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Supreme Court of Victoria - Court of Appeal |
Last Updated: 7 October 2016
COURT OF APPEAL
S APCR 2006 0416
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JUDGES:
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WHERE HELD:
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DATE OF HEARING:
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DATE OF JUDGMENT:
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MEDIUM NEUTRAL CITATION:
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DPP v Defrutos [2006] VSC 474
(Teague J)
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CRIMINAL LAW – Application to reinstate application for leave to appeal against sentence – Applicant convicted of attempted murder in 2006 and sentenced to 11 years’ imprisonment with non-parole period of 8 years – Application for leave to appeal against sentence dismissed by Acting Registrar of Criminal Appeals in 2007 due to failure to file a full statement of grounds of appeal by due date – Nine year delay in seeking reinstatement of application – Proposed grounds directed at decision of Adult Parole Board to refuse parole rather than decision of sentencing judge – Application for reinstatement refused.
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APPEARANCES:
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Counsel
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Solicitors
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No appearances
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WEINBERG JA
ELLIOTT AJA:
Introduction and summary
1 On 30 November 2006, the applicant was convicted of attempted murder and on 11 December 2006 he was sentenced to 11 years’ imprisonment with a non-parole period of 8 years. During 2007, his application for leave to appeal against sentence was dismissed by the Acting Registrar of Criminal Appeals on two occasions because he failed to file a full statement of the grounds of appeal by the due date.
2 On 13 July 2016, following a refusal by the Adult Parole Board (‘Board’) to grant him parole, the applicant applied to reinstate his application for leave to appeal against sentence. The applicant has represented himself. By agreement of the parties, the reinstatement application has been determined on the papers.
3 The grounds relied upon by the applicant in support of his reinstatement application are directed to the decision of the Board rather than the decision of the sentencing judge. For the reasons that follow, the application will be refused.
Factual and procedural background
4 The applicant and the victim, Anthony McCallum, played together in the same football team in the 1980s. They were reacquainted in early 2000 while drinking at the Flying Duck Hotel in Prahran. McCallum introduced the applicant to his partner, Caroline Mildenhall. The applicant knew where McCallum lived and that he sometimes walked through the park next to the hotel on his way home at night. While McCallum was overseas in late 2000, the applicant had a brief affair with Mildenhall. McCallum found out about the affair after he returned from overseas and he told the applicant that he did not want any further association with him. In the years that followed, there were incidents in which the applicant displayed his resentment towards McCallum and his continuing interest in Mildenhall.
5 On the night of 23 July 2004, the applicant armed himself with a handgun and waited for McCallum in the park. As McCallum walked through the park, the applicant approached him and shot him in the chest, narrowly missing his heart. As McCallum ran off, the applicant fired a second shot which missed McCallum. According to McCallum’s victim impact statement, he recovered well physically but had ongoing psychological problems.
6 At the plea hearing, the applicant instructed his counsel not to make any submissions in mitigation of sentence. In sentencing the applicant, the sentencing judge made the following observations:
You have chosen not to have matters addressed to me as to the detail of matters personal to you or otherwise on the plea. I know little more than that you are 49 years of age, that your parents and a brother are still alive, and that you have worked as a soft tissue therapist. You have 25 prior convictions, from five Magistrates’ Court appearances between 1981 and 1995. They were mainly drugs and deception offence convictions. None was for an offence of violence. As to heroin offences, you received a suspended prison sentence. As to the other offences, fines were imposed.This attempted murder was a serious instance of a serious crime. There is a need for denunciation, general deterrence, special deterrence and rehabilitation to be appropriately allowed for in imposing the sentence. I have reviewed many recent sentences imposed for attempted murder. Because the adverse consequences of your actions were not nearly as serious as in many other cases, your crime falls to be assessed close to the middle of the range. Given the necessary element of an intention to kill, the premeditated character of the ambushing, the use of a gun, and the absence of any indication of remorse, your crime still calls for a long prison sentence.[1]
7 The applicant applied for leave to appeal against conviction and sentence on 18 and 21 December 2006, respectively. Both applications were dismissed by the Acting Registrar on 27 April 2007 because the applicant failed to file a full statement of grounds when due on 19 April 2007. The applicant successfully applied to have both applications reinstated. The application for leave to appeal against conviction was ultimately dismissed by this Court on 9 April 2008.[2] An application for special leave to appeal to the High Court was made on 24 April 2013 and was refused on 14 August 2013.
