Will v The Queen
[2020] ACTCA 42
•24 August 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Will v The Queen |
Citation: | [2020] ACTCA 42 |
Hearing Date: | 17 June 2020 |
DecisionDate: | 24 August 2020 |
Before: | Burns J |
Decision: | See [37] |
Catchwords: | APPEAL – APPLICATION FOR LEAVE TO APPEAL –Application for leave to appeal out of time – consideration of the reasons for the applicant’s delay in seeking to appeal – whether the respondent will suffer prejudice in any such appeal based on delay – consideration of the prospects of success in the proposed appeal |
Legislation Cited: | Court Procedures Rules 2006 (ACT) rr 5506, 5510 Crimes (Sentencing) Act 2005 (ACT) ss 35A, 36, 37 Evidence Act 2011 (ACT) s 128 |
Cases Cited: | Merrilees v The Queen [2014] ACTCA 10 Parker v The Queen [2002] FCAFC 133 R v Cartwright (1989) 17 NSWLR 243 R v Kevenaar & Ors [2004] NSWCCA 210; 148 A Crim R 155 R v Kohunui [2009] VSCA 31 R v Will [2017] ACTSC 356; 13 ACTLR 81 Urlich v The Queen [2019] ACTCA 30 |
Parties: | David Allen Will (Applicant) The Queen (Respondent) |
Representation: | Counsel K Ginges (Applicant) K Weston-Scheuber (Respondent) |
| Solicitors McKenna Taylor (Applicant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 14 of 2019 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Mossop J Date of Decision: 24 May 2018 Case Title: R v Will Citation: [2018] ACTSC 154 |
BURNS J:
The applicant is currently serving a term of 10 years and 10 months’ imprisonment, commencing on 24 May 2018 and expiring on 23 March 2029 for an offence of aiding, abetting, counselling or procuring an offence of aggravated robbery which occurred on 10 May 2004. That sentence was imposed by Mossop J on
24 May 2018: [2018] ACTSC 154. The applicant now seeks leave to appeal out of time against the sentence imposed by Mossop J.
Background
The applicant was first charged in the ACT Magistrates Court on 12 December 2014 and was committed for trial on 21 April 2015. His trial was listed to commence on 30 May 2016, but that date was vacated. The applicant then made an application for a permanent stay of the prosecution which was refused by Refshauge J on 29 November 2017: [2017] ACTSC 356; 13 ACTLR 81. The applicant was then scheduled to stand trial on 3 April 2018, but on 26 March 2018 he indicated that he would plead guilty. The trial date was vacated, and on 16 April 2018 he was arraigned and pleaded guilty to the charge for which he was sentenced to imprisonment by Mossop J on 24 May 2018.
On 27 March 2019, the applicant lodged an application under
r 5506 of the Court Procedures Rules 2006 (ACT) (the CPR) for leave to appeal out of time against the conviction by Mossop J and the refusal of the stay application by Refshauge J. In the alternative, the applicant applied for leave to appeal out of time against the sentence imposed by Mossop J (the decisions). This application was accompanied by an affidavit in support and a draft notice of appeal as required by
r 5506(3)(b). The draft notice of appeal stated that the applicant was appealing from the dismissal of the stay application and from the conviction imposed by Mossop J, and, to the extent necessary the appellant sought leave to traverse the plea of guilty entered on 26 April 2018. In the alternative, he appealed against the severity of the sentence imposed by Mossop J. An application for leave to appeal out of time must be made to the registrar in the first instance: r 5506(1) of the CPR. The ACT Director of Public Prosecutions (DPP) filed a response opposing the application for leave to appeal out of time, supported by an affidavit.
In compliance with r 5510(1) of the CPR, on 2 May 2019 the registrar granted the applicant leave to appeal the decisions out of time and communicated those orders to the applicant and the DPP. Based on the orders made by the registrar, on 3 May 2019 the applicant filed a notice of appeal in similar form to the draft notice of appeal.
Where the registrar grants leave to appeal out of time, the DPP may apply to this Court for an order that the application for leave to appeal be refused: r 5510(2) of the CPR. On or about 15 May 2019, the DPP lodged an application under r 5510(2) of the CPR (the DPP’s application). For reasons which are not apparent on the Court’s record, there was a significant delay in listing the DPP’s application for hearing.
