Manuel Defrutos v The Queen - [2016] VSCA 241

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2006 0416

MANUEL DEFRUTOS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and KYROU JJA and ELLIOTT AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	7 October 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 241
JUDGMENT APPEALED FROM:	DPP v Defrutos [2006] VSC 474 (Teague J)

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CRIMINAL LAW – Application to reinstate application for leave to appeal against sentence – Applicant convicted of attempted murder in 2006 and sentenced to 11 years’ imprisonment with non-parole period of 8 years – Application for leave to appeal against sentence dismissed by Acting Registrar of Criminal Appeals in 2007 due to failure to file a full statement of grounds of appeal by due date – Nine year delay in seeking reinstatement of application – Proposed grounds directed at decision of Adult Parole Board to refuse parole rather than decision of sentencing judge – Application for reinstatement refused.

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APPEARANCES:	Counsel	Solicitors
No appearances

WEINBERG JA

KYROU JA
ELLIOTT AJA:

Introduction and summary

On 30 November 2006, the applicant was convicted of attempted murder and on 11 December 2006 he was sentenced to 11 years’ imprisonment with a non-parole period of 8 years. During 2007, his application for leave to appeal against sentence was dismissed by the Acting Registrar of Criminal Appeals on two occasions because he failed to file a full statement of the grounds of appeal by the due date.

On 13 July 2016, following a refusal by the Adult Parole Board (‘Board’) to grant him parole, the applicant applied to reinstate his application for leave to appeal against sentence. The applicant has represented himself. By agreement of the parties, the reinstatement application has been determined on the papers.

The grounds relied upon by the applicant in support of his reinstatement application are directed to the decision of the Board rather than the decision of the sentencing judge. For the reasons that follow, the application will be refused.

Factual and procedural background

The applicant and the victim, Anthony McCallum, played together in the same football team in the 1980s. They were reacquainted in early 2000 while drinking at the Flying Duck Hotel in Prahran. McCallum introduced the applicant to his partner, Caroline Mildenhall. The applicant knew where McCallum lived and that he sometimes walked through the park next to the hotel on his way home at night. While McCallum was overseas in late 2000, the applicant had a brief affair with Mildenhall. McCallum found out about the affair after he returned from overseas and he told the applicant that he did not want any further association with him. In the years that followed, there were incidents in which the applicant displayed his resentment towards McCallum and his continuing interest in Mildenhall.

On the night of 23 July 2004, the applicant armed himself with a handgun and waited for McCallum in the park. As McCallum walked through the park, the applicant approached him and shot him in the chest,…

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: [2016] VSCA 241
Decision Date: 7 October 2016

CaseChat Overview and Summary

The applicant, Manuel Defrutos, sought reinstatement of an application for leave to appeal against his sentence, which had been dismissed by the Acting Registrar of Criminal Appeals in 2007. Defrutos was convicted of attempted murder in 2006 and sentenced to 11 years in prison with a non-parole period of 8 years. The dismissal of his initial application for leave to appeal was due to the failure to file a full statement of grounds of appeal by the specified due date. Defrutos’ application to reinstate the appeal was filed nine years after the dismissal, and the proposed grounds of appeal were directed at the decision of the Adult Parole Board to refuse parole, rather than the original decision of the sentencing judge.

The court considered the issue of whether the application for reinstatement should be allowed, particularly in light of the significant delay in making the application and the nature of the proposed grounds of appeal. The court was required to determine whether the delay was justified and whether the proposed grounds of appeal were appropriate in the context of an application for leave to appeal against sentence.

The court found that the delay of nine years in seeking reinstatement of the application was not justified. The court also noted that the proposed grounds of appeal were not directed at the sentencing decision but rather at the parole decision. The court held that the proposed grounds of appeal were not relevant to the application for leave to appeal against sentence, and therefore, the application for reinstatement should be refused. The court emphasised the importance of timely and relevant applications in the criminal appeals process and the need for adherence to procedural requirements.

The court refused the application for reinstatement of the appeal against sentence. The applicant was ordered to pay costs.

Orders