OCEK v R [2009] NSWCCA 42

New South Wales Court of Criminal Appeal

CITATION: OCEK v R [2009] NSWCCA 42

HEARING DATE(S): 4 February 2009

JUDGMENT DATE: 26 February 2009

JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Adams J at 3

DECISION: Leave to appeal granted Appeal dismissed

CATCHWORDS: CRIMINAL LAW - aggravated sexual assault - appeal against sentence - fresh evidence on mitigation rejected as relevant but not cogent - sentence not in error

LEGISLATION CITED: Crimes Act 1900 s 61J

CATEGORY: Principal judgment

PARTIES: Barbros OCEK (Applicant) Regina (Respondent)

FILE NUMBER(S): CCA 2003/00013747

COUNSEL: Mr M Ramage QC (Applicant) Mr D Arnott SC (Respondent)

SOLICITORS: Voros Lawyers (Applicant) S Kavanagh (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/1248

LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ

LOWER COURT DATE OF DECISION: 3 June 2004

IN THE COURT OF CRIMINAL APPEAL 2003/00013747

McCLELLAN CJ at CL JAMES J ADAMS J

26 February 2009 Barbros OCEK v R Judgment

1 McCLELLAN CJ at CL: I agree with Adams J. 2 JAMES J: I agree with Adams J. 3 ADAMS J:

Introduction

On 31 March 2004 the applicant was convicted in the District Court of two counts of aggravated sexual assault under s 61J of the Crimes Act 1900 committed upon the same victim in the course of one episode on 26 April 2002. The maximum penalty is twenty years' imprisonment. In respect of the first charge, in which the aggravation was threatening the victim with a knife, the applicant was sentenced to eight years' imprisonment with a non-parole period of six years. In respect of the second charge, where the aggravation comprised assaulting the victim and occasioning actual bodily harm to her, he was sentenced to seven years with a non-parole period of five years. The latter sentence commenced eighteen months after the commencement of the former and thus the effective sentence was one of eight years and six months' imprisonment with a non-parole period of six years and six months. The applicant had been on bail until the date of his conviction, which was specified as the commencement date of his imprisonment. 4 The applicant filed a notice of intention to apply for leave to appeal against his sentence on 2 July 2004. The Registrar of the Court granted a number of extensions for filing the application, the last of which expired on 15 March 2006. Ultimately, the application was filed on 12 August 2008, years out of time. It was necessary, therefore, that the applicant seek the leave of the Court to proceed. The applicant's solicitor has provided an affidavit explaining why the delay occurred. It is sufficient to say that, although this matter was regrettably conducted with a substantial degree of inefficiency, the applicant was not, as I see the case, responsible for this. Accordingly, I would grant an extension of time sufficient to permit the application for leave to appeal to proceed. 5 The applicant also seeks to tender fresh evidence which, it is contended, is relevant to the proper assessment of the appropriateness of his sentence and, if admitted, should lead to its reduction. The Crown opposes the reception of this material.