Webb v The Queen
[2022] VSCA 85
•11 May 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0149
| PETER MICHAEL WEBB | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | PRIEST and WALKER JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 2 May 2022 |
| DATE OF JUDGMENT: | 11 May 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 85 |
| JUDGMENT APPEALED FROM: | DPP v Webb [2021] VCC 431 (Judge Johns) |
---
CRIMINAL LAW – Appeal – Sentence – Indecent assault upon male and buggery committed in 1977 – Victim aged eight or nine – Total effective sentence of six years and six months’ imprisonment – Applicant sentenced in 1977 for other offences – Where complaint leading to instant charges made in 2016 – Whether judge properly considered totality – Mill v The Queen (1988) 166 CLR 59, distinguished – Whether judge properly considered effect of reduced moral culpability on general deterrence – Bugmy v The Queen (2013) 249 CLR 571, R v Verdins (2007) 16 VR 269, discussed – Manifest excess – Where offending of utmost seriousness – Where no mitigation flowing from guilty plea – Sentence not manifestly excessive – Grounds of appeal have no prospects of success.
PRACTICE AND PROCEDURE – Application for extension of time – Notice of application for leave to appeal filed over five months late – No proper explanation proffered for delay – Madafferi v The Queen [2017] VSCA 302, applied – Application refused.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Reardon | Victoria Legal Aid |
| For the Respondent | Mr C Boyce QC | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
WALKER JA:
Introduction
On 27 November 2020, a jury empanelled in the County Court found the applicant guilty of buggery[1] (one charge — charge 8) and indecent assault on a male person[2] (seven charges — charges 1 to 7) perpetrated in 1977 against ‘RH’, then a young child.
[1]Crimes Act 1958, s 68(1). The maximum penalty was 20 years’ imprisonment.
[2]Crimes Act 1958, s 68(3A). The maximum penalty was five years’ imprisonment.
Following a plea, on 15 April 2021 the trial judge sentenced the applicant — who, as a result of prior convictions for qualifying sexual offences,[3] was sentenced as a serious sexual offender on all charges[4] — to a total effective sentence of six years and six months’ imprisonment, with a non-parole period of three years and six months, in accordance with the following table:
[3]See [12] below.
[4]Sentencing Act 1991, pt 2A.
Charge
Offence
Sentence
Cumulation
1
Indecent assault on a male person
18 months
1 month
2
Indecent assault on a male person
18 months
1 month
3
Indecent assault on a male person
2 years
3 months
4
Indecent assault on a male person
3 years
6 months
5
Indecent assault on a male person
3 years
6 months
6
Indecent assault on a male person
3 years
6 months
7
Indecent assault on a male person
18 months
1 month
8
Buggery
4 years 6 months
Base
Total effective sentence
6 years and 6 months’ imprisonment
Non-parole period
3 years and 6 months
Pre-sentence detention
139 days
Other orders
Life reporting pursuant to Sex Offenders Registration Act 2004, s 34
The applicant filed a notice of application for leave to appeal against sentence more than five months after the prescribed time.[5] He therefore also made an application for an extension of time within which to seek leave to appeal against sentence.[6] If granted an extension of time, the applicant sought leave to appeal against sentence on three proposed grounds:
1. the sentencing judge erred in the application of totality;
2. the learned sentencing judge erred by failing to consider the impact of the applicant’s reduced moral culpability on the weight to be afforded to general deterrence; and
3. the individual sentences and orders for cumulation are manifestly excessive.
[5]See Criminal Procedure Act 2009, s 279.
[6]See Criminal Procedure Act 2009, s 313.
Since, as we will explain, none of the proposed grounds has substance, it would be futile to grant the extension of time. It will be refused.
The offending
The offending that ultimately led to the impugned sentences occurred in a central Victorian rural town in 1977, when RH was aged eight or nine years, and the applicant was aged 28 or 29.[7] It occurred in the context of the applicant and RH being brought into regular contact, given the fact that the applicant’s and RH’s brothers were friends. Some 36 years were to intervene, however, before, in 2013, RH first disclosed the applicant’s sexual predations upon him. Thereafter, RH did not make a formal complaint to police until 2016.
[7]His date of birth is 13 May 1949.
To appreciate the seriousness of the applicant’s offending, it is necessary to summarise its essential details.
