Rehal v The Queen - [2015] VSCA 81

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0024

MIAN REHAL	Applicant
v
THE QUEEN	Respondent

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JUDGES:	OSBORN and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 May 2015
DATE OF JUDGMENT:	1 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 81 (1st revision 04/05/15)
JUDGMENT APPEALED FROM:	DPP v Rehal [2013] VCC 814 (Judge Lacava)

ELECTION TO HAVE APPLICATION DETERMINED BY THE COURT OF APPEAL
PURSUANT TO S 313(2) OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Application for extension of time to file notice of appeal against sentence – Delay of 20 months – Whether probability of demonstrating sentence manifestly excessive – Applicant seeking to rely on material available, but not relied on, on plea – Whether likely miscarriage of justice by reason of omission of applicant’s legal representatives to rely on material – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	The applicant appeared in person
For the Respondent:	Mr B F Kissane QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

OSBORN JA

I will ask Justice Kaye to deliver the first judgment.

KAYE JA:

On 8 May 2013, the applicant pleaded guilty to one charge of intentionally causing serious injury to his wife, Ghazala Rehal, contrary to s 16 of the Crimes Act 1958. On 24 May 2013, he was sentenced to five years’ imprisonment, with a minimum non-parole period of three years and four months. The judge made a declaration, pursuant to s 18 of the Sentencing Act 1991, that there had been 379 days presentence detention.

By an application made to this Court dated 10 February 2015, the applicant now applies for an extension of time within which to file and serve a notice of application for leave to appeal against his sentence.

The background facts to the case may be summarised briefly. The applicant, who is 59 years of age, came to Australia in approximately 1980. In October 1998, he married his wife, Ghazala, in Pakistan, and they returned to Australia. There were three children of the marriage, two sons, and a daughter, who were, at the time of the sentence, aged 12 years, 11 years and 8 years respectively.

The offending occurred on 10 May 2012. The applicant and his wife and children were then living in a house in Shepparton. There had already been some previous difficulties in the marriage, resulting in Ghazala obtaining two intervention orders against the applicant. Those orders were removed, and, in December 2011, the applicant returned to living with her and the children.

On 10 May, the applicant had a disagreement with Ghazala concerning family finances. During the day, the applicant drank a number of beers and some rum. He denigrated his wife to his elder son, and accused her of infidelity. Ghazala overhead that conversation. As a result, a confrontation developed, in the course of which

Ghazala pushed the applicant in the face with her open hand. The applicant responded by hitting Ghazala in the face…

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 Rehal v The Queen

Details

AGLC: Rehal v The Queen [2015] VSCA 81
Case: [2015] VSCA 81
Decision Date: 1 May 2015

CaseChat Overview and Summary

In the matter of Rehal versus The Queen, the applicant sought an extension of time to file a notice of appeal against his sentence. The delay in filing the notice amounted to 20 months, and the central issue before the court was whether the applicant could demonstrate that the sentence was manifestly excessive. Furthermore, the applicant proposed to rely on material that was available but not used during the plea process. The court had to determine whether the applicant's legal representatives' failure to use this material could result in a miscarriage of justice.

The court examined the principle that an appeal against sentence should be brought within the prescribed time, unless there was a probability of demonstrating that the sentence was manifestly excessive. The applicant's argument centred on the notion that the omitted material, if considered, might have led to a more lenient sentence. However, the court held that the applicant had not provided sufficient evidence to establish a real prospect of demonstrating that the sentence was manifestly excessive. Additionally, the court was not persuaded that the failure of the applicant's legal representatives to rely on the material would likely result in a miscarriage of justice.

Consequently, the court dismissed the applicant's application for an extension of time to file a notice of appeal against his sentence. The court found that the applicant had not met the threshold required to grant an extension based on the probability of demonstrating a manifestly excessive sentence. The court did not consider the omitted material to be so significant that it would likely result in a different outcome if it had been relied upon during the plea process. Therefore, the application was refused, and the applicant's opportunity to appeal against the sentence was denied.

Orders