Smith v The Queen
[2013] VSCA 310
•1 November 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2013 0104 | |
| DAMIEN JOHN SMITH | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES | REDLICH JA and LASRY AJA |
| WHERE HELD | MELBOURNE |
| DATE OF JUDGMENT | 1 November 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 310 |
| JUDGMENT APPEALED FROM | (Unreported, County Court of Victoria, Judge Mullally, 25 July 2012) |
---
CRIMINAL LAW – Election – Application for extension of time to file notice of appeal against sentence – Delay – Notice of appeal filed 10 months after date of sentence – Whether applicant’s appeal likely to succeed – Manifest excess – Application refused – Bowling v The Queen [2013] VSCA 87 applied – Criminal Procedure Act 2009 ss 313, 315.
---
ELECTION TO HAVE APPLICATION DETERMINED BY COURT OF APPEAL
PURSUANT TO S 315(2) OF THE CRIMINAL PROCEDURE ACT 2009
---
DETERMINED ON THE PAPERS
REDLICH JA:
I agree that, for the reasons given by Lasry AJA, the application for an extension of time within which to file a notice of appeal against sentence should be refused.
LASRY AJA:
On 18 May 2012, a jury in the County Court found the applicant guilty of five charges of sexual penetration of a child under the age of 16 and one charge of an indecent act with a child under the age of 16. As the table below indicates he was also acquitted of a number of charges.
On 25 July 2012, the applicant was sentenced as follows:
Charge
Maximum
Sentence
Cumulation
Charge 1 – indecent act with a child under 16 10 years’ imprisonment 3 months’ imprisonment Charge 2 – sexual penetration of a child under 16 10 years’ imprisonment 18 months’ imprisonment 6 months Charge 13 – sexual penetration of a child under 16 10 years’ imprisonment 4 years’ imprisonment 9 months Charge 14 – sexual penetration of a child under 16 10 years’ imprisonment 5 years’ imprisonment Base sentence Charge 15 – sexual penetration of a child under 16 10 years’ imprisonment 4 years’ imprisonment 9 months Charge 16 – sexual penetration of a child under 16 10 years’ imprisonment 5 years’ imprisonment 18 months
The total effective sentence is therefore 8 years and 6 months. Pre-sentence detention was declared at 68 days. The sentencing judge ordered that the applicant serve 6 years’ imprisonment before being eligible for parole.
The applicant was sentenced as a serious sexual offender on charges 13, 14, 15 & 16 but the Crown did not contend that a disproportionate sentence should be imposed. He was also found to be a registrable offender under Sex Offenders Registration Act 2004.
On 14 June 2013, almost a year after the sentence was imposed, the applicant filed a Notice of Application for Leave to Appeal against his sentence. Self evidently, it was necessary for the prescribed time in which to lodge such an appeal to be extended before the application could proceed. On 27 July 2013, the Deputy Registrar of this Court refused an extension of time. On 6 August 2013, the applicant gave notice of his election to have the application for an extension of time determined by this Court.
The facts can be briefly summarised as follows. The victim of the applicant’s crimes was a 14 year old girl known as TA. The applicant met her and her mother in 2008 and they all began living together in the Dandenongs in November 2008 as well as two siblings of TA. There were difficulties within the family and the applicant, TA and her mother were cannabis users. Further, TA developed a ‘crush’ on the applicant which he clearly exploited.
The specific offending began in December 2008 and charge 1 alleged that the applicant fondled the breasts of TA. Charge 2 alleged the digital penetration of TA’s vagina. Charge 13 which occurred during February 2009, concerned the applicant placing his penis in TA’s mouth and ejaculating. Charge 14 involved penile penetration of TA whilst she was menstruating and over her objection for that reason. Charge 15 involved a separate but similar activity and charge 16 also involved penile penetration of TA’s vagina. This last incident occurred in a public toilet. Charges 13-16 are all alleged to have occurred during February 2009.
The single ground of appeal is that the sentence imposed on the applicant is manifestly excessive.
Before dealing with the merits of the appeal, I will first briefly refer to the principles which apply to the application for extension of time. The time limits within which to commence an appeal are prescribed under the Criminal Procedure Act 2009 (‘the Act’) and require that the application for leave to appeal be commenced by the filing of a notice within 28 days of the sentence.[1] Under s 313 of the Act, the Court or Registrar may extend the time.
[1]Criminal Procedure Act2009 s 279.
In Bowling v The Queen,[2] Redlich JA concisely and directly stated the rules that applied as well as the policy and its importance. His Honour’s observations included the following:
The applicant must show, however, that the circumstances are such that the discretion to extend the time in which the applicant should be permitted to file such a notice should be exercised in the applicant's favour.
