Legal Research
Cases
Smith v The Queen

Smith v The Queen

Case [2013] VSCA 310 1 November 2013

Manifest Excess

Limitation Periods

Criminal Procedure Act 2009

Criminal Law

Type to search within this case.

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

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…

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 Smith v The Queen

Details

AGLC: Smith v The Queen [2013] VSCA 310
Case: [2013] VSCA 310
Decision Date: 1 November 2013

CaseChat Overview and Summary

In the Supreme Court of Victoria, Damien John Smith applied for an extension of time to file a notice of appeal against his sentence. Smith was convicted of multiple charges of sexual penetration and an indecent act with a child under the age of 16. The applicant was sentenced to a total effective term of 8 years and 6 months imprisonment. Smith sought to appeal the sentence, claiming it was manifestly excessive, but he filed the notice of appeal outside the prescribed time limit. The primary issue before the Court of Appeal was whether Smith had demonstrated special and substantial reasons to warrant an extension of time to file the notice of appeal against his sentence. The Court needed to consider the delay in filing the notice, the likelihood of the appeal succeeding, and whether the sentence was manifestly excessive.

The Court of Appeal held that Smith had not demonstrated that his appeal was likely to succeed. The sentencing judge had taken into account the relevant mitigating factors, but the serious nature of the offences, the impact on the victim, and the lack of remorse justified the sentence imposed. The Court emphasised that the applicant must show that the appeal has merits that it would probably succeed. Given the delay in filing the notice of appeal and the lack of a strong likelihood of success, the Court refused the application for an extension of time. The Court applied the principles established in Bowling v The Queen, where it was held that the longer the time elapsed since the expiration of the prescribed period, the more special the circumstances would have to be for an extension to be granted.

The Court of Appeal determined that the application for an extension of time should be refused. The delay in filing the notice of appeal was substantial, and Smith had not established that it was likely his appeal against the sentence would succeed. The Court concluded that the sentence was not manifestly excessive, as it fell within the range provided by the prosecutor and was justified by the seriousness of the offences and the impact on the victim. Therefore, the applicant's application for an extension of time was denied, and the appeal against the sentence was not proceeded with.

Orders