Charges 1 and 2
One day in 1977, both the applicant and RH were in some gardens, when the applicant called RH over and asked if he wanted to make some money. The applicant took RH to a secluded area under a bridge and sat down on the ground. He undid RH’s pants and pulled down the boy’s underpants exposing his penis. The applicant fondled RH’s penis, and pulled his own pants down. He then placed his hand over RH’s and showed RH how to masturbate him. The applicant then made RH masturbate him to ejaculation, and afterwards gave him some loose change.
Charges 3 and 4
On another occasion, RH accompanied the applicant to his home. They both went into the lounge room, where two naked men whom RH did not know were sitting and masturbating. The applicant removed RH’s clothes. He performed oral sex on RH, before making RH perform oral sex on him whilst the other two men watched. On this occasion the applicant ejaculated into RH’s mouth and the two other men stood up and ejaculated onto him. The applicant then got some towels and cleaned RH before he walked home.
Charges 5 and 6
On a further occasion the applicant took RH to a house, where another man was present. The applicant performed oral sex on RH in the other man’s presence, before compelling RH to perform oral sex on him and the other man. Both the applicant and the other man then ejaculated on RH.
Charges 7 and 8
There was also an occasion when the applicant took RH and his brother to a hotel. The two men who had earlier been present in the applicant’s lounge room were present. Upon leaving the hotel, RH’s brother sat in the front seat of a car with the two men, whilst RH sat in the back seat with the applicant. During the journey, the applicant undid his jeans, exposed his penis and also fondled RH’s penis. The applicant asked the driver to stop the car, and the other occupants got out leaving the applicant and RH alone in the back seat. The applicant picked RH up and put him onto his lap. He then took his pants off before forcing his penis into RH’s anus, causing RH to scream in pain. The applicant had one hand over RH’s mouth and another around his throat. After he had ejaculated into RH’s anus, the applicant let RH resume his seat.
Arrest
On 12 June 1977, police were called to the local railway sheds due to a break-in. RH and two of his brothers were amongst a group of boys enlisted by the applicant to commit the break-in and thefts. The applicant was arrested and interviewed by police in relation to that matter. Following his arrest, the applicant’s offending against RH ceased.
In the lead-up to 12 June 1977, however, the applicant had committed far more serious offences than those involving dishonesty. Thus, he was charged with grievous bodily harm and buggery with violence upon an 11-year-old boy and was remanded in custody. Ultimately, on 13 October 1977, the applicant was convicted at trial of buggery with violence and gross indecency, and he pleaded guilty to theft and attempted burglary. On 24 October 1977, the trial judge imposed a sentence of eight years’ imprisonment for buggery with violence; 12 months’ imprisonment for gross indecency; and six months’ imprisonment on each count of theft and attempted burglary. All sentences were ordered to be served concurrently, leading to a total effective sentence of eight years’ imprisonment, upon which the judge fixed a non-parole period of six years (‘the 1977 sentence’).[8]
[8]R v Webb (County Court of Victoria, Judge Forrest, 24 October 1977).
Ground 1: Totality
Under cover of ground 1, counsel for the applicant submitted that, whilst the sentencing judge acknowledged that the 1977 sentence engaged the principle of totality, the judge’s reasons do not disclose consideration of the ‘question’ said to be required by Mill.[9] Counsel contended that the reasons do not disclose consideration of what the likely head sentence would have been had the applicant been sentenced at the same time as the 1977 offences, describing this as ‘the Mill question’. As a result, counsel submitted, there was no consideration of the fact that the applicant had lost the opportunity for partial concurrency with the sentence imposed in 1977. Nor was there consideration as to whether the inability to impose orders as to concurrency required a shorter sentence, even if that would ostensibly fail to reflect the seriousness of the offending.
[9]Mill v The Queen (1988) 166 CLR 59, 66–7 (Wilson, Deane, Dawson, Toohey and Gaudron JJ) (‘Mill’).
Further, the applicant’s counsel acknowledged that in Sayer,[10] this Court held that application of the principle of totality does not require consideration of ‘the Mill question’ in circumstances such as the applicant’s, on the basis that Mill considerations only arose from the operation of State boundaries. Counsel submitted, however, that Sayer was wrongly decided.
[10]Sayer v The Queen [2018] VSCA 177 (Whelan and McLeish JJA) (‘Sayer’).
Turning to a consideration of the applicant’s submissions, it should be observed at the outset that the sentencing judge certainly intended to apply the principle of totality. Thus, in his sentencing remarks he said:
I have taken into account the principle of totality. I have applied this principle not only due to the number of offences before me, but also having regard to the fact that you served a lengthy sentence for similar offending around the time and subsequent to the offending before me.
