Shahbazi v The King
[2023] VSCA 127
•25 May 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
S EAPCR 2022 0077
| SHAHROUZ SHAHBAZI | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | PRIEST AP and T FORREST JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 25 May 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 127 |
| JUDGMENT APPEALED FROM: | DPP (Cth) v Kazemi & Shahbazi [2016] VCC 431 (Judge Lawson). |
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CRIMINAL LAW – Appeal – Sentence – Practice and procedure – Second or subsequent appeal against sentence based on fresh evidence – Whether Court of Appeal has power to entertain further application for leave to appeal against sentence after previous application has been refused on the merits – Second application for leave to appeal against sentence incompetent – Visser v The King [2023] VSCA 10 applied.
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| Counsel | |||
| Applicant: | Mr J Murphy | ||
| Respondent: | Ms K Breckweg and Mr M Wilson | ||
| Solicitors | |||
| Applicant: | Victorian Bar Duty Barristers’ Scheme | ||
| Respondent: | Commonwealth for Director of Public Prosecutions | ||
PRIEST AP
T FORREST JA:
On 15 October 2015, the applicant and a co-offender, Hadi Kazemi, pleaded guilty before a judge in the County Court to two charges of importing a commercial quantity of a border-controlled drug, methamphetamine.[1] Several months later, on 14 April 2016, the judge sentenced the applicant to a total effective sentence of eight years and six months’ imprisonment, with a non-parole period of five years and six months; and sentenced Kazemi to a total effective sentence of seven years’ imprisonment with a non-parole period of four years.[2]
[1]Criminal Code ((Cth), ss 11.2A and 307.1(1). The maximum penalty is life imprisonment.
[2]DPP (Cth) v Kazemi & Shahbazi [2016] VCC 431.
By a notice dated 12 May 2016, the applicant sought leave to appeal against his sentence on a single ground that contended that the disparity between his and Kazemi’s sentence ‘was not reasonably open in all the circumstances’.
A judge of this Court refused leave to appeal against sentence on 27 July 2016.[3] Following that refusal, the applicant elected to have his application for leave to appeal considered by two or more judges.[4] In the result, the Court constituted by two judges once more refused the applicant leave to appeal against his sentence (‘the first application’).[5] At the time, r 2.39 of the Supreme Court (Criminal Procedure) Rules 2008 (‘the 2008 Rules’) required the Registrar to give notice of the result to various individuals.[6] It provided:
[3]Shahbazi v The Queen (Unreported, 27 July 2016, Court of Appeal, Redlich JA).
[4]See Criminal Procedure Act 2009, s 315(2); Supreme Court (Criminal Procedure) Rules 2008, r 2.08 (now revoked).
[5]Shahbazi v The Queen [2016] VSCA 270 (Kaye and McLeish JJA).
[6]Rule 2.39 of the current Rules — the Supreme Court (Criminal Procedure) Rules 2017 (‘the 2017 Rules’) — is in the same terms.
2.39 Registrar to notify determination
(1) Upon the determination of an appeal or of any matter under section 315 of the Act, the Registrar shall give notice of the result in Form 6– 2M to—
(a) the appellant;
(b) the DPP;
(c) the governor of the prison (if any) in which the appellant is imprisoned;
(d) the Secretary to the Department of Justice; and
(e) the officer of the originating court.
(2) The Registrar shall also notify the officer of the originating court of any additional orders or directions made or given by the Court of Appeal
In accordance with r 2.39, the Registrar signed a Notification of Result of Appeal or Application (‘the Notification’).[7] So far as relevant, the Notice stated:[8]
TAKE NOTICE that the Court of Appeal has considered an application for Leave to Appeal against Sentence by Shahrouz Shahbazi.
And, on 16 November 2016, has decided:-
1. The application for leave to appeal is refused.
[7]The Notification is erroneously dated 18 October 2016. A Record of Court Hearing, dated 16 November 2016, signed by an Associate, records that the application for leave to appeal was refused on that date.
[8]Rule 2.39 required notice of the result in Form 6–2M, which was as follows:
On 18 November 2016, the Registrar forwarded the Notification by email to various parties and individuals, including the applicant’s solicitor; the Commonwealth Director of Public Prosecutions; Central Prison Records; Victoria Police Court Results Section; the Criminal Registry of the County Court; and the sentencing judge’s chambers.
Some years after the first application was determined, on 10 June 2022, the applicant filed an Application for Extension of Time to File Notice of Application [for Leave] to Appeal (‘the second application’),[9] relying on two grounds which assert that ‘Fresh evidence has come to light since the sentence was imposed’ —
… that the applicant will not be granted parole and he will have to serve the full sentence resulting in a manifestly excessive sentence due to his deportation which was still in dispute at original sentencing.
2 … as COVID Virus was not an issue at original sentencing however made the sentence excessive under the circumstances that the applicant will have to serve the entire sentence in custody with major interruptions to rehabilitation due to the COVID Virus.
[9]The applicant also filed an application under s 315 of the Criminal Procedure Act 2009, supported by an affidavit, seeking an extension of time within which to file the Notice.
Following this Court’s decision in Visser,[10] the parties were asked to address the question whether this Court had jurisdiction to entertain the applicant’s second application. Both the applicant — who had the assistance of counsel acting pro bono — and the respondent provided written submissions on that question, which they were content for the Court to deal with ‘on the papers’.
[10]Visser v The King [2023] VSCA 10 (Emerton P, Priest, McLeish, T Forrest and Kennedy JJA) (‘Visser’).