8 The application for leave to appeal against sentence was again dismissed by the Acting Registrar on 10 July 2007 because the applicant failed to file a full statement of grounds by the extended deadline of 9 July 2007. An undated letter from Victoria Legal Aid (‘VLA’) to the applicant suggests that he consented to allowing the application for leave to appeal to stand as dismissed. The applicant denies that he consented. For present purposes, we are prepared to accept his denial.[3]
9 Taking into account 12 days of pre-sentence detention, the applicant became eligible for parole in November 2014. However, the Board has refused to grant him parole. In the absence of parole, the applicant will be released from prison when he completes his sentence in November 2017.
Grounds relied upon by the applicant
10 In order to succeed in his application of 13 July 2016 to reinstate the application for leave to appeal against sentence, the applicant must demonstrate that it is in the interests of justice to reinstate the application.[4] The factors relevant to a consideration of what the interests of justice require in the present case include whether the applicant has provided a satisfactory explanation for failing to file a full statement of grounds by 9 July 2007 and for his delay of nine years in applying for reinstatement, and the prospect of success should the application for leave to appeal be reinstated.[5]
11 The documents filed by the applicant in support of his reinstatement application include a revised application for leave to appeal against sentence dated 1 June 2016, a typed affidavit affirmed by him on 30 May 2016,[6] a written case dated 1 June 2016 and an addendum to the written case dated 3 October 2016.
12 The material filed by the applicant does not disclose any reason for his failure to file a full statement of grounds by 9 July 2007.[7] Also, the only explanation that the applicant has provided as to why he did not make an application for reinstatement in the intervening nine years was that, as an unrepresented layperson, he found the applicable legal processes ‘too overwhelming’. According to the applicant, the death of his father, his desire to care for his ill mother and the Board’s refusal to grant him parole prompted him to research those processes and to invoke them.
13 The revised application for leave to appeal against sentence sets out two grounds, namely, manifest excess and ‘substantial miscarriage of justice’. However, the applicant’s material does not explain why the sentence is said to be manifestly excessive. Instead, the material is directed to establishing the following propositions:
(a) The sentencing judge fixed a head sentence of 11 years and a non-parole period of 8 years based on a synthesis of all the relevant sentencing considerations and in the expectation that the applicant would be granted parole after 8 years if he conducted himself appropriately while in prison.
(b) By refusing the applicant parole, the Board:
(i) denied him procedural fairness, including by not giving effect to his legitimate expectation that he would be granted parole;
(ii) breached the right to a fair hearing in s 24(1) of the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’); and
(iii) acted arbitrarily and committed a jurisdictional error.
(c) The Board’s refusal to grant the applicant parole has ‘wrongly interfered’ with the sentencing judge’s synthesis of the relevant sentencing considerations, resulting in a breach of the doctrine of separation of powers and a substantial miscarriage of justice.
(d) In the light of the Board’s decision to refuse parole, a lesser sentence should now be imposed.
14 According to the applicant, he has been a model prisoner and has undertaken all relevant courses available to him, other than the ‘Violence Intervention Program’. He has asserted that he was not permitted to undertake that program because he refused to comply with a prerequisite for that program, namely, admission of guilt. He claims that it would have been dishonest for him to admit committing a crime which he did not commit.