It must also be observed that the circumstances in Mill called for the application of the totality principle in a particular set of circumstances. The High Court described the general nature of the totality principle as follows:[11]
The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57, as follows (omitting references):
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[’]; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.
See also Ruby, Sentencing, 3rd ed. (1987), pp. 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.
[11]Mill, 62–3.
The Court went on to observe that the application of the totality principle becomes complicated where an offender falls to be sentenced in different States for offending that is temporally closely connected:[12]
The application of the principle becomes more complicated where the offender commits a number of offences within a short space of time in more than one State. Upon the offender being apprehended and sentenced to a term of imprisonment in one State, the other State cannot proceed to deal with him in respect of an offence committed in that State until he is released from custody in the first State. That may involve a deferment of the processes of the criminal law in the second State for a period of years. That is what happened in the present case.
[12]Ibid 63–4 (emphasis added).
In Mill, the appellant had, in a period of six weeks in December 1979 and January 1980, committed three armed robberies, two in Victoria and one in Queensland. In September 1980 he was sentenced in respect of the Victorian offences to 10 years’ imprisonment with a non-parole period of eight years. Upon his release on parole for the Victorian offences, he was arrested and returned to Queensland, where he was sentenced to imprisonment for eight years, with a recommendation that he be considered for parole after three years, in recognition of the fact that he had already served eight years for the Victorian crimes. It was in that context that the High Court made the following observation — ‘the Mill question’ — upon which the applicant’s counsel seized:
In our opinion, the proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time.
Deferment of sentence in Mill flowed from the appellant’s commission of offences in different States, the effect of which was that the appellant could not be sentenced for all of his crimes on a single occasion. Unlike the situation in Mill, however, the deferment of sentence in this case flowed from the fact that the applicant was not apprehended for the 1977 offending against RH until well after he had served the 1977 sentence for the offending against another child, also committed in 1977.
There is no dispute that, in fixing sentence for the offending against RH, the sentencing judge was required to take into account the totality of the applicant’s offending in 1977 against RH and the other child victim, and to take into account the sentence imposed for the offences against that other child victim.
Nothing in Mill, however, required the sentencing judge to assay a precise arithmetical calculation or prediction of what the total effective sentence and non-parole period would have been had the applicant been sentenced at the same time for all of the offending in 1977 against RH and the other child.[13] Instead, the judge was required to fix appropriate individual sentences and orders for concurrency,[14] then stand back and consider whether the proposed total effective sentence (and non-parole period) achieved was ‘just and appropriate’, taking into account the totality of the applicant’s offending and the 1977 sentence. That, in effect, is what the judge did. Thus, the contention that he erred in the application of the principle of totality is without substance.
[13]Where such an exercise is undertaken, a question arises as to whether the predicted single total effective sentence is to be determined by reference to current sentencing practices or by reference to sentencing practices at the time of the offending (in this case, 1977). In oral argument, counsel for the applicant accepted that current sentencing practices would be applicable, but it is not necessary in the present case to resolve this issue.
[14]By virtue of s 6E of the Sentencing Act 1991, every term of imprisonment ‘imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term’.
But even were the exercise as simple as notionally aggregating the present sentence and the 1977 sentence — as the applicant’s counsel at more than one point appeared to submit — we could not conclude that a notional total effective sentence of 14 years and six months’ imprisonment, with a notional non-parole period of nine years and six months, infringed the principle of totality.
Hence, the 1977 sentence — eight years’ imprisonment for buggery with violence and gross indecency upon an 11-year-old — appears to be beyond any legitimate criticism. Furthermore, as we will explain,[15] the total effective sentence of six years and six months’ imprisonment imposed in this case — for multiple instances of indecent assault and the painful buggery of an eight or nine-year-old child, accompanied by circumstances of gross humiliation — is entirely justified.
[15]See [43] et seq below.
The applicant’s overall offending was of the utmost seriousness, and involved loathsome and degrading sexual misconduct perpetrated on two children of tender years. In neither case was there any ameliorating influence on sentence to be derived from a guilty plea. And taking into account such circumstances as do mitigate the applicant’s offending, we are completely unable to see that a notional total effective sentence of 14 years and six months’ imprisonment, with a notional non-parole period of nine years and six months, could properly be said to violate the principle of totality. Indeed, we consider that the moderate nature of the sentence imposed upon the applicant in the present case can only be adequately explained by a proper application of the principle.
