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WA v The Queen

WA v The Queen

Case [2014] NSWCCA 92 27 May 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: WA v R [2014] NSWCCA 92
Hearing dates: 9 May 2014
Decision date: 27 May 2014
Before: Leeming JA; Fullerton J; RA Hulme J
Decision:
Leave to extend time within which to appeal is refused.

Catchwords: CRIMINAL LAW - appeal against sentence - application to extend time - unsatisfactory explanation for substantial delay - failure to demonstrate appellable error - extension of time refused
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 19
Crimes Act 1900 (NSW), s 18
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Cases Cited: Abdul v R [2013] NSWCCA 247
Achurch v The Queen [2014] HCA 10
Alpha v R [2013] NSWCCA 292
DSG Holdings Australia Pty Ltd v Helenic Pty Ltd [2014] NSWCA 96
Edwards v R [2009] NSWCCA 199
Etchell v R [2010] NSWCCA 262; 205 A Crim R 138
Finch v Telstra Super Pty Ltd [2010] HCA 36; 242 CLR 254
Foley v Ellis [2008] NSWCA 288
Golossian v R [2013] NSWCCA 311
House v The King (1936) 55 CLR 499
Jawish v R [2014] NSWCCA 62
Maglis v R [2010] NSWCCA 247
Miles v R [2014] NSWCCA 72
Outram v R [2013] NSWCCA 329
R v GDR (1994) 35 NSWLR 376
R v West [2011] NSWCCA 91
Simon v R [2013] NSWCCA 328
Simpson v R [2001] NSWCCA 534; 53 NSWLR 704
Category: Principal judgment
Parties: WA (Applicant)
Regina (Respondent)
Representation: SJ Odgers SC (Applicant)
V Lydiard (Crown)
Voros Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/259630
Decision under appeal

Citation:

R v WA [2012] NSWSC 1317

Date of Decision:

2012-10-26 00:00:00

Before:

Button J

File Number(s):

2009/259630

Judgment

THE COURT: The applicant pleaded guilty to manslaughter, contrary to s 18 of the Crimes Act 1900 (NSW), on the twelfth day of his trial for murder. The sentencing judge accepted that he had offered to plead guilty to manslaughter at an early stage, and allowed a discount of 25% for the plea. On 26 October 2012, the applicant was sentenced to a term of 8 years imprisonment commencing on 23 November 2009, with a non-parole period of 6 years. This is an application for leave to appeal against that sentence.

Factual background

The applicant shot and killed Mr Slobodan Simic on 2 August 2009 on a public street, following an altercation involving the applicant's brother and cousin. Each of those men pleaded guilty to manslaughter, and had earlier been sentenced to terms of imprisonment of 6 years and 3 months with a non-parole period of 4 years, and 7 years with a non-parole period of 4 years and 6 months, respectively.

The sentencing judge proceeded on the basis of a statement of agreed facts, supplemented with some findings based on evidence adduced at the trial (the defence took no objection to that course). The essential facts may be summarised as follows. On the evening of Saturday 1 August…

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 WA v The Queen

Details

AGLC: WA v The Queen [2014] NSWCCA 92
Case: [2014] NSWCCA 92
Decision Date: 27 May 2014

CaseChat Overview and Summary

The appellant in this case, who was convicted of serious criminal offences, sought an extension of time to appeal against his sentence. The application for an extension was made in the High Court of Australia. The primary issue before the court was whether the appellant had provided an adequate explanation for the substantial delay in lodging his notice of appeal and whether he had demonstrated an arguable error of law in the sentence imposed upon him.

The court considered the appellant's reasons for the delay, which included his reliance on legal advice and the complexity of his case. The court found that the appellant's explanation for the delay was unsatisfactory as it did not provide a clear or convincing reason for the substantial delay. The court also noted that the appellant had failed to demonstrate any arguable error of law in the sentence imposed. Given these factors, the court was not persuaded that the appellant had made out a case for an extension of time to appeal against his sentence. The court accordingly refused the application for an extension of time.

The court emphasised that applications for an extension of time to appeal are not to be treated lightly, and that applicants must provide a satisfactory explanation for any delay in lodging their notice of appeal. The court also noted that the appellant had not demonstrated any arguable error of law in the sentence imposed, and that the appeal would therefore be unlikely to succeed. The final orders of the court were that the application for an extension of time be refused, and that the appeal against sentence be dismissed.

Orders