Regina v Rodgers

[2005] NSWCCA 163

CITATION:	Regina v Rodgers [2005] NSWCCA 163
HEARING DATE(S):	22 April 2005
JUDGMENT DATE:	22 April 2005
JUDGMENT OF:	Grove J at 1; Howie J at 14; Latham J at 15
DECISION:	EXTENSION OF TIME FOR LODGING APPEAL REFUSED

CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - EXTENSION OF TIME - SIX YEARS AFTER CONVICTION - STATUTORY DEFINITION OF SEXUAL INTERCOURSE - ATTEMPT TO BRING SECOND APPEAL
LEGISLATION CITED:	s61D(1) Crimes Act 1900
PARTIES:	Regina v Barry William John Rodgers
FILE NUMBER(S):	CCA 2004/2856
COUNSEL:	J. Girdham (Crown) In person (Applicant)
SOLICITORS:	S. Kavanagh (DPP)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	97/11/0552
LOWER COURT JUDICIAL OFFICER:	Nash ADCJ

2004/2856

GROVE J
HOWIE J
LATHAM J

22 April 2005

REGINA v BARRY WILLIAM JOHN RODGERS

Judgment

1 GROVE J: This is an application for extension of time for lodging an appeal brought by the applicant who has represented himself. It is necessary to sketch the background to this application.

2 On 19 February 1998, following pleas of guilty to eleven counts in an indictment, the applicant was sentenced to various terms of imprisonment by Nash ADCJ in Sydney District Court.

3 Counts 1 to 4 and count 10 in the indictment charged indecent assault upon a male person. Counts 5, 7, 9, and 11 charged sexual intercourse with a child under sixteen years contrary to s 61D(1) of the Crimes Act 1900. Counts 6 and 8 charged offences of assault and committing an act of indecency. The sentencing judge was also asked to take into account pursuant to the Form 1 procedure, offences of indecent assault on a male.

4 The span of time from the earliest offence charged to the latest was between 1 October 1978 and 21 July 1989.

5 The applicant sought and was granted leave to appeal against severity of sentence and on 6 August 1999 the sentence imposed in respect of count 11 was reduced.

6 The present application bears date 22 August 2004 although I note a record’s receipt date of 5 November 2004. For present purposes, I would accept the earlier date which is in excess of six years after the date of sentence and five years after the matter was dealt with in this Court on 6 August 1999.

7 In a written submission to the Court the applicant has set out the ultimate relief which he seeks in these terms:

“The ‘sexual intercourse’ convictions I am requesting to be overturned on appeal, to be substituted with the wording ‘indecent assault’, attracting the same degree of penalty as the pre 14 July 1981 offences”.

8 The applicant has drawn to attention that enquiries made by him have revealed that the extended definition of sexual intercourse in the Crimes Act was effected by legislation coming into effect on 14 July 1981 and that that provision has since been repealed. That information does not give a complete picture. The extended definition of sexual intercourse which was numbered s 61A of the Crimes Act was introduced in 1981 but on its repeal it was substituted by a section thereafter numbered s 61H.

9 The complaint of the applicant is that the offences described as sexual intercourse did not include any action by him such as anal or vaginal intercourse.

10 At all times between 1981 and the time of the applicant’s offences there was in place a definition of sexual intercourse which included activity such as fellatio. Such action was the basis of counts 5, 7, 9 and 11 in respect of which the applicant seeks intervention. Although the applicant was dealt with on some charges in respect of conduct prior to 1981, the earliest of those counts alleged commission of crime between 1 January 1982 and 30 November 1982.

11 Accordingly, at all relevant times there was in effect a statutory definition whereby the conduct of the applicant was lawfully described as sexual intercourse.

12 I have related these matters in order to demonstrate that there is no merit in the argument sought to be advanced by the applicant. In that circumstance, it is not necessary to consider in isolation whether the applicant should or should not be permitted to bring a second appeal to this Court some six years after conviction following his pleas of guilty. Neither is it necessary to elaborate upon the restriction upon the jurisdiction of this Court to entertain an appeal on a second occasion.

13 I propose that extension of time for lodging an appeal be refused.

14 HOWIE J: I agree.

15 LATHAM J: I also agree.

16 GROVE J: The order of the Court is that extension of time for lodging appeal is refused.

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