Rehal v The Queen [2015] VSCA 81

CRIMINAL LAW - Application for extension of time to file notice of appeal against sentence - Delay of 20 months - Whether probability of demonstrating sentence manifestly excessive - Applicant seeking to rely on material available, but not relied on, on plea - Whether likely miscarriage of justice by reason of omission of applicant's legal representatives to rely on material - Application refused.

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 I will ask Justice Kaye to deliver the first judgment.

2 On 8 May 2013, the applicant pleaded guilty to one charge of intentionally causing serious injury to his wife, Ghazala Rehal, contrary to s 16 of the Crimes Act 1958. On 24 May 2013, he was sentenced to five years' imprisonment, with a minimum non-parole period of three years and four months. The judge made a declaration, pursuant to s 18 of the Sentencing Act 1991, that there had been 379 days presentence detention.

3 By an application made to this Court dated 10 February 2015, the applicant now applies for an extension of time within which to file and serve a notice of application for leave to appeal against his sentence.

4 The background facts to the case may be summarised briefly. The applicant, who is 59 years of age, came to Australia in approximately 1980. In October 1998, he married his wife, Ghazala, in Pakistan, and they returned to Australia. There were three children of the marriage, two sons, and a daughter, who were, at the time of the sentence, aged 12 years, 11 years and 8 years respectively.

5 The offending occurred on 10 May 2012. The applicant and his wife and children were then living in a house in Shepparton. There had already been some previous difficulties in the marriage, resulting in Ghazala obtaining two intervention orders against the applicant. Those orders were removed, and, in December 2011, the applicant returned to living with her and the children.

6 On 10 May, the applicant had a disagreement with Ghazala concerning family finances. During the day, the applicant drank a number of beers and some rum. He denigrated his wife to his elder son, and accused her of infidelity. Ghazala overhead that conversation. As a result, a confrontation developed, in the course of which

Ghazala pushed the applicant in the face with her open hand. The applicant responded by hitting Ghazala in the face and shoulder with an open hand. He then grabbed her in a bear hug and commenced punching her to the head. When the second son came into the room and screamed at the applicant, he said that he was going to get a knife, and he declared to his wife 'I am going to kill you'.

7 The applicant went to the kitchen and selected a knife that he had recently sharpened. In the meantime, his wife escaped to the bathroom, which she locked. In the presence of two of his children, the applicant broke down the bathroom door, and started hitting his wife in the head and face with the knife. He dragged her to the kitchen, where he continued to assault her with the knife. The two older children, Maaz and Mussad, unsuccessfully tried to help their mother. The applicant then dragged Ghazala to the dining room and the sitting room, in the course of which he continued to assault her. At one stage he tripped over a sofa, as a result of which Ghazala was able to flee to the safety of the home of a neighbour. The police were called, and the applicant was arrested. Ghazala was conveyed by ambulance to the Goulburn Valley Hospital, and then by helicopter to the Alfred Hospital in Melbourne, where she underwent surgery to repair a severe facial injury inflicted on her by the knife.

8 Ghazala's injuries included a facial laceration from the forehead to the nasal labia fold that was approximately seven centimetres long and it was jagged. The laceration came close to the inner corner of the right eye. There was also a lateral temporal laceration, a two centimetre deep stab wound to the back above the left shoulder blade, bruises on her face and body, cuts on the top of her head and on her left ear, and a small cut to her right hip.

9 At some stage after the neighbour had telephoned the police, the applicant also rang triple 0 to advise the police that his wife had attacked him with a knife and he defended himself. The police requested to speak to the applicant's eldest son Maaz. Before Maaz spoke on the telephone, the applicant told him to tell the police that his mother had had the knife first.

10 The applicant was arrested by the police. He was interviewed on the morning of Friday 11 May 2012. In the course of the interview, he selectively gave 'no comment' answers, but he denied threatening to kill Ghazala and he denied stabbing her. He stated 'I done nothing wrong, anything wrong, only protect the knife, to protect myself on her stabbing'.

