R v McMahon - [2001] VSCA 241

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 102 of 2001

THE QUEEN

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…

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.

Continue reading R v McMahon

Details

AGLC: R v McMahon [2001] VSCA 241
Case: [2001] VSCA 241
Decision Date: 11 December 2001

CaseChat Overview and Summary

The case of R v McMahon involved an application for an extension of time within which to appeal against sentence. The applicant, Paul Michael McMahon, was convicted in the County Court at Geelong on multiple counts of sexual assault against a 38-year-old woman. The crimes were alleged to have occurred in the complainant's home in April 1999. McMahon was convicted of multiple counts of vaginal rape, anal rape, and indecent assault but was acquitted of oral rape and three other indecent assault counts. The County Court judge sentenced McMahon to a total effective sentence of seven years imprisonment, with a non-parole period of four years. The statutory time limit for filing a notice of appeal expired on 9 March 2001, but McMahon's application for an extension of time was not filed until 7 May 2001. The Registrar refused the application, and McMahon appealed to the Supreme Court of Victoria.

The primary legal issue before the Court was whether there were "special and substantial reasons" to justify the extension of time for McMahon to appeal his sentence. The Court had to consider whether the delay in filing the notice of appeal was due to exceptional circumstances and whether there were reasonable prospects of the appeal succeeding.

The Court examined the reasons for the delay, noting that McMahon had initially indicated an interest in appealing but did not take any steps to do so until well after the statutory time limit had expired. The Court also considered the arguments put forward by McMahon's counsel regarding potential grounds for appeal, specifically the sentencing judge's finding that McMahon's offending was not out of character. The Court found that, while the delay in filing the notice of appeal was not inconsiderable, there were no special and substantial reasons to justify the extension of time. Furthermore, the Court was of the view that the sentences imposed were within the range of sentences available to the sentencing judge, and that there were no reasonable prospects of the appeal succeeding.

As a result, the Court rejected the application for an extension of time. The formal order of the Court was that the application for extension of time is refused, and a certificate under the Appeal Costs Act was granted to the applicant.

Orders