R v Sexton - [2006] VSCA 164

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 1504 of 2006

IN THE MATTER OF AN APPLICATION FOR BAIL BY:
	DARREN JAMES SEXTON

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JUDGES:	NETTLE and NEAVE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 August 2006
DATE OF JUDGMENT:	4 August 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 164

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P. Atkinson	Ms Angela Cannon, Solicitor for Public Prosecutions
For the Applicant	Ms F.L. Dalziel	Robert Stary & Associates

NETTLE, J.A.:

I will ask Neave, J.A. to deliver the first judgment.

NEAVE, J.A.:

On 16 December 2005 the applicant, Mr Sexton, was convicted by a jury on one count of aggravated burglary and one count of recklessly causing injury. He was sentenced to two years' imprisonment on the first count and 12 months' imprisonment on the count of recklessly causing injury, with six months to be served concurrently with the sentence imposed for count 1, amounting to a total effective sentence of imprisonment of two years and six months. A non‑parole period of 12 months was fixed. Taking into account 53 days of presentence detention, the applicant becomes eligible for parole on 17 December this year.

Applications for leave to appeal against conviction and sentence were lodged on behalf of the applicant on 14 February. Under Rule 2.09 of the Supreme Court (Criminal Procedure) Rules, a full statement of the grounds of appeal was required to be filed within two months of the filing of the Notice of Appeal. On 12 May 2006, the applicant's solicitor was advised by the registrar that the transcript of proceedings had not been received and that the time for filing the statement had been extended, until 19 July 2006. Because that time has expired the appeal stands dismissed under Rule 2.09(3)(1), but this court may order that it be reinstated under Rule 2.09.3(3).

Affidavits in support of the application for reinstatement of the appeal set out the circumstances in which the applicant's solicitor failed to file a full statement of the grounds of appeal by 19 July. On attending the Registry on 27 June the applicant's solicitor was told that the transcript had arrived at the Registry on 7 June, but has sworn an affidavit that he has no memory of his office being advised that the transcript was ready for collection. Counsel was briefed to prepare a full statement of grounds of appeal on 27 June, immediately after the transcript was received. Counsel for the applicant contacted the Registry on 18 July indicating that the transcript did not include closing addresses and that this was required for the preparation of grounds of appeal.

The reason for the failure to file the full statement of grounds cannot be attributed to the applicant and the Crown does not oppose reinstatement of the application for leave to appeal against sentence and conviction. Accordingly, I would make orders for reinstatement of the applications for leave to appeal.

I turn now to the application for bail pending appeal. 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 Sexton

Details

AGLC: R v Sexton [2006] VSCA 164
Case: [2006] VSCA 164
Decision Date: 4 August 2006

CaseChat Overview and Summary

In the Supreme Court of Victoria, Darren James Sexton sought to appeal his conviction and sentence for aggravated burglary and recklessly causing injury. The court also considered an application for bail pending the outcome of that appeal. Sexton was sentenced to two years and six months in prison, with a non-parole period of 12 months, making him eligible for parole on 17 December. The appeal against conviction and sentence was dismissed due to a missed deadline for filing the statement of grounds of appeal, but the court had the discretion to reinstate it. The court found that the circumstances surrounding the missed deadline were not attributable to Sexton and granted reinstatement. The court then turned to the bail application, noting that bail pending appeal is only granted in exceptional circumstances. Sexton argued that he would comply with bail conditions, had a "meritorious argument" for appeal, and might complete his non-parole period before the appeal is heard. The court found that the assertion of a "meritorious argument" was insufficient to show a good chance of success on appeal. While the possibility of completing the non-parole period before the appeal is heard may be relevant, it is not normally sufficient on its own to warrant bail. The Crown did not oppose bail, but the court must determine if exceptional circumstances exist. The court concluded that the circumstances did not meet the exceptional threshold and denied bail.

The court ordered that the application for leave to appeal against conviction and sentence be reinstated and that the application for bail pending appeal be refused.

Orders