R v McMahon
[2001] VSCA 241
•11 December 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 102 of 2001
| THE QUEEN |
| v. |
| PAUL MICHAEL McMAHON |
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APPLICATION FOR EXTENSION OF TIME
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JUDGES: | WINNEKE, P., BUCHANAN and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 11 December 2001 | |
DATE OF JUDGMENT: | 11 December 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 241 | |
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C.J. Ryan | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr R.J. Bourke | Galbally Rolfe |
WINNEKE, P. (delivering the judgment of the Court):
This is an application for extension of time within which to appeal against sentence. The applicant was presented in the County Court at Geelong in February of this year on 11 counts of sexually assaulting a 38-year-old woman (whom we shall describe as "the complainant"). All the offences were alleged to have occurred in the complainant's home in the early hours of 6 April 1999. Counts 2, 6, 8 and 11 alleged indecent assaults and counts 3, 7, 9, 10 and 12 alleged vaginal rapes. Count 4 alleged an anal rape by penetration with fingers and count 5 alleged an oral rape. The applicant was convicted after trial of all the vaginal rapes alleged and the count of anal rape. He was also convicted on the first of the indecent assaults counts but was acquitted of the other three. He was also acquitted of the count of oral rape. After a plea in mitigation the judge, on 23 February 2001, sentenced the applicant to terms of six years' imprisonment on each of the rape convictions and three months' imprisonment on the count of indecent assault. His Honour ordered that one year of the sentence on count 4 (the anal rape) be cumulated upon the sentence of six years imposed on count 7 (one of the vaginal rapes). The total effective sentence was therefore one of seven years, and his Honour ordered the applicant to serve a non-parole period of four years.
The time fixed for filing a notice of application for leave to appeal against sentence expired on 9 March 2001. By notice filed on 7 May 2001 the applicant sought leave to have the time extended within which he might appeal against his sentence. That application has been opposed by the Director of Public Prosecutions and continues to be opposed. In accordance with the provisions of sub-s.(1) of s.582A of the Crimes Act, the application came before the Registrar. He refused the application, and the applicant, in accordance with the rights given to him by sub-s.(2) of the section, has had the matter referred to this Court.
The principles upon which the Court will grant an application such as this are not in doubt. They were conveniently summarised by the Court of Criminal Appeal in the case of O'Keefe[1], where the Court said:
[1][1979] V.R. 1 at 5.
"The principles which govern an application for extension of time for appealing are conveniently stated by Gowans, J. in delivering the judgment of the Full Court in R. v. Darby (unreported, 2 May 1975), as follows:
'1.The prescription by statute of a time limit for giving notice is intended to secure finality and compliance is intended to be required in the ordinary case.
2.Extension of the time is a matter for the discretion of the court and the applicant must put material and considerations before the court which will persuade it to exercise its discretion in favour of 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 the 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 that 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.' "
The material before this Court would indicate that the applicant had always declared an interest in appealing against the sentences imposed upon him. It is said that he obtained little assistance from his legal advisers who were acting for him during the trial between the time of his conviction and sentence and the time limited by the statute for appeal, although it is said, that on or about the final day of the period fixed by the Act, he was advised by his solicitors that he should not appeal. Since then, it is said, he has consulted other solicitors and has taken steps to obtain the file. It is said that his new solicitors had difficulty in obtaining the file from the previous legal advisers, and, in addition, we note that the Easter period during the relevant year intervened. Nevertheless it was not until 30 April 2001 that instructions were formally given to his current solicitors, that is, some six to seven weeks after the time to appeal given by the statute had expired.
If the applicant had any substantial grounds for appealing the sentences imposed we would not have been inclined to refuse the application simply because of the delay which has occurred, even though that delay is not inconsiderable. Mr Bourke, who has appeared on this application, has contended that there is a substantial ground of appeal and it is to be found, so it is submitted, in the judge's sentencing remarks, where his Honour concluded that he was not prepared to regard the applicant's offending as out of character. In particular his Honour said:
"I have taken into account your age, the absence of relevant prior convictions, the evidence of good character save for one aspect to which I will shortly refer, matters personal to you and, most importantly, your prospects of rehabilitation. I am satisfied by the evidence that your prospects of rehabilitation are excellent and that you are unlikely to re-offend. For the reasons I expressed during the course of the plea, I do not accept that these offences were 'out of character' having regard to your sexual history vis-à-vis [the complainant], particularly when you were liquor-affected. Mr Marron urged me to make no adverse finding on the question of remorse having regard to the defence of consent and in particular your loss of memory for the events of that night. I reject that submission. In my opinion your alleged loss of memory is a fabrication. I simply do not believe you were as intoxicated as has been suggested, certainly not for the period of time during which these offences were committed. In my opinion you invented the amnesia story and once having made that decision you were stuck with it. Accordingly I find that you have exhibited no remorse, the concomitant being that the victim was required to give evidence and was cross-examined."
During the course of the plea there had been debate between his Honour and counsel about events which had occurred during the relationship between the applicant and the complainant in 1997, that is, some two years before the offences in question. Although count 1 on the presentment alleged an indecent assault in 1997, the count had been severed from the presentment. Nevertheless the prosecutor and counsel appearing for the applicant had agreed that some evidence would be led in limited form to establish the pre-existing relationship. The defence of the applicant was put on the basis that the events which occurred on 6 April 1999 were consensual - a defence which the jury obviously rejected. In making the remarks to which I have already referred, his Honour was intimating that he was not prepared to regard the offending of April 1999 as out of character, having regard to the fact that in 1997 the applicant had gone to the complainant's home, intoxicated, in the early hours of the morning, where he had woken her up: events which had preceded the events which had been the subject of the severed count 1.
We have considered very carefully the matters advanced to us by Mr Bourke in support of this application. Mr Bourke has submitted that there were very powerful mitigating circumstances which had to be taken into account on his client's behalf by the judge. In particular he referred to the fact that the applicant had no prior convictions, was a relatively young man, that the offences were in fact out of character, that the complainant had suffered no real physical injury and, of course, the good prospects of rehabilitation. Having carefully considered all the matters that have been raised by Mr Bourke, we can find in them no "special and substantial reasons" for extending the time for appeal, which, in the circumstances described, we regard as not inconsiderable. It seems to us, however, that there are no reasonable prospects of this appeal succeeding. The jury convicted the applicant on six repeated, humiliating and violent rapes upon a woman in a fragile state in her own home. His Honour found many matters in favour of the applicant for sentencing purposes, particularly his excellent prospects of rehabilitation. Whether or not he was entitled to take into account the matters upon which Mr Bourke has relied, we are of the view that they played very little part in the sentences imposed, and that the sentences imposed for rapes of this kind were not only well within the range of sentences available to his Honour, but were such that, in our view, it would be most unlikely for this Court to be persuaded that sentences other than those imposed by his Honour ought to have been passed.
Accordingly, we reject the application.
The formal order of the Court is that the application for extension of time is refused.
We grant a certificate under the Appeal Costs Act to the applicant.
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