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…
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- AGLC
- Warwick v The Queen [2014] VSCA 114
- Case
- [2014] VSCA 114
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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