The first ground is without substance.
Ground 2: Reduced moral culpability and general deterrence
In his sentencing remarks, the judge noted that the applicant had been in institutional care for long periods growing up, his father being ‘an alcoholic bully’ who was violent to his mother and siblings.
Between the ages of 10 and 13, when a ward of the State, the applicant was sent to Turana Boys’ Home and a Salvation Army-run boys’ home. Tragically, the applicant was sexually and physically abused at both institutions. At age 13 the applicant returned home, where he stayed until the age of 17. At age 17 he started getting into trouble for relatively minor things initially, followed by more serious offending and gaol terms. The judge remarked that, up until the age of 17 or so, ‘it is no exaggeration to describe [the applicant’s] childhood as extremely deprived and [he was] exposed to dysfunctional and violent behaviour’, experiencing ‘significant trauma whilst a ward of the State’.
The judge observed:
It also appears from the historical records and the more recent materials filed on your behalf that your personality and psychological structure was perhaps shaped or at least distorted by these experiences. As was recognised by the High Court in Bugmy those experiences,[16] none of which were of your making, all played a significant role in shaping your personality and responses. As I observed during the plea hearing, it is not a stretch to conclude that your subjective culpability for the offending before me could not be equated with that of a person who committed the same offences but had had the advantage of a normal, stable and regular home environment during her or his childhood years.
[16]Bugmy v The Queen (2013) 249 CLR 571 (citation as in original).
Material put before the judge on the plea indicated that in 1970 and 1971 the applicant attracted a diagnosis of ‘impulsive personality disorder’, and was said to be a ‘criminal psychopath’ with a ‘psychopathic personality’. In 1973 and 1974, the applicant was sent to Ararat Mental Hospital for six months and was in psychiatric care for a further nine months. In 1975, 1976 and 1977, the applicant was considered to be ‘borderline psychotic’ and to have a ‘grossly disturbed personality’. When in custody in 1975, the applicant engaged in self-harm, his purported motivation being to effect a sex change.
The applicant described some past psychotic episodes to a consultant psychologist, Simon Candlish, who assessed the applicant under the PCL-R (Psychopathy Checklist), scoring him in the high range. Mr Candlish stated that the applicant presents with ‘severe impairment in his personality functioning and problematic personality traits’ and meets the definition of Anti-Social Personality Disorder. It is likely that the applicant had Conduct Disorder as a child and is most accurately assessed as having Other Specified Personality Disorder (Mixed Personality Features — Antisocial and Borderline). The applicant also appears to meet the criteria for Paedophilic Disorder (Exclusive, male children) and Hebephilia.
Laura Scott, a clinical neuropsychologist, had also assessed the applicant. She assessed the applicant as experiencing severe depression and anxiety. According to Ms Scott, it is likely that the applicant sustained an acquired brain injury as a result of chronic exposure to alcohol and solvents during his 20s and 30s. A diagnosis of dementia is also a possibility but requires further testing for confirmation. While Ms Scott considered that the applicant’s cognitive impairment was unlikely to have had a relationship with the offending, there were a number of areas in which the applicant experiences either severe or mild impairment. The applicant’s cognitive limitations have an impact upon his daily life, including information-processing, impulsive behaviour and reduced self-regulation.
In his sentencing remarks, the judge discussed the psychological opinion in some detail. Although, based on the material, the judge considered it to be difficult to find a connection between the applicant’s personality and psychological functioning and the offending, he nonetheless took those matters into account when assessing the applicant’s moral culpability. He said:
As I observed during the plea hearing, in this case the connection between your personality and psychological functioning and your offending is present but difficult to define in a causal sense. I consider that these matters are nonetheless relevant to my overall assessment of your moral culpability. They are entwined with your personal circumstances and other aspects of mitigation such as the Bugmy principle to which I have already referred. I am satisfied they have mitigatory effect in a global analysis and assessment of moral culpability.
Counsel for the applicant in this Court submitted that the sentencing judge had found that the applicant’s moral culpability was reduced by the combined effects of his childhood deprivation and personality disorder. Principles to be derived from Bugmy,[17] Brown[18] and Verdins[19] were invoked. Counsel submitted that, although the judge had found that the applicant’s moral culpability was reduced by reason of his childhood deprivation and personality disorder, the judge’s sentencing remarks do not indicate that there was any moderation of general deterrence. It was necessary, counsel submitted, that the judge’s reasons expose whether general deterrence had been moderated or, if not, the reason why it was not. The absence of any reference to these considerations, counsel submitted, leads to the conclusion that the impact of the applicant’s reduced moral culpability was not considered in determining whether general deterrence should be moderated.
