R v Pitt
[2001] VSCA 67
•14 May 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 119 of 2000
| THE QUEEN |
| v. |
| ANTHONY JAMES PITT |
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APPLICATION FOR EXTENSION OF TIME
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JUDGES: | WINNEKE, P., BROOKING and CHARLES, JJ.A. |
WHERE HELD: | MELBOURNE |
DATE OF APPLICATION: | 14 May 2001 |
DATE OF JUDGMENT: | 14 May 2001 REVISED 28 May 2001 |
| MEDIUM NEUTRAL CITATION: | VSCA [2001] 67 |
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Criminal law - Procedure - Application to extend time for appealing against conviction - Application previously refused by Registrar - Principles to be applied - Procedure to be followed by Registrar discussed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A.Coghlan,Q.C. | S. Carisbrooke, Acting Solicitor for Public Prosecutions |
For the Applicant | In person |
WINNEKE, P. (delivering judgment of the Court):
In this case the applicant, Anthony James Pitt, who is currently aged 44 years, applies to this Court to extend the time for applying for leave to appeal against convictions recorded against him on 16 December 1999. The applicant had pleaded guilty to one count of false imprisonment and two counts of rape, it being agreed that the first count of rape was representative in character. In respect of the sentence on the second count of rape the judge treated the applicant as a serious sexual offender in view of the fact that he had been previously sentenced to imprisonment for a relevant sexual offence. After hearing a plea, during the course of which the sentencing judge heard evidence from Dr Walton and read a report from Dr Senadipathy, he sentenced the applicant to 5 years on the count of unlawful imprisonment, 12 years on the first count of rape (the representative count) and 6 years on the second count of rape. His Honour ordered cumulation of 6 years of the sentence on the first count of rape and the whole of the 6 years imposed on the second rape offence upon the 5 years imposed for the offence of unlawful imprisonment. This produced a total effective sentence of 17 years' imprisonment, and his Honour directed that the applicant serve a period of 15 years before becoming eligible for parole.
It is unnecessary for this Court to revisit the circumstances in which the offences were committed, save to say that it is very difficult to think of worse circumstances of rape than those which confronted the sentencing judge.
On 20 December 1999 the applicant applied for leave to appeal against the sentences imposed. That application has yet to be heard. However, on 15 May 2000 the applicant lodged with the Registrar an application to extend the time within which he might apply for leave to appeal against his convictions. He claims in his notice that he was mentally ill and not in a good frame of mind at the time when he pleaded guilty, and also that he was "under duress" which led him to form the view that he wanted to get out of the court and the Ballarat cells as quickly as possible. He now says that he wishes to challenge his conviction because there is some proof that he did not rape the victim, and the applicant has expanded upon the reasons for desiring to appeal against his convictions before us this morning.
Before we deal with the merits of the application, we wish to mention one matter which concerns the manner in which the application has so far been dealt with. Pursuant to s.582A of the Crimes Act and the Rules made pursuant to the Act, applications for extension of time for leave to appeal against conviction may fall to be dealt with first by the Registrar of Criminal Appeals without prejudice to the applicant's right to have the matter referred to this Court for reconsideration should the Registrar refuse the extension sought. The practice of the Registrar has been to refer the notice of application to the Director of Public Prosecutions for the purpose of receiving the Director's attitude, in affidavit form or otherwise, to the application. That was done in this case and the Director did swear and file an affidavit in which he opposed the application. The Registrar then decided the application on the material which he then had and provided to the applicant a copy of the Director’s affidavit when informing him of his (the Registrar’s) decision. This practice conforms to the Criminal Procedure Rules (R.2.08(3)). The rule is predicated on the basis that, because the applicant retains the unfettered right to have the matter referred to the Court, no relevant unfairness flows to him or her from withholding the Director’s affidavit until notifying the applicant of the Registrar’s decision.
In the circumstances of this case, the applicant has exercised his right to have the matter referred to this Court - and has had an opportunity now of having the objections of the Director ventilated in open court and to make such submissions as he has desired to make in the face of those objections.
We have explained to the applicant that this Court is unable to accede to his application to extend the time to enable him to appeal against his convictions. At the time when the applicant was arraigned and pleaded guilty to the offences of which he was convicted, he was represented by both counsel and solicitor. There is no suggestion in the material before us that he was unable to comprehend the nature of the pleas which he made; nor is there any suggestion that he was unfit to make such pleas. Indeed, the material before the sentencing court was to the contrary. As we have noted, the applicant, with due expedition, filed notice of application for leave to appeal against the sentence imposed, but it was not until some five months later that he applied for leave to extend the time to appeal against the convictions.
This Court will only give leave extending the time to file an application for leave to appeal against a conviction if it is satisfied on the material before it that, first, there are sound reasons to explain the failure to apply within the time limited by s.572 of the Crimes Act; and, secondly, there is merit in the proposed application in the sense that the applicant has reasonable prospects of success were the application to proceed[1]. In this case the material discloses that the applicant falls at each hurdle. Generally speaking, it would be unlikely that the Court would extend the time to appeal against a conviction recorded after and in accordance with a plea of guilty which, after all, amounts to an admission by the applicant of all the essential ingredients of the offence with which he is charged[2]. This is not a case where it is manifest on the papers that the applicant had pleaded guilty to an offence of which he could not have been lawfully convicted. On the contrary it was a case where the plea accepted the very elements of the offences which the applicant now wishes to dispute. Furthermore, the material before the judge makes it clear beyond peradventure, we think, that the applicant would have no real prospect of succeeding in his proposed appeal. Nor, in our view, does the material before us adequately explain the very significant lapse in time which passed before he signified his intention to appeal against the convictions recorded consequent upon his pleas of guilty. Rather, the fact that he lodged his application for leave to appeal against sentence with dispatch tends to suggest that his application for leave to extend the time to appeal against conviction is an afterthought. Indeed that proposition is reinforced by the inability of the applicant to point to any substantive and persuasive facts to support his present claim that there is a prospect of challenging his convictions for rape.
[1]R. v. O’Keefe [1979] V.R. 1 at 5.
[2]R. v. Craker [1999] VSCA 63 at [16].
Accordingly, we refuse the application.
Do you follow that, Mr Pitt, that we have refused your application for extension of time?
APPLICANT:
Yes, I do.
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