AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 25 October 2013

Orchard v R

[2013] NSWCCA 239

Sexual offences
CRIMINAL LAW HOPELESS APPEAL NO ARGUABLE GROUNDS APPLICATION TO CHANGE PLEA NO ERROR IN REFUSAL NO ERROR IN REASONING OR RESULT

Citation: Orchard v R [2013] NSWCCA 239
Court: Court of Criminal Appeal, New South Wales
Date: 25 October 2013
Judges: Gleeson JA, RA Hulme J, Adamson J (judgment by Adamson J, with whom Gleeson JA and Hulme J agreed)

Background

The applicant had pleaded guilty in 2007 to three counts of sexual offences against a single victim: one count of indecent assault and two counts of sexual intercourse without consent. The victim was a mildly intellectually delayed young woman, aged 16 to 17 at the time of the offending. The offences occurred in October and November 2005, and a further indecent assault was taken into account on a Form 1.

The applicant was sentenced in the District Court in October 2008. The effective sentence was 10 years' imprisonment with a non-parole period of 8 years, which included a 14 per cent discount for the guilty pleas. The applicant had also unsuccessfully sought to withdraw those pleas before sentencing.

The application for leave to appeal against sentence was out of time. The applicant had filed two notices of application, neither within time, and no formal application for an extension of time had been made. The Court of Criminal Appeal therefore considered whether an extension of time should be granted.

  • Whether an extension of time to file an application for leave to appeal against sentence should be granted
  • Whether the sentencing judge erred in the exercise of the sentencing discretion
  • Whether the refusal by Hosking DCJ to allow the applicant to withdraw his guilty pleas was affected by error
  • Whether the sentences imposed, individually or in aggregate, were manifestly excessive

Decision

The Court examined each proposed ground of appeal and found none had merit. On the question of the plea withdrawal, the Court noted that no error had been identified in the refusal by Hosking DCJ. In that application, the applicant had relied on an alleged conversation with counsel, but the evidence did not support the assertion that he had been given improper advice or that a miscarriage had occurred.

On the question of the 14 per cent discount for the guilty plea, the Court found the discount was at the upper end of what was available, given that the utilitarian value of the pleas was significantly diminished by the applicant's lengthy and ultimately groundless attempts to withdraw them. No error was established in the approach taken to the plea discount.

In relation to the character references tendered at sentence, the Court concluded they carried little or no weight. Their authors were apparently unaware of the nature and extent of the applicant's offending. Additionally, the applicant's extensive prior criminal history for similar offending, dating back to 1993 and involving multiple victims, was a relevant and properly considered factor in the sentencing exercise, consistent with the principles in Veen v The Queen (No. 2).

On the question of manifest excess, the Court identified no error in either the individual sentences or the total effective sentence. The sentences for the two most serious counts ran wholly concurrently, and the Form 1 matter did not produce any additional accumulation. Because no arguable ground of appeal had been established, the Court found no purpose in granting an extension of time.

Orders Made

  • Extension of time to file application for leave to appeal refused.

Key Takeaways

  • In dismissing the application, the Court of Criminal Appeal confirmed that an extension of time to appeal will not be granted where the proposed grounds of appeal are entirely without merit, as there is no utility in doing so.
  • A guilty plea discount may be limited where the utilitarian value of the plea is substantially diminished, such as where the offender made protracted and unsuccessful attempts to withdraw the plea before sentencing.
  • Prior convictions for offences of a similar nature are a proper consideration in the sentencing exercise, consistent with the High Court's guidance in Veen v The Queen (No. 2) regarding the relevance of antecedent criminal history.
  • Character references provided at sentence may be afforded little or no weight where the referees were unaware of the nature or extent of the offending conduct.
  • No error was established in the sentencing judge's reasoning or result, reinforcing that appellate courts will not intervene in the exercise of a sentencing discretion absent identifiable error in process or outcome.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): s 38 (administering a stupefying drug), s 61I (sexual intercourse without consent), s 61J(2)(d) (sexual intercourse without consent in circumstances of aggravation), s 61L (indecent assault)

Cases
- Veen v The Queen (No. 2) [1988] HCA 14; 164 CLR 465
- R v Fordham (1997) 98 A Crim R 359
- R v Stephens (NSW Court of Criminal Appeal, 11 November 1994, unreported)