11 On 11 May 2012, the forensic medical officer, Dr John Guymer, examined the applicant for injuries. As a result of that examination, Dr Guymer noted a number of minor injuries, comprising three shallow grazes on the neck, two pale bruises on the left upper chest, and minor cuts on the right hand, right wrist and left hand.

12 The principles, governing an application for extension of time within which to bring an appeal, are well established. They were conveniently compiled by Gowans J in delivering the unreported judgment of the Full Court in R v Darby[1] in 1975 in the following terms:

(1) The prescription by the statute of the time limit for giving notice is intended to secure finality and compliance as intended to be required in the ordinary case;

(2) The extension of the time is a matter for the discretion of the court, and the applicant must put material and considerations before the court which will persuade it to exercise its discretion in favour of an extension;

(3) Rigid restrictions cannot be imposed on the exercise of discretion but in general the court will require special and substantial reasons for extending the time;

(4) The longer the time which elapses since the expiration of the statutory period and the more the changes that have taken place in the meantime, the more exceptional will the circumstances put before the court have to be;

(5) It is the practice of the court not to grant any considerable extension of time unless it is satisfied that there are such merits in the proposed appeal that it would probably succeed;

(6) A reasonably satisfactory account of the failure to comply with the statutory requirement needs to be forthcoming.[2]

13 In Jopar v The Queen,[3] Priest JA emphasised the evaluative nature of the task of the court, in balancing the factors to which Gowans J referred in R v Darby. His Honour stated:

Where the merits of the proposed appeal are very poor, even a satisfactory explanation for the delay might not justify an extension. On the other hand, where the merits of the putative appeal are very good, but the explanation for the delay is poor, the Court may incline towards granting an extension. The discretion reposed in the Court must be exercised according to the individual facts of each case.[4]

14 In similar terms, Redlich JA stated in Bowling v The Queen:[5]

The longer the time which has elapsed since the expiration of the prescribed period, the more special the circumstances will have to be. Where there is a considerable lapse of time, the practice of the Court is not to grant the extension unless the Court is satisfied that there are such merits in the proposed appeal that it would probably succeed. These considerations have been repeated by this Court on a number of occasions.

15 Bearing those principles in mind, the starting point is the period of delay. That period, of almost 20 months, is particularly lengthy. The applicant, in his affidavit, has sought to explain the delay by stating that after he was sentenced his lawyer (Mr Martini) said that he would appeal, but he did not prepare any appeal. After a few months, the applicant employed Starnet Solicitors to prepare his appeal, but they failed to do so. After about a year, he changed solicitors to Ms Milanda Walker. He then tried Victoria Legal Aid without success.

16 That bare explanation is not particularly satisfactory. In particular, the applicant does not explain why he left the matter in the hands of Starnet Solicitors for almost one year. While I appreciate that the applicant was then in custody, that did not deprive him of access to his legal advisers. Further, the applicant has failed to address what occurred after he had changed his legal representatives from Starnet Lawyers to Ms Walker. Thus, his application should be considered on the basis that he has not proffered a particularly compelling explanation as to why such a substantial delay has occurred before he has applied to seek leave to appeal against his sentence.

17 In light of that proposition, it is necessary to examine the prospective merits of the proposed application for leave to appeal against sentence, in order to determine whether, relevantly, there is a likelihood that the proposed appeal will succeed.

18 The written case, filed on behalf of the applicant, focuses on the circumstances of the offence for which he was sentenced. In particular, in his written case, the applicant claims that the incident began when his wife approached him from behind and tried to attack him with the knife that was in her hand. The applicant maintains that he overpowered his wife and took the knife from her, and in the course of that struggle they were both injured. The applicant further claims that by his actions he saved his own life and his wife's life. He alleges that during the incident he was injured and his kidneys were badly injured.

19 The applicant's case propounds a different version of the events than that which formed the basis of the prosecution plea opening, which was the agreed factual basis on which the applicant was to be sentenced. It is also, apparently, inconsistent with the statements of the applicant's wife and the children, who observed the incident. In that respect, it is relevant that, in the course of the plea, the applicant's then legal representative observed that the factual basis of the incident had been 'essentially outlined by the children very well'.

