, and that she and Rin Haydar were one and the same. It used that evidence to undermine Ayda’s credibility, given that telephone records revealed that the particular phone had been used repeatedly to telephone Ayda’s two daughters, Julianna and Vivian, her step-daughter, Rhonda, and her son and the applicant in the period between 10 July 2007 and 17 July 2007. Indeed, the Haydar mobile phone had been used to telephone the applicant on four occasions on Friday 13 July 2007, between 2:00pm and 6:34pm. The significance of that evidence was obvious. Ayda claimed that throughout that period she and the applicant were continuously together. The jury would have wondered why, if that were the case, they would have been telephoning each other.
Importantly, there was a call to the applicant on the Haydar phone at 10:28am on Saturday 14 July 2007. The Crown case was that at that precise time the applicant was at his house, laying the groundwork for its destruction the following morning.
Rhonda gave evidence for the Crown at the trial. She said that after the fire Ayda had telephoned her and instructed her to ring Wafa’s daughter and tell her that ‘if she wants to know why her dad did this, I’ll explain to her, if Wafa wants to catch him, let her catch him’. The Crown case was that this comment by Ayda referred to the fire, and was inconsistent with her alibi evidence. That was because even if Ayda knew nothing directly about the cause of the fire, her belief that it was lit by the applicant, as embodied in this statement, could only mean that the alibi itself was false.
The applicant returned to Australia some 14 months after the fire. He was interviewed by police in November 2008. He said he knew nothing about the cause of the fire, and said that he loved the house. He denied having cancelled the insurance. That was a demonstrable lie, since the insurance company had records of his request to it to do so. He claimed that it had been his intention to appeal the Federal Magistrates’ Court decision, and that he had believed that he would succeed in that appeal.
It is perhaps noteworthy that the jury retired for a period of only two hours following the judge’s charge. His Honour described the case against the applicant as ‘overwhelming’. He concluded that both Vivian and Ayda had given false evidence and referred that matter to the Director of Public Prosecutions for further consideration.
The proposed conviction appeal
It seems from the affidavit material filed on behalf of the applicant that one of the problems which he had to confront in having this application filed was that Senior Counsel, who was briefed to advise as to the prospects for a successful appeal, had concluded that those prospects were bleak. Having read the passages in the trial transcript that encompass the proposed grounds, we can well understand how Senior Counsel arrived at that opinion.
As regards ground 1, it is true that the statement attributed to Ayda by Rhonda would, if simply recounted to the jury, have read like an admission on the part of the applicant. Of course, it was not tendered for that purpose. The Crown was entitled to attack Ayda’s credit by any legitimate means available to it. If Rhonda’s account were accepted, Ayda’s evidence had to be untrue.
The trial judge gave the jury a powerful, and with respect, unimpeachable direction as to the limited purpose for which Rhonda’s evidence could be used. His Honour said, of Rhonda’s evidence, in his charge to the jury:
You might think that conversation impacts upon your assessment of Ayda as a witness. Is she being truthful? Can you be confident she is trying to tell you the truth, or is she deliberately trying to mislead you?
She has told you that the accused was in her presence at his house on the Tuesday before the fire and that she slept at his house that night with him. That the following day, the Wednesday, furniture was moved and that her brother, the accused, stayed on. That on the Wednesday evening her brother stayed at her place in South Oakleigh. That on the Thursday she said her brother came to her house after dinner.
She said he had given some mechanical equipment to a friend of his and that he had dinner at his friend’s place. That on the Friday morning for about 45 minutes to one hour her brother, the accused, was at Chadstone. She said on the Saturday her brother did not leave the house, that she packed his clothes.
The prosecution say the conversation, ‘If his daughter wants to know why her father did this’, she meant lit the fire. This, if you find that that is what was said by Ayda to Rhonda, that evidence inconsistent with alibi evidence that she has given to you [sic]. Therefore, if you so find, you could reject Ayda as a truthful witness. If you find beyond reasonable doubt that her evidence of alibi is false it follows the accused does not have an alibi.
I emphasise this to you: the law places the obligation on the prosecution to prove the alibi is false, and the prosecution must establish that beyond reasonable doubt. You will remember the directions of law I gave to you yesterday about circumstantial evidence and that if there are two alternatives that are equally consistent, the prosecution have not excluded the circumstance that the accused is not guilty.
So to reject the alibi and reject what Ayda has told you, you need be satisfied beyond reasonable doubt that her evidence is false about that issue, the movements of the accused man from the Tuesday through to the Saturday. And indeed the learned prosecutor put to you yesterday that in large measure the prosecution case rests upon establishing to your satisfaction that Rin Hadar is Ayda Haddad.
