R v Versac - [2015] QCA 213

[2015] QCA 213

COURT OF APPEAL

HOLMES CJ
GOTTERSON JA
APPLEGARTH J

CA No 310 of 2014
SC No 315 of 2010

THE QUEEN

VERSAC, Alex Applicant

BRISBANE

MONDAY, 2 NOVEMBER 2015

JUDGMENT

HOLMES CJ: In 2010, the applicant was convicted after a trial of a number of offences, the most serious of which was trafficking in heroin. He was sentenced on 17 March 2011 to 10 years and six months’ imprisonment. He filed an application for an extension of time within which to seek leave to appeal against sentence on 22 November 2013 which, after a good deal of delay and being brought on for hearing, was refused on 5 August 2014: see R v Versac [2014] QCA 181.

On 27 November 2014 he filed the further application for an extension of time within which to seek leave to appeal against sentence with which we are presently concerned.

This Court in the past has had occasion to consider whether jurisdiction exists to hear a second application for an extension of time – see, for example, R v Lemmo [2015] QCA 105 – without resolving the issue. I find it unnecessary to explore that question here because I have reached the view for other reasons that the application should be dismissed.

The applicant here today complained that on the hearing of his previous application for an extension of time he was not in proper circumstances to make his arguments because he was in maximum security and was wearing restraints. That resulted in his being flustered, and he repeated a single point which ended in the Court ending the hearing because he was repeating himself. He claims that that amounted to a denial of procedural fairness, although it is rather hard to see why a court should listen to one repeated point indefinitely.

In any event, it is evident that there were extensive written submissions filed on that occasion which are dealt with at length in the judgment of the Court. More to the point is whether today there is anything new and of substance presented to this Court which would justify an extension of time, given the Court’s previously having dealt with the matter.

Neither in this application nor in the preceding one has the applicant given any proper explanation of delay. On the previous occasion, he asserted that he had been focused on an appeal against conviction and other trials which he faced, that he was under some stress from having been imprisoned and that he was not given legal aid.

He now says that the counsel who was appearing for him on a special leave application decided against any application for leave to appeal against sentence because of a certainty that he would win the conviction appeal. He claims that other counsel from Legal Aid told him he would be silly to appeal while other matter were pending. There is no evidence filed to support those contentions and I find them entirely implausible. The Court on…

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 Versac

Details

AGLC: R v Versac [2015] QCA 213
Case: [2015] QCA 213
Decision Date: 2 NOVEMBER 2015

CaseChat Overview and Summary

In the Court of Appeal, the applicant, Alex Versac, sought an extension of time to appeal his conviction and sentence for trafficking in heroin. The appeal pertained to the application of the law to the sentence imposed by the trial judge, which had resulted in a 10-year and six-month imprisonment term. The applicant had previously filed an application for an extension of time to seek leave to appeal, which was denied. The current application was for a second extension, raising similar arguments and seeking to present new ones that were previously rejected. The legal issues before the Court were whether the application should be entertained given the previous refusal, whether the applicant had provided a satisfactory explanation for the delay, and whether the proposed grounds for appeal had any merit.

The Court found that the applicant had not provided a satisfactory explanation for the delay in seeking the extension. The Court dismissed the applicant's claims of procedural unfairness in the previous hearing, noting that the applicant had ample opportunity to present his arguments. The Court also dismissed the applicant's claims that the sentence was inappropriate, as they had already been rejected in the previous application. The Court found that the applicant's arguments lacked merit, particularly the claims that the sentencing judge failed to consider certain factors or that the sentence was excessive. The applicant's claims that the sentencing judge did not properly identify a range for the sentence or that parole eligibility should be set at a specific percentage of the head sentence were also rejected.

The Court held that the application for an extension of time should be refused. The Court found that the application was without merit and that the applicant had not provided a satisfactory explanation for the delay. The Court concluded that the application did not present any new or substantial arguments that would warrant a second opportunity to appeal. The Court dismissed the application, affirming the earlier decision that denied the applicant's first extension of time application. The Court's decision was unanimous, with all three judges agreeing that the application should be refused.

Orders