20 The specific grounds of appeal, upon which the applicant seeks to proceed, are as follows:

(2) 'The sentence imposed on me would have been less had my lawyer followed my instructions and obtained all relevant medical records'.

21 In my view, the first proposed ground of appeal has little, if any, prospects of success. The offence, to which the applicant pleaded guilty, was a serious offence. As correctly observed by the sentencing judge, the applicant's offending constituted a 'particularly bad example' of the offence. In particular, the applicant was affected by alcohol. He armed himself with a sharpened knife. He used that knife to assault his wife, on more than one occasion, in the presence of his children. In doing so, he inflicted terrible injuries to her. As a result of the assault, Ghazala has sustained an unsightly and permanent scarring to her face, and, understandably, she has been severely traumatised by the incident. Significantly, the incident was yet one more instance of domestic violence, which is all too prevalent in our society. Ghazala, and the applicant's children, were entitled to feel safe and secure in their own home. The applicant's actions were a gross abuse of the trust that the applicant's wife had placed in him, particularly by permitting him to return to the home after she had previously obtained two intervention orders against him. In addition, the offending, while spontaneous, did take place over a period of time, in the course of which the applicant had ample opportunity to cease his assault on his wife. The applicant was considerably larger and stronger than Ghazala and, it would appear, he had little difficulty in overpowering her. All of those factors added to the gravity of the offending that was before the judge.

22 Indeed, in the absence of any mitigating circumstances, the sentence imposed on the applicant would be fairly characterised as being particularly light. However, the judge set out, in some detail, the mitigating circumstances on the basis of which he correctly moderated the sentence to be imposed on the applicant. In particular, the judge took into account the applicant's long history of physical and mental health problems, which his Honour set out in some detail. He noted that the applicant had suffered for some time from a long-standing lower back injury, which had been aggravated by two car accidents in 2001. As a result of those accidents, he sustained a closed head injury, which precipitated the development of paranoid ideation. The judge set out, in detail, the applicant's mental health problems, including his assessment by Community Corrections in 2006, his admission to Shepparton Hospital in July 2007, and his admission to North Park Hospital in 2011. The judge also set out the views of the applicant's long term psychiatrist, Dr Brendan Holwill, and of Ms Fiona Batchelor, his long term psychologist. In addition, the judge referred to the report of Dr Lester Walton, a psychiatrist, Dr Nihal Nanayakkara, a consultant physician, and Dr Robert Testez, a psychiatrist.

23 In particular, the judge took into account that each of the principles summarised in R v Verdins[6] had application, in that the applicant's psychiatric condition reduced his moral culpability, and diminished the need for the sentence to reflect the principles of general deterrence. In addition, his Honour accepted that the term of imprisonment needed to be adjusted, because the applicant's time in prison would be more difficult because of his many health problems. The judge also took into account the applicant's plea of guilty. While the judge did not accept that the applicant was remorseful, he nevertheless gave appropriate weight to the utilitarian benefits of the plea, including that it spared the applicant's wife and children from the stress of a contested court hearing.

24 Taking all those matters into account, it is clear that the judge gave appropriate weight to each of the sentencing factors that were relevant in the case. Balancing the aggravating nature of the offending with the mitigating circumstances, it could not, in my view, be validly maintained that the head sentence and the non-parole period imposed by the judge were not reasonably open to his Honour. Indeed, and notwithstanding the force of the mitigating circumstance in favour of the applicant, in my view, no lesser sentence would have sufficed, given the gravity of the circumstances attending the offending.

25 The second ground of the proposed appeal is based on an alleged failure by the applicant's legal representatives to obtain all relevant medical records.

26 The materials relied on by the applicant, in support of that ground, do not contain any fresh evidence. Where an appeal against sentence is based on material, which was available to the applicant, but was not put before the court, that material will be admitted before the appellate court, if it is of such dimension that the omission to put it before the sentencing judge constituted a miscarriage of justice.[7] However, the evidence must be sufficiently compelling to demonstrate that there had been a miscarriage of justice arising from the fact that that material had not been brought to the attention of the sentencing judge.[8]

27 The applicant has put before this Court a collection of material, which he submits should have been placed before the sentencing judge. He also placed further material before this Court today.

