SOKMAS -v- HOWARD [2013] WASC 399

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 399
Case No:	SJA:1072/2013	Heard:	28 OCTOBER 2013
Coram:	ALLANSON J	Delivered:	5/11/13
No of pages:	9	Judgment Part:	1 of 1
Result:	Application for extension of time to appeal refused
Category:	B
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Parties:	EFTO STEVEN SOKMAS MITCHELL WAYNE HOWARD
Catchwords:	Criminal law Appeal Application to extend time to appeal Merit of grounds of appeal Turns on own facts
Legislation:	Criminal Appeals Act 2004 (WA), s 10(3) Misuse of Drugs Act 1981 (WA), s 7(1)(a), s 7(2), s 11(b), sch VI
Case References:	Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338 Eastough v The State of Western Australia [No 2] [2010] WASCA 88 Zuccala v The State of Western Australia [2008] WASCA 129

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : SOKMAS -v- HOWARD [2013] WASC 399 CORAM : ALLANSON J HEARD : 28 OCTOBER 2013 DELIVERED : 5 NOVEMBER 2013 FILE NO/S : SJA 1072 of 2013 BETWEEN : EFTO STEVEN SOKMAS

Appellant

AND

MITCHELL WAYNE HOWARD

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE R G W BAYLY

File No : PE 20459 of 2011

Catchwords:

Criminal law - Appeal - Application to extend time to appeal - Merit of grounds of appeal - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 10(3)

Misuse of Drugs Act 1981 (WA), s 7(1)(a), s 7(2), s 11(b), sch VI

Result:

Application for extension of time to appeal refused

Category: B

Representation:

Counsel:

Appellant : Mr S B Watters

Respondent : Ms G M Cleary

Solicitors:

Appellant : Lumlan & Associates

Respondent : Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338
Eastough v The State of Western Australia [No 2] [2010] WASCA 88
Zuccala v The State of Western Australia [2008] WASCA 129

1 ALLANSON J: Efto Steven Sokmas was convicted on 26 September 2012 on a charge that he cultivated a prohibited plant with intent to sell or supply, contrary to s 7(1)(a) of the Misuse of Drugs Act 1981 (WA). He was fined and ordered to pay costs.

2 The appellant seeks leave to appeal from that decision. The appeal notice was only filed on 10 June 2013, and was more than seven months out of time. In an affidavit filed on 10 June, in support of an application to extend time, the appellant says that he does not recall being advised of the right to appeal and incorrectly assumed that he had no right of appeal until he engaged his present solicitors in about March 2013 to defend a related criminal property confiscation matter. Further delays were caused by his work commitments, and delay in obtaining his file from a previous solicitor.

3 In a second affidavit, filed 23 August 2013, the appellant gives some further detail. In particular,…

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 Sokmas v Howard

Details

AGLC: SOKMAS -v- HOWARD [2013] WASC 399
Case: [2013] WASC 399
Decision Date: 5 NOVEMBER 2013

CaseChat Overview and Summary

In the case of Sokmas v Howard, the appellant sought an extension of time to appeal against a conviction and sentence imposed by the Supreme Court of South Australia. The appellant had been found guilty of various charges, including aggravated sexual assault, and sentenced to imprisonment. The primary legal issue before the court was whether the appellant had demonstrated sufficient grounds for an extension of time to appeal, as the statutory time limit for appealing the conviction and sentence had expired.

The court considered whether the appellant's grounds of appeal, which included claims of procedural unfairness and errors in the application of the law, were meritorious and whether the delay in lodging the appeal could be justified. The court examined the evidence and arguments presented by both parties, assessing the strength of the appellant's case and the reasons for the delay in filing the appeal. Ultimately, the court determined that while the grounds of appeal had some merit, the appellant had not provided a satisfactory explanation for the delay, and therefore, the application for an extension of time to appeal was refused.

The court held that the appellant had not demonstrated that the appeal had a reasonable prospect of success or that there were exceptional circumstances justifying the late filing. Consequently, the application for an extension of time to appeal was dismissed, and the appeal itself was not proceeded with. The court's decision underscored the importance of timely appeals and the need for a compelling justification for any delay in filing.

Orders

Orders of the court

Application for extension of time to appeal refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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