In our view, the applicant’s proposed second application is incompetent. Since it would thus be an exercise in futility to grant the extension of time sought by the applicant, we will refuse it. Our reasons follow.
The applicant’s submissions
Counsel for the applicant submitted that the applicant’s case is distinguishable from Visser because the order refusing his earlier application for leave to appeal has not been perfected. As a result, the Court has power to hear and determine the second application (subject to an extension of time being granted), and to recall or set aside the order of 16 November 2016 refusing the first application.
Somewhat simplified, counsel’s submission was that McNamara — which concerned r 2.30 of the Criminal Appeals and Procedure Rules 1988 (‘the 1988 Rules’) — was authority for the proposition that a decision of the Court of Appeal on an application for leave to appeal passed into record only when the presentment (or indictment) and the notification of the decision are filed and noted in the court of trial.[11] Counsel submitted that authority suggests that even where a copy of an appeal court’s order is filed in the trial court’s records together with the indictment, that is not enough to perfect the order.[12] At a minimum, what needs to occur is the noting of the appeal court’s decision in the records of the trial court (in particular, on the indictment). That, at least, was the position that obtained in this State under the 1988 Rules considered in McNamara. No different position applies in the present case, counsel submitted, since rr 2.39(1)(e) and (2) of the 2008 Rules corresponded in substance to r 2.30 of the 1988 Rules.
[11]R v McNamara (No 2) [1997] 1 VR 257, 265 (Winneke P, Charles JA and Southwell AJA) (‘McNamara’).
[12]Counsel also cited R v Billington [1980] VR 625, 631 (‘Billington’); R v Lapa (No 2) (1995) 80 A Crim R 398; Postiglione v The Queen (1997) 189 CLR 295, 298 (Dawson and Gaudron JJ); Burrell v The Queen (2008) 238 CLR 218, 234 [18] (Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ).
Counsel submitted that, as a result, the crucial question was whether this Court’s order of 16 November 2016, refusing the first application, was noted on the records of the County Court. The answer to that question, however, appears to be ‘no’, as the indictment held by the County Court contains no notation of the result of the first application. Since the order with respect to the first application has not been perfected, counsel submitted, the Court has jurisdiction to entertain the second application.
In the alternative — but on the same assumption that the order was not perfected — counsel submitted that this Court ought to treat the applicant’s application for an extension of time as an application to ‘recall’[13] or ‘set aside’[14] the order dismissing his first application.
[13]Billington, 631.
[14]R v Stephens (1990) 48 A Crim R 323, 327 (Allen J, Campbell J and Lusher AJ agreeing).
The respondent’s submissions
The respondent’s submission — once more, somewhat simplified — is that, once an application for leave to appeal is refused, the notification of the Court’s determination treats that determination as final and one which passes into record.[15] In this case, the notification of the Court’s determination of the first application given by the Registrar on 18 November 2018 perfected the Court’s order refusing the application.
[15]Visser, [38].
Analysis
Rule 35 of the Criminal Appeal Rules 1965 (‘the 1965 Rules’), considered in Billington, required the recording officer of the court of trial to enter the relevant particulars of the decision of the appellate court into the records of the court of trial.[16] No corresponding requirement is to be found in the 2008 Rules; or, for that matter, the 1998 Rules referred to in McNamara (which apparently endorsed the practice referred to in Billington).
[16]The first two paragraphs of rule 35 provided:
(a) At the final determination of an appeal the Prothonotary shall notify the recording officer of the Court of Trial as to the decision of the Full Court and any additional orders or directions made or given by the Full Court in relation to or connected with the appeal.
(b) On receipt of the notification from the Prothonotary, the recording officer of the Court of Trial shall enter the relevant particulars in the records of the Court of Trial.
Whatever may have been the practice when Billington and McNamara were decided, however, it is clear that the current practice — consistent with the requirements of r 2.39 of the 2008 Rules and 2017 Rules — is that the appellate court’s determination of an application for leave to appeal passes into record once notification of the determination is given. Thus, Winneke P (with whom Callaway and Eames JJA agreed) observed in GAM[17] that
if after a full hearing of the application upon its merits, the court dismisses or refuses an application for leave to appeal, the notification of its determination treats that determination as final and one which passes into record.
[17]R v GAM (No 2) (2004) 9 VR 640, 642 [5].
Recently, in Visser, a full bench of this Court explicitly and unequivocally approved of the reasoning in GAM, including, so it seems to us, the practice referred to in the passage extracted immediately above. As a result, we consider that we are bound to conclude that the Court’s determination of the applicant’s first application for leave to appeal passed into record on 18 November 2016 when the Registrar provided the notification of the Court’s determination. In those circumstances, the Court has no jurisdiction to entertain the second application. The application for an extension of time must accordingly be refused.
Conclusion
The application for an extension of time within which to file an application for leave to appeal against sentence will be refused.
Rule 2.39 FORM 6–2M
[heading as in Form 6–2A]
NOTIFICATION OF RESULT OF APPEAL OR APPLICATION
In the case of R v. [name of appellant]
TAKE NOTICE that the Court of Appeal has considered—
* the appeal and has decided [complete appropriately];
* the application for—
* leave to appeal to the Court;
* extension of time for *filing/*serving notice of appeal or application for leave to appeal;
* bail
and has decided [complete appropriately].
Date:
[Signed]
Registrar of Criminal Appeals
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* Delete if not applicable
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10
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