and Daniel Joseph Warwick v The Queen - [2014] VSCA 114

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0243
DANIEL JOSEPH WARWICK	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 June 2014
DATE OF JUDGMENT:	6 June 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 114
JUDGMENT APPEALED FROM:	[2012] VSC 382 (Hollingworth J)

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CRIMINAL LAW – Sentence – Application for an extension of time to apply for leave to appeal against sentence – Whether evidence is fresh evidence – Whether matters alleged to constitute fresh evidence were known to sentencing judge – Matters alleged to constitute fresh evidence taken into account by sentencing judge – Application 13 months out of time – No realistic prospects of success of application for leave to appeal against sentence – No reasonable prospect of court imposing less severe sentence – Application refused – Criminal Procedure Act 2009, ss 279(1), 280(1) and 281.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Gillespie Jones	Revill & Papa Lawyers
For the Respondent	Mr DA Trapnell QC	Mr C Hyland, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

Introduction

On 17 August 2012, the applicant was found guilty by a jury of one charge of intentionally causing serious injury and one charge of conduct endangering life. On 13 September 2012, Hollingworth J sentenced the applicant to 5 years and 9 months’ imprisonment on the count of intentionally causing serious injury and 2 years’ imprisonment on the count of conduct endangering life. Her Honour ordered 3 months of the sentence imposed for conduct endangering life to be served cumulatively with the sentence for intentionally causing serious injury, making a total effective sentence of 6 years’ imprisonment, and directed that the applicant serve a non-parole period of 4 years.

On 9 December 2013, the applicant filed an application for leave to appeal out of time for leave to appeal against his conviction on the count of conduct endangering life and for leave to appeal out of time for leave to appeal against the sentence imposed by the trial judge. The proposed grounds of appeal were as follows:

1. The reckless endangerment charge was bad for duplicity.
2. The sentence ought be set aside by reason of fresh evidence.

On 20 January 2014, the Deputy Registrar (Legal) refused the applicant’s application for an extension of time for leave to appeal against conviction and sentence. On 24 January 2014, the applicant filed a Notice of Election to renew his application. Thus, the matter now comes before this Court. This morning, the applicant abandoned his application for an extension of time for leave to appeal against conviction.

The principles to be applied

The time limit for seeking leave to appeal against the applicant’s sentence was 28 days after the day on which the applicant was sentenced.[1] The principles which govern an application for extension of time in which to apply for leave to appeal were distilled by Gowans J in the judgment of the Court of Criminal Appeal in R…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading and Daniel Joseph Warwick v The Queen

Details

AGLC: Warwick v The Queen [2014] VSCA 114
Case: [2014] VSCA 114
Decision Date: 6 June 2014

CaseChat Overview and Summary

Daniel Joseph Warwick has applied to the Court for an extension of time to apply for leave to appeal against his sentence. The Court must determine whether the evidence Warwick claims is fresh evidence was known to the sentencing judge, and whether the matters alleged to constitute fresh evidence were taken into account by the sentencing judge. The Court must also determine whether the application is out of time and whether there are any realistic prospects of success of the application for leave to appeal against sentence, and whether there is a reasonable prospect of the Court imposing a less severe sentence.

The Court held that the evidence Warwick claimed was fresh evidence was not in fact fresh evidence as it was known to the sentencing judge and had been taken into account by the sentencing judge. The Court also held that the application was 13 months out of time and that there were no realistic prospects of success of the application for leave to appeal against sentence, nor was there a reasonable prospect of the Court imposing a less severe sentence. The Court refused the application for an extension of time to apply for leave to appeal against sentence.

The Court noted that an application for an extension of time to apply for leave to appeal against sentence must be made within 28 days of the decision to which the application relates. The Court also noted that an application for leave to appeal against sentence will only be granted if there are exceptional circumstances justifying the delay and there are reasonable prospects of success of the application for leave to appeal against sentence. The Court held that Warwick had failed to demonstrate that there were exceptional circumstances justifying the delay and that there were reasonable prospects of success of the application for leave to appeal against sentence.

The Court refused the application for an extension of time to apply for leave to appeal against sentence. The Court held that the application was out of time and that there were no realistic prospects of success of the application for leave to appeal against sentence, nor was there a reasonable prospect of the Court imposing a less severe sentence. The Court noted that the sentencing judge had taken into account all relevant matters in imposing the sentence and that the sentence was appropriate in the circumstances.

Orders