R v Oughton
[2004] VSCA 94
•20 May 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 46 of 2004
| THE QUEEN |
| v. |
| RAYMOND LEWIS OUGHTON |
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APPLICATION FOR EXTENSION OF TIME
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JUDGES: | WARREN, C.J., CALLAWAY and VINCENT, JJ.A. |
WHERE HELD: | MELBOURNE |
DATE OF APPLICATION: | 20 May 2004 |
DATE OF ORDER: | 20 May 2004 |
medium neutral citation | [2004] VSCA 94 |
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Criminal law – Application for extension of time to give notice of application for leave to appeal against conviction following plea of guilty – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A. Triandos | Solicitor to Commonwealth Director of Public Prosecutions |
| For the Applicant | In person |
WARREN, C.J.:
The applicant seeks an extension of time for leave to appeal against conviction. The applicant, Raymond Lewis Oughton, pleaded guilty and was convicted in the County Court on 27 November 2003 on five counts of imposition, four counts of defrauding the Commonwealth and two counts of dishonestly causing a loss to a Commonwealth entity.
The events that were the subject of the charges occurred over a 22-year period between 25 September 1979 and 27 August 2001, during which period the applicant obtained pension and benefits totalling over $270,000. He was arrested on 25 September 2001 and after a series of preliminary and pre-trial hearings, including changes of plea, the applicant was sentenced on 27 November 2003 to a total effective sentence of 30 months' imprisonment provided that after serving 10 months of the total effective sentence he was ordered to be released on a recognisance in the sum of $1,000 without surety to be of good behaviour for a period of five years. A reparation order was also made.
The appeal application history is that the applicant filed an application for leave to appeal against sentence, within time, on 2 December 2003. Determination of the application for leave to appeal against sentence is pending. On 18 March 2004, some three-and-a-half months after the requisite period, the applicant lodged an application for extension of time within which to lodge a notice of appeal against conviction which was accompanied by a notice of application for leave to appeal against conviction.
The reasons stated by the applicant for the extension of time are based upon his age, being 83 years, as a result of which he says he has difficulty in remembering things and for that reason he did not appeal against the conviction because he believed he had done so. He set out in a handwritten document a description of the difficulties from which he says he suffers due to his age. He also asserts that he pleaded guilty to the charges because he was confused and compelled to change his plea to one of guilty. He further alleges he has discovered fresh evidence after the trial, although there was some suggestion this morning that the fresh evidence was available to him before the sentence by the sentencing judge below. The nature of the fresh evidence has not been fully described. However, it is to be observed that in the proposed notice of application for leave to appeal against conviction the applicant asserts that there is an issue of mistaken identity. I observe that this matter to a large extent was before the sentencing judge below as a result of matters raised by the son of the applicant. Essentially, while the assertion is made of fresh evidence, it is not elaborated upon or substantiated.
The history of the pre-sentence preliminary hearings in the Magistrates' Court and the County Court is set out in some detail in the affidavit of Antoinette Mary Triandos sworn 31 March 2004 filed on behalf of the respondent.
The applicant initially made application to the Registrar for an extension of time[1]. The application was refused. Hence the present application by election.
[1]See Order 2.08 of Chapter VI of the Rules.
The principles that govern an application for extension of time for appeal against conviction are succinctly set out in the authorities[2].
[2]See R. v. O'Keefe [1979] VR 1, 5; also, R. v. Coffey (2003) 6 VR 543, [6].
In this matter the applicant pleaded guilty to the subject counts below. A court will only entertain an appeal against conviction if it appears that the nature of the charge was not appreciated or the individual did not intend to admit he was guilty of the charge or, upon the facts as admitted the individual could not, in law, have been convicted of the offence charged. While these factors are by no means exhaustive, there is a duty to intervene if there has been a miscarriage of justice[3]. Having considered the matters put before the Court by the applicant, I cannot be satisfied that any of those requirements have been made out.
[3]Ibid.
There is an additional factor, namely, it is well recognised that there is a strong public interest factor operating to limit appeals following a deliberate plea of guilty[4].
[4]Ibid.
I cannot be satisfied that there are any circumstances before the Court that would lead to any questioning of the plea of guilty at this point.
There was an additional matter put before the Court this morning by the applicant, and that was the matter of his health. This condition existed at the time of his sentence even if the applicant’s assertions are accepted as submitted by him to the Court this morning. In any event, there is no medical evidence before the Court and, despite pressing by the Court, the applicant was unable to satisfy me that the medical condition he adverted to affected his failure to lodge the appropriate application within time.
In all the circumstances of this matter, I would dismiss the application.
CALLAWAY, J.A.:
I agree.
VINCENT, J.A.:
I agree.
WARREN, C.J.:
The order of the Court is that the application is refused.
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