And you will recall that Ms Manova tendered various phone records emanating from the Rin Hadar number to relatives of the accused, principally Ayda’s brother and her children.
Let me make this plain. You cannot use the conversation that Ayda had with Rhonda as evidence of the fact that the accused was responsible for the fire. At its highest Ayda is expressing her belief. Her belief is irrelevant to your determination. Your duty is to determine on all of the evidence whether you are satisfied beyond reasonable doubt that the accused lit the fire. Ayda is a witness, she is not a juror. Her belief is therefore irrelevant.
I repeat, Ayda’s conversation with Rhonda is not to be used by you to reason that the accused lit the fire. It is only relevant to your assessment of Ayda’s evidence of the alibi. If you are satisfied beyond reasonable doubt the evidence is false, then there is no alibi for the accused to rely upon.[2]
[2]Transcript of Proceedings, DPP v Machhour (Unreported, County Court of Victoria, Judge Wood, 11 July 2012), 647–9.
There was no exception by defence counsel to this direction to the jury. They were told in the clearest possible terms that if they found that Ayda had said to Rhonda what Rhonda had claimed, they could use that evidence for the limited purpose of impeaching Ayda’s credit. They could not use it for any other purpose. It was not to be used as evidence that the applicant had in fact lit the fire. Counsel for the applicant submitted to this Court that the admission of that evidence ‘essentially released a genie from the bottle’.
Sometimes the distinction between an item of evidence going solely to the credit of a witness, and one that has a separate and distinct purpose, can be blurred. However, in this particular case, his Honour’s direction was clear and emphatic. In our opinion, there was no risk that the jury might have misunderstood what they were being told.
Ayda’s evidence was pivotal to this trial. Although there was some dispute about who was going to call her, the Crown was perfectly entitled to expose her, if it could, as a liar. The Crown was entitled to rely upon Rhonda’s evidence in order to do so. The trial judge weighed the probative value of that evidence against its possible prejudicial effects, and concluded that the evidence should be admitted. His Honour did not err in refusing to exclude the evidence under s 137 of the Evidence Act 2008. Ground 1 is therefore devoid of merit.
If anything, ground 2 has even less to commend it than does ground 1. No direction of the kind which the applicant now claims to have been essential was ever sought at trial. Moreover, his Honour made it clear, and repeatedly so, that the Crown had to disprove the alibi beyond reasonable doubt. He added that the effect of doing so would simply mean that the applicant’s whereabouts at the relevant time was unexplained. There is no basis upon which to assume that the jury could have converted that direction into something far more damaging, from the applicant’s point of view, namely, a direction that should the alibi fail, that of itself was evidence of the applicant’s guilt.
It was not necessary, in our view, that his Honour go further and tell the jury that they should not speculate that Ayda had lied at the instigation of the applicant. That would only have highlighted the matter, probably to the applicant’s detriment.
Ground 3 is equally devoid of merit. The evidence concerning Vivian, and her movements in the early hours of 15 July 2007, as well as her telephone contact with Ayda at that time, was utterly devastating so far as Vivian’s credibility was concerned. The defence recognised this. Counsel sought to turn Vivian’s demonstrable lies to the applicant’s advantage by inviting the jury to reject her evidence in its entirety. Plainly, however, the jury were entitled to accept Vivian’s initial account to the police as true, thereby inculpating the applicant, and reject her subsequent attempts to exculpate him.
There is one additional matter to note. Counsel for the applicant submitted that there was a disturbing feature associated with the approach taken by the Crown to the evidence of Vivian and Ayda. Indeed, he came close, on several occasions, to suggesting that the prosecutor had engaged in impropriety by seeking to invoke s 38 of the Evidence Act 2008 impermissibly in order to place inadmissible evidence before the jury. However, counsel retreated from that submission during the course of oral argument while, at the same time, maintaining that the Crown’s application to cross-examine both Ayda and her daughter under s 38 went beyond the permissible limits of that section.
It is sufficient to say that we reject that submission.
Because the proposed grounds are without merit, we would refuse the application for an extension of time within which to file a notice of appeal against conviction.
The proposed sentence appeal
The offence of arson carries a maximum term of 15 years’ imprisonment. A sentence of four years’ imprisonment for a carefully planned and vengeful act of arson upon the property of a former wife (to whom a court had ordered the property be transferred) does not strike us as in any way manifestly excessive.
