R v RTG - [2004] VSCA 89

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 237 of 2002

THE QUEEN
	v.
R.T.G.

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JUDGES:	BATT, CHERNOV and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 May 2004
DATE OF JUDGMENT:	6 May 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 89

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Criminal Law - Procedure - Application for extension of time for leave to appeal against sentence - Refusal by Registrar to extend time - Failure by applicant to give notice of election - Application for extension of time not prosecuted some 12 months - Delay due to administrative shortcomings of Victoria Legal Aid - Satisfactory explanation for delay - Substantive application has sound prospects of success - Interests of justice require grant of extension of time - Crimes Act 1958, ss. 572(1), 582A(1), Supreme Court (Criminal Procedure) Rules 1998, rr.22.03, 2.08

Criminal Law - Sentencing - Incest (5 counts) - Plea of Guilty - Victim 17 year old daughter - Three incidents over two day period - Applicant sentenced as a serious sexual offender on 3 counts - Significant mitigatory circumstances - Sentence manifestly excessive - Applicant re-sentenced to 7 years' imprisonment with a non-parole period of 4½ years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr N.T. Robinson	Victoria Legal Aid

CHERNOV, J.A:

On 8 August 2002 the applicant, who is now aged 35, pleaded guilty to five counts of incest committed by him on 22 and 23 February 2001 against his then 17 year old daughter. The maximum penalty for incest is 25 years' imprisonment. The applicant has no relevant prior convictions. After the conduct of a plea in mitigation made on his behalf, the applicant was sentenced on 9 August 2002 to a total effective sentence of nine years' imprisonment and ordered to serve a period of seven years' imprisonment before being eligible for parole. The applicant, who wishes to appeal against the sentence, has failed to instigate the appeal process within the 14 day period prescribed by s.572(1) of the Crimes Act 1958. Consequently, if he is to proceed, he will need to obtain an extension of time within which to give notice of his application for leave to appeal and, because he has also failed to give notice of election, as is required by Chapter VI of the Supreme Court (Criminal Procedure) Rules 1988 ("the Rules"), that the application for extension of time be heard by this Court, he will need to obtain an order dispensing with the requirements of the relevant Rule. Hence, the applicant now seeks such orders and if an extension of time is granted, he seeks leave to appeal against the sentence. The ground on which the applicant seeks to challenge the sentence is that it is manifestly excessive and, in particular, that the sentencing judge gave insufficient weight to his plea of guilty as evidence of his remorse, the age of the victim and the applicant's lack of prior convictions.

Before dealing with…

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 RTG

Details

AGLC: R v RTG [2004] VSCA 89
Case: [2004] VSCA 89
Decision Date: 6 May 2004

CaseChat Overview and Summary

In the case of R v RTG, the appellant sought an extension of time to apply for leave to appeal against his sentence, following a guilty plea to five counts of incest involving his 17-year-old daughter. The initial application for leave to appeal was not prosecuted within the required timeframe due to administrative shortcomings of Victoria Legal Aid. The court had to determine whether the applicant's delay in filing the application for an extension of time could be excused and whether the application itself had sound prospects of success.

The legal issues before the court were whether the Registrar could extend the time for the applicant to apply for leave to appeal, and if the applicant's delay in lodging the application for an extension of time could be excused. The court considered the criteria under the Supreme Court (Criminal Procedure) Rules 1998, rules 22.03 and 2.08, and the provisions of the Crimes Act 1958, sections 572(1) and 582A(1). The court also examined whether the applicant's delay was due to administrative shortcomings and if the applicant had provided a satisfactory explanation for the delay.

The court found that the applicant had provided a satisfactory explanation for the delay, which was due to the administrative shortcomings of Victoria Legal Aid. The court noted that the applicant's application for leave to appeal had sound prospects of success because the original sentence was manifestly excessive, taking into account the significant mitigatory circumstances. The court held that the interests of justice required the grant of an extension of time. The applicant's sentence was re-assessed, and he was re-sentenced to 7 years' imprisonment with a non-parole period of 4½ years.

The court granted the applicant's application for an extension of time and ordered that the application for leave to appeal be heard on its merits. The court also re-sentenced the applicant to 7 years' imprisonment with a non-parole period of 4½ years.

Orders