On 4 February 2020, the applicant indicated that he was withdrawing his application for leave to appeal out of time against conviction but maintained his application for leave to appeal from the sentence imposed by Mossop J. This would logically suggest that the applicant had also abandoned any application for leave to appeal from the decision of Refshauge J refusing the stay application. If there were any possible doubt about that matter, it was dispelled on 10 February 2020 when the applicant lodged what purported to be a further amended notice of appeal. As the application for leave to appeal had not yet been resolved, the document should have been a draft notice of appeal. In any event, the further amended notice of appeal clearly indicated that the applicant was seeking to appeal only the severity of the sentence imposed by
Mossop J. The proposed grounds of the appeal were expressed as:
(a)not applying a sentencing discount for the applicant’s assistance to the administration of justice or to law enforcement authorities in accordance with ss 35A, 36 or 37 of the Crimes (Sentencing) Act 2005 (ACT);
(b)imposing a sentence that is manifestly excessive; and
(c)imposing a sentence (including the non-parole period) that failed (or failed adequately) to reflect his Honour’s findings in respect of the appellant’s subjective case.
Evidence on the application
The applicant relied upon an affidavit affirmed by Thomas Xavier Taylor on
27 March 2019. Mr Taylor affirmed that he was instructed by the applicant to advise him in respect of appealing both sentence and conviction on 24 September 2018. On 28 September 2018, he wrote to the ACT Supreme Court Criminal Registry seeking access to all court files relevant to advising the applicant. Between 5 October 2018 and 25 February 2019, he inspected a number of Supreme Court files relating to the prosecution of the applicant, and also files relating to the prosecution of two
co-offenders. This included making applications to the ACT Supreme Court to inspect and take copies of documents filed and subpoenaed documents on court files.
Mr Taylor stated that on 23 March 2018 the applicant attended Queanbeyan District Hospital and was transferred to the Canberra Hospital. He was admitted to the Intensive Care Unit with septic shock due to acute diverticulitis. He was discharged on 29 March 2018.
On 24 May 2018, the applicant was admitted to the Alexander Maconochie Centre (AMC) and was subject to a health assessment upon induction. On 2 June 2018, the applicant presented to the Hume Health Centre with issues with his legs. On
4 June 2018, he again presented to the Hume Health Centre with severe gout in his right foot and was unable to mobilise without crutches. On 9 July 2018, the applicant attended the Canberra Hospital Department of Radiology for an examination of his right foot. On 16 July 2018, the applicant presented to the Hume Health Centre with gout and difficulty walking. On 18 July 2018, the applicant was admitted to the
Emergency Department at the Canberra Hospital with left knee pain, following a
two week history of increasing pain. On 19 July 2018, he was again admitted to the Emergency Department at the Canberra Hospital with left knee pain.
On 14 August 2018, the applicant was admitted to the Emergency Department at the Canberra Hospital with left knee pain and was not discharged until 24 August 2018.
On 2 September 2018, he presented to the Hume Health Centre with severe gout pain. On 11 September 2018, the applicant presented to the Hume Health Centre due to experiencing dizzy spells and shaking. On 2 November 2018, he presented to the Hume Health Centre with chronic pain in his right hip, lower back and right leg.
On 13 November 2018, the applicant presented to the Hume Health Centre with gout.
Mr Taylor stated that he was instructed by the applicant that since being incarcerated at the AMC he had experienced issues with availability and correct dosage of medication.
The applicant tendered a report dated 5 June 2020 from Associate Professor Tuly Rosenfeld, a consultant geriatrician and physician practising in Sydney.
Assoc Prof Rosenfeld holds appointments as an Adjunct Associate Professor at the University of Notre Dame in Sydney and as a Conjoint Associate Professor at the University of New South Wales. Assoc Prof Rosenfeld has practised as a specialist geriatrician since 1985. Assoc Prof Rosenfeld was provided with a copy of Mossop J’s sentencing remarks, documents from the Canberra Hospital and also a letter from
Dr Patrick Leerdam dated 8 May 2018. Dr Leerdam was the applicant’s general practitioner before he was incarcerated. In his report, Assoc Prof Rosenfeld stated:
10.1.1. Mr Will is a 64 year old man with a number of significant medical conditions that have resulted in the progressive reduction in his physical function, with reduced mobility, increased risk of falling, chronic and recurrent episodes of severe pain associated with arthritis and severe gout.
10.1.2. During the year 2018 Mr Will suffered from a number of episodes of acute worsening in his illness, with systemic symptoms and pain associated with infection and inflammation in the joints. In March 2018 and then again in August 2018 Mr Will was hospitalised with acute illness that rendered him systemically unwell.
10.1.3. In the intervening periods, including the time of his incarceration and the period of time when he would otherwise have been able to appeal his sentencing, he remained unwell.
10.1.4. Mr Will would have been likely to have be (sic) too ill and unable to deal with and properly consider and act upon the options that he may have been (sic) available to him specifically in regard to the option that he may have had to appeal his sentence.