[17]Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).
[18]Brown v The Queen (2020) 62 VR 491 (‘Brown’).
[19]R v Verdins (2007) 16 VR 269 (‘Verdins’).
In our view, the contention that the judge erred by ‘failing to consider the impact of the applicant’s reduced moral culpability on the weight to be afforded to general deterrence’ cannot be upheld.
The judge made specific reference to the need for general deterrence in the following remarks:
I must impose a sentence, of course, that deters others from this abhorrent and very serious offending. The sentence I impose also denounces your conduct on behalf of the community. Your prospects, as I have assessed them — difficult as it is — and the matters in mitigation, to which I have referred, are also reflected in the sentence I now impose.
These remarks were made against the backdrop of the following submissions by the applicant’s counsel on the plea:
I do not submit that he has no moral culpability or that general deterrence is off the table. These ultimately come down to questions of weight.
Hence, counsel for the applicant on the plea did not suggest that Bugmy considerations eliminated general deterrence as a sentencing purpose. That was a proper position to adopt. As may be gleaned from Bugmy, an offender’s exposure to extreme violence and alcohol abuse in childhood may in some circumstances explain subsequent behaviour, such that the offender’s moral culpability for particular offending may be reduced. But an offender’s deprived background does not necessarily have the same mitigatory relevance for all of the purposes of punishment.[20] As counsel’s submissions on the plea acknowledged, depending on the circumstances of childhood deprivation and its effects in a given case upon an offender’s behaviour, general deterrence may still have an important role to play in the exercise of the sentencing discretion.
[20]See Bugmy, 595 [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
Moreover, as Verdins makes clear,[21] impaired mental functioning may reduce the moral culpability of offending conduct, as distinct from an offender’s legal responsibility. Where that is so, the offender’s impaired mental functioning affects the punishment that is just in all the circumstances. Whether general deterrence should be moderated or eliminated depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender.
[21]Verdins, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
In the present case, Mr Candlish considered that (among other conditions) the applicant met the diagnostic criteria for Anti-Social Personality Disorder. Such disorders are, depending on the circumstances, capable of enlivening Verdins considerations.[22] As the judge observed in the present case, however, it was difficult to draw a causal link between the applicant’s personality disorder and psychological functioning and the offending. Notwithstanding that was so, the judge — perhaps somewhat benevolently — regarded them as relevant to his ‘overall assessment’ of the applicant’s moral culpability, since they were ‘entwined’ with the applicant’s personal circumstances and other aspects of mitigation such as childhood deprivation. The judge therefore was ‘satisfied they have mitigatory effect in a global analysis and assessment of moral culpability’.
[22]Brown, 493 [6], 507–8 [61]–[63] (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA).
The foregoing demonstrates that the judge gave careful consideration to the claimed effects of the applicant’s blighted childhood and his impaired mental functioning. It is also clear that, despite their somewhat tenuous causal connection to the offending, the judge was prepared to reduce the applicant’s moral culpability for the offending because of them. Given that is so, it is plain that the judge must have considered the impact of the applicant’s childhood deprivation and impaired mental functioning on general deterrence as a sentencing factor. A principal purpose of determining whether childhood deprivation or impaired mental functioning reduces moral culpability is the capacity of such determinations to eliminate or moderate general deterrence as a consideration in sentencing. It would have been a somewhat pointless exercise for the judge to have made a finding as to the applicant’s reduced moral culpability were he not then to have moderated the weight to be afforded to general deterrence.
Ground 2 cannot be upheld.
Ground 3: Manifestly excessive individual sentences and orders for cumulation
Ground 3 is also without merit.
Individual sentences of 18 months’ imprisonment on charges 1, 2 and 7 — which involved the applicant fondling RH’s penis and RH masturbating the applicant — plainly were warranted in circumstances where there was no mitigation of sentence flowing from a plea of guilty. One month’s cumulation of the sentence in each case upon the base sentence can only be described as lenient.
Further, the sentence of two years’ imprisonment on charge 3 — fellating RH — is also fitting, given that there was no ‘discount’ to be had from a guilty plea. Three months’ cumulation of this sentence upon the base sentence is also very moderate.