15 It is evident that the applicant’s case is not that the sentence was manifestly excessive or otherwise erroneous at the time it was imposed. This is not surprising, as the sentence was well within the range of sentences available to the sentencing judge in the proper exercise of the sentencing discretion. Although sentencing snapshots published by the Sentencing Advisory Council provide limited assistance, we note that Snapshot No 21 published by that Council in January 2007 stated that in the period 2001–2006, the median head sentence for attempted murder was 11 years and the median non-parole period was 8 years.[8]
16 The applicant’s contention that the sentence became manifestly excessive or otherwise erroneous as a result of the Board refusing to grant him parole at the expiration of the non-parole period does not provide a proper basis for impugning the sentence and must be rejected. A sentencing judge must exercise the sentencing discretion on the basis of the evidence at the time of sentence and cannot take into consideration possible future executive action, including any action by the Board, which may affect the length of time a prisoner remains in custody.[9] Further, neither the sentencing court nor this Court is able to amend a sentence in order to take into account post-sentence executive action affecting a prisoner.[10]
17 For completeness, we note that, pursuant to s 69(2) of the Corrections Act 1986, the Board is not bound by the rules of natural justice and, pursuant to reg 5(a) of the Charter of Human Rights and Responsibilities (Public Authorities) Regulations 2013, the Board is not a public authority for the purposes of the Charter. In any event, s 24(1) of the Charter deals with the hearing of criminal charges and civil proceedings by a court or tribunal. We also note that insofar as the doctrine of separation of powers applies to the three arms of government of this State, it has not been demonstrated that the doctrine has any application in the present case. Further, there is nothing in the applicant’s material that shows that the Board acted arbitrarily or committed a jurisdictional error.
18 As the applicant has failed to establish any error on the part of the sentencing judge, there is no prospect of an appeal against sentence succeeding if the reinstatement application is granted and the applicant is given leave to appeal.
Application for leave to adduce fresh evidence
19 On 19 September 2016, the applicant filed an application for leave to adduce fresh evidence and an affidavit sworn by him on that day in support of that application.
20 The ‘fresh evidence’ upon which the applicant seeks to rely is the decision of the Board to refuse him parole. This Court will not receive evidence of events occurring after sentence on an application for leave to appeal against sentence except where, in an appropriate case, those events throw a different light on the circumstances which existed at the time of sentence.[11] Evidence of the Board’s refusal to grant parole does not throw a different light on the circumstances which existed at the time of sentence and is thus inadmissible. Even if that evidence were admissible, for the reasons already discussed, it does not provide a proper legal basis for impugning the sentence.
Conclusion
21 For the above reasons, the application for leave to adduce fresh evidence and the reinstatement application will be refused.
[1] DPP v Defrutos [2006] VSC 474 [6]–[7].
[2] R v Defrutos [2008] VSCA 55.
[3] A lawyer from VLA sought leave to file an affidavit on the issue of the applicant’s consent. We refused leave and have not taken into account the contents of the affidavit.
[4] See Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601, 613 [30] (‘Kentwell’) in the context of an application for an extension of time in which to appeal against sentence.
[5] Kentwell [2014] HCA 37; (2014) 252 CLR 601, 613–4 [30]–[33], 619 [44]; Derwish v The Queen [2016] VSCA 72 [55]–[57].
[6] The applicant also affirmed a similar handwritten affidavit on 4 July 2016.
[7] The failure to file a full statement of grounds by the original deadline of 19 April 2007 was due to oversight on the part of lawyers at VLA.
[8] Sentencing Advisory Council, Snapshot No 21 ‘Sentencing Trends for Attempted Murder in the Higher Courts of Victoria, 2001–02 to 2005–06’ (2007) 3.
[9] Sentencing Act 1991 s 5(2AA)(a).
[10] Crump v New South Wales [2012] HCA 20; (2012) 247 CLR 1, 16–17 [28], 26 [58]; Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308, 343 [158].
[11] R v WEF [1998] 2 VR 385, 388–9; R v Nguyen [2006] VSCA 184 [36]–[37]; Driscoll v The Queen [2013] VSCA 366 [14].
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URL: http://www.austlii.edu.au/au/cases/vic/VSCA/2016/241.html