Setting fire to a private house, albeit one that is unoccupied, must always be regarded as a serious offence. It is impossible to know whether the fire will burn out of control and spread to an adjoining property. An act of arson of that kind will always pose a risk to the lives of others. That includes those who are charged with the task of attending to, and putting out, fires of this kind.
When the applicant embarked upon this enterprise, he was undoubtedly depressed and angry. He almost certainly regarded the orders made against him by the Federal Magistrates’ Court as unjust.
The trial judge, in his sentencing remarks, accepted that Verdins[3] principles were applicable in sentencing the applicant. His Honour said:
I do accept that your depression at the time of your offending contributed to it, which depression has continued, up to this date, the date of sentence, some five years later … [T]here is a nexus between your mental state at the time of your offending in your commission of this offence. Thus general and specific deterrence must be moderated.[4]
[3]R v Verdins (2007) 16 VR 269 (‘Verdins’).
[4]DPP v Machhour (Unreported, County Court of Victoria, Judge Wood, 11 July 2012), [57].
After noting that the applicant’s offending was ‘more culpable’ than that of the offenders in a number of authorities cited by the Crown in support of its submission as to the appropriate range for offending of this kind, the judge continued:
Because of your impending incarceration, you will be further burdened by the lack of day to day contact and enjoyment with your daughter and your current wife and I have moderated the sentence accordingly.[5]
[5]Ibid [60].
The trial judge’s assessment of the applicant’s mental state was based on a report prepared by a clinical psychologist, Bernard Healey. Mr Healey described the applicant as having experienced anxiety and depression for a number of years following the breakdown of his first marriage. He was referred to a psychiatrist both before and after his extended trip to Syria and was prescribed anti-depressant medication, which he was still taking at the time of Mr Healey’s assessment.
Mr Healey concluded:
Personality testing was indicative of depression (for which he is prescribed medication), anxiety (focussing on general physical malaise), significant social introversion/withdrawal and a mild paranoid trend (linked to persecutory ideas, particularly the discrimination he has experienced from his wife and what he regards as her misleading information to the Court).
Counsel for the applicant submitted that despite his Honour’s recognition that his client would find prison particularly burdensome, and that general and specific deterrence should be moderated by reason of the applicant’s depressive illness and its relevance to the commission of the offence, that finding failed to be reflected in the sentence imposed. The applicant contended that in those circumstances a non-parole period of three years, that is, 75 per cent of the head sentence, could not be justified.
While we have no doubt that the applicant would find imprisonment more burdensome by virtue of the recent death of his second wife as well as his separation from his daughter, we struggle to find the necessary causal link between the applicant’s mental state in 2007 and his vengeful act of arson. However, the trial judge did find that such a link existed and sentenced him on that basis. The applicant is entitled to the benefit, before this Court, of that arguably benevolent finding.
Notwithstanding the relevance of Verdins, we do not consider it reasonably arguable that this sentence was manifestly excessive. The authorities make it clear that the test for manifest excess is a stringent one, and that this is a ground that is difficult to make good. The applicant would have to demonstrate that the sentence was ‘wholly outside the range’ of sentences reasonably available.[6]
[6]Director of Public Prosecutions v Karazisis (2010) 31 VR 634.
A head sentence of four years for a carefully planned and utterly brazen offence of this kind is, in our opinion, within range. The applicant’s moral culpability was significant, and the objective gravity of the offence extremely serious. Although a non-parole period of three years might be thought to be towards the ‘upper end’ of the scale, we do not think it falls ‘wholly outside the range’ reasonably available.
In our opinion, this submission cannot be maintained.
The applicant’s complaint about the effect of delay as a mitigating factor, may be thought to have some force. However, it loses some of its potency when one bears in mind that he fled Australia on 14 July 2007, no doubt as part of his overall plan. As previously indicated, he was away for some 14 months.
The applicant relied upon R v Merrett[7] in support of his submission that the trial judge was obliged to give substantial mitigating weight to the delay of more than three and a half years between police first interviewing him in November 2008 and the delivery of sentence in July 2012.
[7](2007) 14 VR 392.
This Court has made clear on a number of occasions that ‘delay by itself can be a powerful mitigating factor, raising as it does considerations of rehabilitation and fairness’.[8] However, a delay such as that which occurred here, though certainly regrettable, was not on a scale sufficient to suggest that the sentencing judge, by imposing the sentence that he did, failed to accord it proper weight.
[8]Director of Public Prosecutions v WRJ [2009] VSCA 174; CNK v The Queen (2011) 32 VR 641.
For these reasons, we would also refuse the application for an extension of time within which to file and serve a notice of appeal against sentence.
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