Moreover, sentences of three years’ imprisonment on charges 4, 5 and 6 are entirely justified. The circumstances of charge 4 included the applicant ejaculating into RHs mouth, and the two other men ejaculating onto him. Charges 5 and 6 involved the applicant performing oral sex on RH in another man’s presence, before having RH perform oral sex on him and the other man, both then ejaculating on RH. Although the individual sentences represent 60 per cent of the available maximum, it is self-evident that the offending was extremely serious, meriting stern punishment, particularly given that the sentences were not to be ameliorated on account of guilty pleas. Once more, cumulation of six months of the individual sentences upon the base sentence is very moderate.
Finally, the sentence of four years and six months’ imprisonment imposed on charge 8 — for the painful buggery of an eight or nine-year-old child, culminating in ejaculation into the child’s anus — is beyond legitimate criticism.
Synthesising all relevant factors, we are far from persuaded that the total effective sentence produced by the orders for cumulation is manifestly excessive. Indeed, we regard the sentence as moderate. Moreover, we consider the non-parole period to be moderate (if not lenient). In our view, the moderate nature of the individual sentences; of the orders for cumulation (and the total effective sentence thereby produced); and of the non-parole period, can only be explained by the sentencing judge’s proper application of the principle of totality.
Extension of time
In support of the application for an extension of time, a Victoria Legal Aid (‘VLA’) solicitor who acts for the applicant affirmed an affidavit on 21 October 2021. He deposed as follows:
2. The applicant was sentenced to a term of imprisonment by His Honour Judge Johns on 15 April 2021 in the County Court at Melbourne.
3. On 28 April 2021, the applicant’s former solicitor advised the applicant that he did not consider that there was merit in an appeal. The applicant told his former solicitor that he wished to appeal regardless. The applicant’s former solicitor advised him how to seek a grant of legal assistance directly without the involvement of a solicitor.
4. Subsequently, the Grants and Quality Assurance team at VLA forwarded to the applicant a blank application for a grant of legal assistance.
5. On 24 May 2021, without the assistance of a solicitor, the applicant completed and sent by post to VLA an application for a grant of legal assistance to fund an appeal.
6. On 1 June 2021, that application was received by VLA.
7. On 25 August 2021, a decision was made to grant legal assistance for an appeal against sentence.
8. As the applicant had no solicitor acting for him, the matter was allocated to the Appeals and Strategic Litigation team at VLA. Normally, the Appeals and Strategic Litigation team is advised of new appeal cases allocated to that team by way of specific e-mail. However, that did not occur in respect of this matter.
9. On 27 September 2021, a letter, dated 25 August 2021, in which Grants and Quality Assurance advised that funding had been approved, came to the attention of the Appeals and Strategic Litigation team.
10. On 28 September 2021, I was allocated carriage of this matter.
11. On 29 September 2021, I had a conference with the applicant who gave me instructions.
12. On 1 October 2021, I briefed Public Defender, Michael Reardon, to draft the applicant’s written case.
13. On 19 October 2021, Michael Reardon provided me with a draft of the applicant’s written case to consider.
14. Upon receiving that written case, I sought to finalise preparation of all other materials required to lodge the application for leave to appeal against sentence ought [sic] of time, as expeditiously as possible.
15. The delay in filing the application for leave to appeal has not been the fault of the applicant.
It will be noticed that there is no explanation of why it took from 1 June to 25 August 2021 to determine that the applicant would be granted legal assistance; and no explanation was offered for the delay between 25 August and 27 September 2021, although paragraphs 8 and 9 of the affidavit suggest that an error in the usual administrative processes was the underlying reason for the latter delay. The lack of a clear explanation is unsatisfactory.
Furthermore, when these matters were raised at the outset of the hearing in this Court, no explanation or elaboration was offered from the Bar table. Once more, that is unsatisfactory.
As was made clear in Madafferi, the Court has a broad discretion whether to grant an extension of time, the exercise of the discretion being informed always by what the interests of justice require in the particular circumstances of the case.[23] In this case, the merits of the proposed appeal are so poor that it would be pointless to exercise the discretion in the applicant’s favour. That conclusion also renders unnecessary any further comment on the unsatisfactory nature of the material relied upon in support of the application for an extension of time.
[23]Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).
Conclusion
The application for an extension of time within which to file a notice of application for leave to appeal against sentence is refused.
- - -
2
9
0