Citation: Kontaxis v R [2021] NSWCCA 72
Court: NSW Court of Criminal Appeal
Date: 21 April 2021
Judges: Basten JA; Walton J; Button J
Background
The applicant was sentenced in the District Court on 2 September 2016 to an aggregate term of eight years' imprisonment, with a non-parole period of six years, following guilty pleas to six counts of sexual intercourse with a child aged between 10 and 14 years in circumstances of aggravation, contrary to s 66C(2) of the Crimes Act 1900 (NSW). The offences were committed between December 2003 and March 2005 against the applicant's stepdaughter, who was aged 12 to 13 at the time. The applicant was represented by counsel at the sentencing proceedings.
A notice of intention to seek leave to appeal was filed promptly after sentencing. The Court extended the appeal period on at least two occasions, but the extended time ultimately expired in March 2018. More than two years later, on 22 June 2020, the applicant (now self-represented) filed an application for leave to appeal against sentence.
The applicant raised six grounds of appeal, including voluntary disclosure, exceptional hardship to family, diminished moral culpability due to mental health, onerous prison conditions, and what he characterised as incorrect evidence by the Crown regarding the complainant's age at the time of the offences.
Legal Issues
- Whether the Court should grant a further extension of time, given the application was filed approximately three years and nine months after the sentence was imposed
- Whether the grounds of appeal disclosed sufficient merit to warrant that extension
- Whether the sentencing judge erred in light of asserted fresh material regarding prison conditions, family hardship, the applicant's mental health, and the complainant's age at the time of offending
Decision
The majority (Basten JA and Walton J) refused the extension of time. Basten JA found that no acceptable explanation had been provided for the delay of more than two years beyond the already-extended deadline. His Honour also found that the applicant's written submissions were substantially grounded in factual assertions not supported by evidence properly before the Court, and that even accepting those assertions at face value, no arguable injustice would flow from refusing leave.
Button J examined the grounds of appeal individually and in detail. His Honour found that much of the material relied upon either had been or could have been placed before the sentencing judge at the time, and that none of the grounds was ultimately made out. On the question of the complainant's age, Button J rejected the applicant's contention that the indictment was incorrectly particularised. Given the agreed fact that the complainant was born in late May 1991, the particularisation of her age as 12 or 13 years at the relevant times was accurate, and the applicant had pleaded guilty to the indictment while represented by counsel.
Although the judges differed on the formal pathway (Button J would have granted leave to appeal out of time before dismissing the appeal on the merits, while the majority refused the extension of time at the threshold), the Court was unanimous in the outcome: the application failed entirely. The Court noted that, regardless of the technical route, all material submitted by the applicant had been given thorough consideration.
Orders Made
- Leave to appeal against sentence out of time granted (Button J's proposed orders, though the majority refused the extension of time at threshold)
- Appeal against sentence dismissed
Key Takeaways
- A power to extend time for leave to appeal, while to be exercised generously, requires the applicant to affirmatively persuade the Court that extension is warranted; an unexplained delay of over two years beyond an already-extended deadline will ordinarily be fatal to that application.
- Factual assertions advanced by a self-represented applicant that were not established at sentence and are not supported by properly adduced evidence in the appellate proceedings carry little weight, particularly where some contradict agreed facts from the original proceedings.
- No error was established in the sentencing judge's treatment of the complainant's age, where the agreed facts firmly established the accuracy of the age particularised in the indictment and the applicant had pleaded guilty while legally represented.
- Grounds of appeal based on onerous prison conditions and exceptional hardship to family were not made out, in part because the material relied upon was, or could have been, available at the time of sentencing.
- In dismissing the appeal, the Court confirmed that where the merits are considered alongside the extension application, the absence of any arguable injustice from refusal of leave is itself a reason to decline the extension.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61M, 61O, 66C
- Criminal Appeal Rules, rr 3A, 3B
Cases:
- Khoury v R [2011] NSWCCA 118; 209 A Crim R 509
- Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49
- R v Birks (1990) 19 NSWLR 677
- R v Fordham (1997) 98 A Crim R 359
- R v Jarrold [2010] NSWCCA 69