Nona v The Queen (No 3)
[2012] ACTCA 60
•21 December 2012
DENNIS MICHAEL NONA v THE QUEEN [No 3]
[2012] ACTCA 60 (21 December 2012)
APPEAL AND NEW TRIAL – in general and right of appeal – appeal against conviction – application for stay of sentencing proceedings pending appeal hearing – fragmentation of proceedings – proximity in time of appeal hearing – application for stay referred to the bench of three judges hearing the appeal.
Court Procedures Rules 2006 (ACT)
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478
Nona v The Queen [2012] ACTCA 55
R v De Marchi [1983] 1 VR 619
R v Meyboom (2012) 256 FLR 450
R v Nona (2012) 6 ACTLR 203
R v WR [2009] ACTSC 93
EX TEMPORE JUDGMENT
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 33 – 2012
No. SCC 447 of 2009
Judge: Refshauge J
Court of Appeal of the Australian Capital Territory
Date: 21 December 2012
IN THE SUPREME COURT OF THE ) No. ACTCA 33 – 2012
) No. SCC 447 of 2009
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DENNIS MICHAEL NONA
Applicant
AND:THE QUEEN
Respondent
ORDER
Judge: Refshauge J
Date: 21 December 2012
Place: Canberra
THE COURT ORDERS THAT:
The application for a stay of the sentencing proceedings in No SCC 447 of 2009 be referred to the bench of three judges hearing the appeal on 15 February 2013.
IN THE SUPREME COURT OF THE ) No. ACTCA 33 – 2012
) No. SCC 447 of 2009
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DENNIS MICHAEL NONA
Applicant
AND:THE QUEEN
Respondent
Judges: Refshauge J
Date: 21 December 2012
Place: Canberra
REASONS FOR JUDGMENT
REFSHAUGE J:
On 19 December 2012, I made orders giving leave to the applicant, Dennis Michael Nona, to appeal and other orders relating to the conduct of that appeal. This morning, I published my reasons for those orders (see Nona v The Queen [2012] ACTCA 55).
In the Court of Appeal matter No ACTCA 33 – 2012, I was asked to stay the Supreme Court sentencing proceedings in matter No SCC 447 of 2009 until the hearing of the appeal.
THE BACKGROUND
On 8 September 2010, an indictment was filed in Supreme Court proceedings
No SCC 447 of 2009, in which the appellant, Dennis Michael Nona, was charged with two counts of sexual intercourse with a person under the age of 16 years, one count of committing an act of indecency on a person under the age of 16 years and one count of committing an act of indecency in the presence of a person under the age of 16 years. Mr Nona applied for a stay of those and other proceedings, namely, those numbered No SCC 378 of 2010.
That application came before the Supreme Court on 11 November 2011. On 23 March 2012, the Supreme Court refused to grant the stay: R v Nona (2012) 6 ACTLR 203.
The trial in matter No SCC 447 of 2009 proceeded and, on 10 August 2012, Mr Nona was acquitted of one count and convicted of all the other counts on that indictment. The Court then ordered a Pre-Sentence Report and adjourned those proceedings for sentence.
Mr Nona commenced an appeal from the conviction. That is permissible — perhaps desirable or required — under the Court Procedures Rules 2006 (ACT), as I held in
R v Meyboom(2012) 256 FLR 450 at 454; [15], 455–6; [30].
At the same time, Mr Nona sought leave to appeal from the decision of the Supreme Court refusing a stay of the proceedings. My initial reaction was to consider that, relying on cases such as Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, the stay decision was an interlocutory decision that could be heard with the appeal: see Nona v The Queen at [48]–[50].
Accordingly, and without opposition by the respondent, I gave leave to Mr Nona to amend the notice of appeal in these proceedings. Mr Nona amended the notice of appeal in accordance with that leave on 6 September 2012. Since then, however, in preparing my reasons for that decision, it appeared to me that there could be an argument that the circumstances following the decision prevented Mr Nona from raising it on the appeal, Nona v The Queen at [55]–[60]. Accordingly, I have also granted leave to appeal, but directed that the appeal for which leave has been granted be heard with this appeal.
THE STAY APPLICATION
Mr Nona has, however, sought a stay of the proceedings numbered No SCC 447 of 2009 pending the hearing of the appeal, so that sentence not be imposed until after the hearing of the appeal.
Fragmentation of the proceedings
It is, of course, undesirable that criminal proceedings be fragmented. I addressed that issue at some length in R v WR [2009] ACTSC 93, where it was clear that such an approach was one of long standing. Nevertheless, it applies before and during the actual hearing of the proceedings and in this case proceedings have already been, to some extent, fragmented by the adjournment after the jury’s verdict was accepted by the Court for the purpose of sentencing and a Pre-Sentence Report ordered for that purpose.
On the other hand, the Full Court of the Victorian Supreme Court has, in
R v De Marchi[1983] 1 VR 619, held that it is an unusual circumstance that an appeal against conviction be heard before sentence has been imposed. While that does not strictly apply here, I would not have been inclined to order that the sentence proceedings be stayed pending the appeal had the matter been dealt with at the time the application was made.
Proximity in time to the appeal hearing
Regrettably, however, for various reasons that I do not need to detail, submissions on that matter were not able to be made until 19 December 2012. The appeal is now listed to be heard on 15 February 2013. In those circumstances, it is so unlikely that sentence could be completed before the appeal, at least so that any appeal from sentence could be the subject of the appeal at the same time, that I will simply refer the application for the stay of the sentence proceedings to the bench of three judges hearing the appeal on 15 February 2013.
Referral of the application
Accordingly, I order that the application for a stay of the sentencing proceedings be referred to the bench of three judges hearing the appeal on 15 February 2013.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 5 February 2013
Counsel for the applicant: Mr F J Purnell SC
Solicitor for the applicant: Porters Lawyers
Counsel for the respondent: Ms M Jones
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 19 December 2012
Date of judgment: 21 December 2013
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