Assoc Prof Rosenfeld stated that the medical conditions from which the applicant suffered in 2018 included poorly controlled diabetes. Assoc Prof Rosenfeld also noted that the applicant had previously suffered a number of strokes and was very likely suffering from the neurological sequelae and, more particularly, cognitive impairment resulting from vascular brain disease. The applicant also had significant risk factors for recurrent stroke, including diabetes, reduced mobility, high cholesterol, smoking and the need for cortisone treatment for arthritis and gout. This made it likely that progressive vascular brain disease and episodes of stroke will occur. On the balance of probabilities, taking into consideration the applicant’s previous strokes and the likelihood of progressive cerebrovascular disease, alcohol use and other risk factors, Assoc Prof Rosenfeld stated that the applicant is likely to have a degree of cognitive impairment that will progress to dementia if he survives the significantly increased risk of recurrent stroke.
Assoc Prof Rosenfeld stated that during 2018 the applicant was likely to be suffering from the effects of progressive brain disease, worsening for a period of years from the time of his strokes and aggravated by his use of alcohol, depression and psychological difficulties and also the effects of recurrent and continuing episodes of severe systemic illness that led to at least two significant periods of illness necessitating hospital care. It was Assoc Prof Rosenfeld’s view that the applicant would have been unable to undertake the planning, take the initiative steps, properly consider his legal options and alternatives, and properly instruct his legal representatives in order to deal with the legal processes involved in appealing his sentences in 2018.
The sentence proceedings
The transcript of the sentence proceedings before Mossop J on 24 May 2018 reveals that counsel then appearing on behalf of the applicant made reference to the fact that the applicant gave evidence to the Australian Crime Commission (ACC) in 2010 which implicated him in the offence for which he was sentenced. Counsel also referred to the applicant having given evidence at the trial of his co-offender. The applicant’s counsel went on to submit: “[y]our Honour knows and it’s a trite point to make that when people give evidence against others, time in prison is more difficult because there’s issues of protection and all that and that will naturally result in time being harder for Mr Will”. Later, the following exchange took place between counsel and Mossop J:
Counsel: Your Honour, as I said, before, he’s given evidence, now obviously it wasn’t as part of an undertaking to give evidence but the fact is he’s given against someone who was still in the AMC and that is an - - -
His Honour: the difficulty – that simply results from the compulsion, doesn’t it? Having told under threat of criminal penalty he had to answer the questions of the Crime Commission. He was then given a subpoena to appear and take the oath and once he was asked questions he was obliged to answer them.
Counsel: Or be in contempt, yes. But the fact remains that he has given evidence and there are consequences that may befall him…
The prosecutor filed written submissions to which I have not had access. The transcript of the sentence hearing indicates that the prosecutor referred to the fact that the applicant “was issued a certificate” when he gave evidence at the trial of his
co-offender, so that his evidence could not later be used against him. I take this to be a reference to a certificate under s 128 of the Evidence Act 2011 (ACT)
(the Evidence Act). There does not appear to have been any direct submission by counsel for the appellant or the Crown that the appellant may be entitled to a discount on sentence based on his assistance to the authorities or giving evidence at the trial of his co-offender.
The sentence decision
The sentence hearing concluded at shortly after 10:00 am on 24 May 2018. His Honour then stood the matter down until 4:00 pm to pass sentence. At that time, his Honour passed the sentence of 10 years and 10 months’ imprisonment, giving reasons orally. His Honour set out the facts of the offence and referred to the Victim Impact Statement prepared by a person who had been shot by one of the applicant’s co-offenders during the commission of the crime. His Honour also referred to the applicant’s subjective circumstances and his criminal history. His Honour considered the effect of the applicant’s plea of guilty and indicated that he would allow a reduction of approximately 10 per cent on the otherwise appropriate sentence because of the applicant’s plea of guilty. His Honour also referred to the sentences that had been imposed on the applicant’s co-offenders. In setting out his reasons for arriving at the sentence which he imposed, his Honour notes that the applicant gave evidence at the ACC and at the trial of his co-offender. However, his Honour makes no further mention of this fact.
The relevant law
It was common ground that the present application comes before me as a hearing
de novo: Merrilees v The Queen [2014] ACTCA 10 (Merrilees) [19] to [22]. In Merrilees, Refshauge J cited with approval the relevant principles governing an application such as the present set out in Parker v The Queen [2002] FCAFC 133 (Parker) at [6]:
1. applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an “acceptable explanation for the delay”; it must be “fair and equitable in the circumstances” to extend time;
2. action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;
3. any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
4. however, the mere absence of prejudice is not enough to justify the grant of an extension; and
5. the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
In Parker, the Court concluded (at [17], [19]):
What the Court will look for, above all else, in an application to extend the time within which to file a notice of appeal against a conviction which has led to a term of imprisonment, is satisfaction that there has not been, and will not be, a miscarriage of justice if leave is refused...