28 The first such document is the discharge summary of the St Vincent's Hospital. It records an admission dated 15 May, and a discharge date of 25 May 2012. The summary notes that the applicant suffered from rhabdomyolysis, which is a condition affecting the kidneys, and consequent acute renal failure. The summary does not ascribe that condition to any traumatic incident, but, rather, states that the condition was suspected as possibly being secondary to an unwitnessed seizure of the applicant in his cell. There was also a suspicion that there was a malignancy. Thus, the report does not provide any further support to the applicant's claim, before this Court, that he acted in self-defence in the incident in question. While it adds further weight to the mitigating factors pertaining to his medical circumstances, nevertheless, the judge had a substantial body of material before him relating to that aspect of the applicant's circumstances. Indeed, the judge noted, in his sentencing reasons, that 'rarely does the criminal court have before it such a comprehensive history of medical treatment'.[9]

29 The further material also contains the report of Dr Guymer, which was not before the sentencing judge. However, that report describes injuries which were fairly summarised to the judge by the prosecutor in the plea opening, and to which I have already referred. They certainly add no weight to the applicant's claim that he acted in self-defence in the incident for which he was sentenced. The injuries, described by Dr Guymer, are relatively minor, and could well have been attributed to the struggle which ensued after the applicant assaulted his wife with the knife. The injuries sustained by the applicant paled into insignificance in comparison to the serious injuries that he inflicted on his wife. They support, rather than detract from, the proposition that the applicant, and not his wife, was the aggressor in the particular incident.

30 The further materials also contain a letter from Dr Amatun Rashid dated 12 September 2011, attaching a number of medical records, all of which predate the incident in question. Significantly, those records also note the applicant's history of renal failure. They do contain a reference to an allegation by the applicant that he had a fight with his wife in March 2011,in the course of which she scratched him. However, the injuries observed by the doctor on that examination were minor. In my view, those records add nothing to the assertion by the applicant that he acted in self-defence in the incident in question. Nor do they add materially to the information that was before the judge as to the applicant's medical condition.

31 In addition, the further materials contain neuropsychological reports, prepared in May 2003 and April 2005. They do not relevantly add to the information that was put before the judge as to that aspect of the applicant's condition.

32 Finally, I do not consider that any of the materials, provided to the Court today, advance the applicant's claim to have acted in self-defence. Nor do they add to the weight of the mitigating circumstances put to the sentencing judge.

33 Accordingly, it follows that the applicant has not demonstrated any cogent basis upon which to contend that the failure of his legal representatives, to put the additional medical material before the sentencing judge, constituted, or resulted in, a miscarriage of justice.

34 Thus, based on the matters to which I have referred, I do not consider that there is any likelihood that either of the applicant's grounds of appeal would succeed, if the application for an extension of time, and the application for leave to appeal against sentence, were granted. Rather, and on the contrary, in my view both grounds of appeal have little, if any, prospect of success.

35 In conclusion, the period of delay in this case is long. The reasons relied on by the applicant for that delay are unconvincing. If the application for an extension of time were granted, there would be little prospect that the applicant's proposed appeal against sentence would succeed. In those circumstances, the application by the applicant for an extension of time, within which to seek leave to appeal against his sentence, should be dismissed.

36 I agree. The order of the Court will be that the application for extension of time be refused.

[1] (Unreported, Court of Criminal Appeal, Gowans, Lush and Crocket JJ, 2 May 1975).

[2] See also Roth v The Queen [2014] VSCA 242 [3] (Neave and Priest JJA).

[3] [2013] VSCA 83; [2013] 275 FLR 454.

[5] [2013] VSCA 87 [17].

[6] R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; (2007) 16 VR 269.

[7] Babic v The Queen [1998] 2 VR 79, 80 (Brooking JA); Romero v The Queen (2011) 32 VR 486, 489 [11] (Redlich JA, with whom Buchanan and Mandie JJA agreed); Abbott v The Queen (1985) 17 A Crim R 355, 356 (Street CJ).

[8] Romero v The Queen (2011) 32 VR 486, 489 [11].

[9] DPP v Rehal [2013] VCC 814 [27].