The time limits set out in the rules of Court are not to be treated as some empty formality. The rules are intended to ensure finality of the litigation and compliance with time limits will be required in the ordinary case. The applicant must generally place material before the Court which will persuade the Court that there are special and substantial reasons to extend the time.
The longer the time which has elapsed since the expiration of the prescribed period, the more special the circumstances will have to be. Where there is a considerable lapse of time, the practice of the Court is not to grant the extension unless the Court is satisfied that there are such merits in the proposed appeal that it would probably succeed. These considerations have been repeated by this Court on numerous occasions.[3]
[2][2013] VSCA 87.
[3]Ibid [15] (citations omitted).
In this case, the application for extension of time is supported by an affidavit of Ms Jacqueline Kennedy, solicitor, of the firm Leanne Warren and Associates. Ms Kennedy had been the solicitor for the applicant instructing counsel during his trial. Ms Kennedy has deposed that after the applicant’s trial was completed, and which I take to include the imposition of sentence, she and counsel advised him there was no ‘basis for an appeal’. On 23 August 2012, the applicant indicated that he wanted to appeal and the matter was referred by the solicitors to Victoria Legal Aid for their assessment and in the hope they would assist. That process took until 6 March 2013 when VLA approved assistance for an application for leave. Two weeks later counsel was briefed but it was not until 5 June 2013 that the written case was provided. That delay may have been due, among other things, to waiting for the transcript of the plea and sentence to be prepared by Victorian Government Reporting Service. That is not a criticism of the service but a statement of the reality of resources under pressure.
Little of the delay can be attributed to the applicant and such of it that can be was likely to have been affected by the advice he was given immediately after the trial was completed and sentence imposed. Nonetheless, the delay is substantial and the filing of the notice was some 10 months out of time. As I understand the applicable principles, the applicant must establish that it is likely his appeal against the sentence imposed on him will succeed. I have come to the conclusion that he has failed to do so.
A claim that a sentence is manifestly excessive involves an assertion that the sentence imposed was outside the range of sentences available to the sentencing judge. As Winneke P said in Boaza v The Queen:[4]
In the absence of specific error it is, of course, not an easy task for an applicant to demonstrate to an appellate court that the sentencing discretion has miscarried on the ground that the sentence imposed is a manifestly excessive one. It is trite to say that before an appellate court can interfere it would need to be persuaded that the sentence imposed by this very experienced judge was wholly outside the range of sentencing options available to him.
[4][1999] VSCA 126.
In the applicant’s written case, after acknowledging that the offending was serious and called for a ‘substantial period of imprisonment’, it was submitted that there were a number of factors which were powerful in mitigating the sentence.
During the plea presented on behalf of the applicant, a number of matters had been relied upon. They included his lack of prior convictions. He also had a difficult family background in relation to the fracture of his parents marriage which in turn affected his education. The applicant has four children from a relationship and is and/or will be estranged from them during his imprisonment which is a cause of significant stress. Also, the applicant was apparently involved in a community men’s group to which he made a significant contribution. He is, it was submitted, a mentally fragile person though not in any diagnostic sense that would attract the Verdins principles. He has also had a substance abuse problem with cannabis which featured during the commission of these offences. The arrangements which led to the offences being committed were, it was argued and conceded, not orchestrated in any predatory way. There was a delay in the matter coming on for trial which was caused by both the pressure of business in the court and illness.
In response the prosecutor referred to the lack of remorse given the continued denial of these matters. He referred to the significant effect on the victim in both the short and long term. He referred to what he described as aggravating factors being the family-type circumstances in which these offences were committed and the exploitation of a vulnerable 14 year old girl who had shown juvenile affection to the applicant. The Crown concluded by putting a range of sentences to the sentencing judge. That range was a seven to eight year head sentence with a non-parole period of between five and six years. Thus the head sentence imposed is beyond the range provided by the Crown and the non-parole period is at the upper end of it.
In his reasons, the sentencing judge took into account all of the matters I have summarised but concluded that a sentence just outside the prosecution’s range was justified. The applicant’s written case does not assert specific error by, for example, the sentencing judge having failed to give proper weight to any relevant sentencing factor. In my view the sentencing judge’s categorisation of the seriousness of these crimes was justified. That was so particularly given the nature of the conduct; the fact that it was spread over a period of some three months and the present and future impact on the victim. Those considerations coupled with a lack of remorse from the applicant meant that a substantial sentence was called for.
I acknowledge that the sentence is stern and, at least as to the head sentence, beyond the range offered by the prosecutor. In those circumstances the applicant’s appeal against sentence may be arguable. However, I am by no means persuaded that it is likely to succeed. I would therefore refuse the application for extension of time.
- - -
5
0
0