…
There will always be an onus on the applicant to explain the reasons for the delay – and the question of prejudice to the Crown cannot be overlooked. However, these and like matters cannot prevail if the Court is of the opinion that there is a reasonable probability that there might be a miscarriage of justice if leave is not granted.
The applicant’s submissions
The applicant submitted that his ill-health at the time of and following sentencing adequately explained the delay in seeking to appeal the sentence. The applicant also referred to the need for his now solicitors to consider whether there were grounds to challenge his convictions (albeit that it was based on a plea of guilty) based upon a challenge to the decision of Refshauge J to refuse the application for a permanent stay of the proceeding, which in turn was based upon the decision of the High Court in Strickland(A Pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53. The applicant submitted there had been a delay in his new solicitors gaining access to the relevant court files.
The applicant submitted that any application to appeal the severity of sentence must have been secondary to any appeal against conviction, such that it would not have been reasonable to expect the applicant to file an application to appeal against sentence while an appeal against conviction was being actively considered.
The applicant submitted that there would be no prejudice to the respondent if leave were granted.
In R v Ngata [2015] ACTSC 356 (Ngata), Refshauge J said, regarding the principles relevant to giving a discount on sentence for assistance to the authorities, at [57]:
(1) An appropriate reward for providing such assistance should be given to encourage the assistance to be provided.
(2) The motive of the offender providing the assistance is irrelevant.
(3) Full and frank cooperation is what is required and which should be encouraged.
(4) The extent of the discount depends on the willingness with which the disclosure is made.
(5) No discount should be given if the disclosure is tailored to give only what is already known.
(6) A substantial discount will not be given unless full disclosure of all that the offender knows is given.
(7) Greater leniency may be given where the offender shows genuine remorse and contrition, but that is a function of ordinary sentencing principles and is not required for this discount.
(8) The discount should be given for genuine cooperation whether or not the disclosure turns out to be actually effective in assisting the authorities.
(9) The information disclosed must be true. No discount, of course, is to be given for false information.
(10)The discount is not lost if the authorities ultimately do not act on the information.
(11)That a jury might or does reject the evidence of an offender who has assisted authorities does not deny the offender a discount.
(12)Part of the discount is offered to compensate an offender who makes a disclosure for the risk which he or she may face within a prison environment following the disclosure.
The applicant submitted that it is not a pre-condition to the giving of such a discount that the disclosure be voluntary: R v Kevenaar & Ors [2004] NSWCCA 210; 148 A Crim R 155.
It was further submitted that the evidence given by the applicant before the ACC and at the trial of his co-offender was significant and truthful. Reference was made to the decision in Urlich v The Queen [2019] ACTCA 30 where it was held that a failure by a sentencing judge to indicate the amount of a discount under ss 35A or 36 of the
Crimes (Sentencing) Act 2005(ACT) amounted to a sentencing error.
In sentencing the appellant, Mossop J opined that the applicant’s culpability was greater than that of his co-offender even though they performed the physical acts. On that basis, Mossop J chose as his starting point the sentence of 12 years’ imprisonment that had been imposed on the co-offender Mr Melkie. The applicant submits this was an error as:
(a) Melkie and Munro were sentenced as persons principally culpable for the offence, as persons not only involved in the planning of the offence but also in carrying it out;
(b) the applicant was sentenced on facts different to those on which Melkie was sentenced; and
(c) the applicant, unlike his co-offenders, did not know that the co-offender was armed or that firearms would be used or discharged.
The respondent’s submissions
The respondent submitted that the applicant’s delay in seeking to appeal his sentence has not been adequately explained. It submitted that any investigations of the applicant’s prospects of appealing the conviction and the refusal of the stay application by Refshauge J was irrelevant to the proposed sentence appeal. It further submitted that there has been “no meaningful explanation for the applicant’s delay in appealing against his sentence”.
With regard to the report from Assoc Prof Rosenfeld, the respondent submitted:
(a)Assoc Prof Rosenfeld has never actually examined the applicant;
(b)Assoc Prof Rosenfeld does not explain how the applicant was able to provide instructions to his lawyers on sentence despite being ill at the time;
(c)Assoc Prof Rosenfeld does not explain how despite having been hospitalised in August 2018, the applicant was able to give his new solicitors instructions in September 2018 despite having been hospitalised in August 2018;
(d)Assoc Prof Rosenfeld does not demonstrate any appreciation of what would have been involved in the applicant providing instructions to initiate an appeal, nor does he indicate how the applicant’s illness would have prevented him doing so;
(e)Assoc Prof Rosenfeld “does not delve into the specifics of the applicant’s medical conditions…so as to explain why his symptoms would make him ‘unable to deal with and properly consider and act upon the options…available to him’”; and
(f)with regard to the applicant’s mental health, Assoc Prof Rosenfeld’s report is speculative.
Turning to the merits of the proposed appeal, the respondent submitted:
(a)the failure of Mossop J to apply a discount in sentencing the applicant based on his giving evidence before the ACC and in the trial of his co-offender Munro was explicable by reason of the applicant giving that evidence under compulsion;
(b)no application for a discount was made by the applicant’s then counsel; and
(c)a sentence discount should only be given for “genuine cooperation”, not evidence given under compulsion and with the benefit of a certificate under s 128 of the Evidence Act. Once the applicant was required to attend the trial of his co-offender, he was obliged by law to give truthful evidence and could have been dealt with for perjury if he gave untruthful evidence or contempt if he refused to give evidence.
The respondent submitted that the applicant’s “manifest excess” submissions seemed to be more about parity with the sentence imposed on the co-offender Mr Melkie. It submitted that simply because the applicant was dealt with as an aider and abetter, he was not entitled to a lesser sentence than his co-offender. The applicant was the instigator of the offence, which could not have occurred without him.
The respondent submitted that the sentence could not be considered to be manifestly excessive.
Consideration
I do not regard Assoc Prof Rosenfeld’s evidence that the applicant is probably suffering cognitive impairment due to vascular disease as speculative. The opinion is based upon a review of medical records which include a history of strokes. On the whole of the evidence, I accept that during the period post-sentencing the applicant suffered from multiple medical conditions which on the balance of probabilities reduced his ability to consider an appeal, make a decision to appeal and to act upon that decision. In addition, it was not unreasonable for the applicant’s newly instructed solicitors to consider the prospects of an appeal against conviction on the basis that it may be arguable that the decision to refuse the stay of proceedings was erroneous. The fact that the proposed appeals from the imposition of the conviction and the refusal of the stay were ultimately abandoned does not result in a retrospective determination that the appeals were unreasonable ab initio.
As the proposed appeal is now confined to sentence, and the respondent will suffer no prejudice in any such appeal based on delay, I do not regard the applicant’s delay in commencing the proposed appeal as fatal to his application.
In my opinion, the applicant has reasonable prospects of success in the proposed appeal on the ground that no discount on sentence was given for his assistance to the authorities by giving evidence at the ACC and at the trial of his co-offender. On a
“first principles” analysis, the benefit to the authorities and the community is the same whether an offender gives evidence voluntarily or under compulsion. Indeed, it may be argued that once an offender is before the court or other body taking evidence, their evidence is inevitably taken under compulsion. It is also naive to suggest that simply because a person is compelled to give evidence before a court, or other official body, they will give honest and full evidence. Even if an offender does not willingly give full and honest evidence, the community still benefits from the fact that full and honest evidence is given. The giving of a sentencing discount to an offender who only gives evidence under compulsion will nevertheless act as an incentive to others to give full and honest evidence.
The proposition advanced by the respondent that an offender is only entitled to a sentencing discount for assistance voluntarily provided to the authorities is inconsistent with the statement of principle expressed by Refshauge J in Ngata: see [22] above. The proposition advanced by Refshauge J, that the motive for the offender providing the assistance is irrelevant to whether the offender is entitled to a discount (as opposed to the size of the discount) is supported by numerous authorities: see R v Nguyen (1989) 50 SASR 361 at 362-364 per King CJ; R v Cartwright (1989) 17 NSWLR 243 at 252; R v El-Sayed [2003] NSWCCA 232; 57 NSWLR 659 at [31]; R v Duncan [1998] 3 VR 208 at 214-215; R v Kohunui [2009] VSCA 31.
I am satisfied that there is a substantial argument available to the applicant that there has been a miscarriage of justice by the failure of the sentencing judge to allow a discount on sentence due to the applicant’s assistance to authorities.
As I propose granting the applicant leave to appeal from the sentence imposed by Mossop J, I will grant leave for him to prosecute that appeal on the presently formulated grounds, albeit that the manifest excess ground really appears to be a parity argument and the remaining ground appears to be a particular of a manifest excess ground.
Orders
The applicant is given leave to appeal out of time from the sentence imposed by Mossop J on 24 May 2018. The draft notice of appeal lodged 10 February 2020 is taken to be the notice of appeal.
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
10
3