SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2016 0139 | |
| GLEN BURNS (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victim(s) of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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JUDGES: | WHELAN and BEACH JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 August 2016 | |
DATE OF JUDGMENT: | 11 August 2016 | |
MEDIUM NEUTRAL CITATION: | [2016] VSCA 195 | |
JUDGMENT APPEALED FROM: | DPP v [Burns] (a pseudonym) (Unreported, County Court of Victoria, Judge Coish, 19 September 2013) | |
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CRIMINAL LAW – Sentence – Stalking, recklessly causing injury, aggravated burglary, indecent assault (2 charges), rape, and breaching intervention order (2 charges) – Sentenced to total effective sentence of 7 years and 6 months with non-parole period of 5 years – New evidence – Application for an extension of time within which to seek leave to appeal against sentence – Application for extension of time based on new evidence about applicant’s psychiatric condition – New material not sufficiently compelling to demonstrate miscarriage of justice if applicant not permitted to rely upon it – No reasonable prospect that Court of Appeal would impose less severe sentence in any event – Application for extension of time refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms P R Riddell | MIR Lawyers |
| For the Respondent | Ms D Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
WHELAN JA
BEACH JA:
Introduction
On 13 September 2013, following a six-day trial in the County Court, the applicant was found guilty of one charge of stalking, one charge of recklessly causing injury, one charge of aggravated burglary, two charges of indecent assault and one charge of rape. On 17 September 2013, a plea hearing was conducted. At the plea hearing, the applicant pleaded guilty to two summary charges of breaching an intervention order.
On 19 September 2013, the applicant was sentenced as follows:
Charge on
Indictment
Offence
Maximum
Sentence
Cumulation
1 Stalking
[s 21A of the Crimes Act 1958]
10 years 9 months 3 months 6 Recklessly Causing Injury
[s 18 of the Crimes Act 1958]
5 years 6 months 3 months 7 Aggravated Burglary
[s 77(1) of the Crimes Act 1958]
25 years 3 years 12 months 8 Indecent assault
[s 39(1) of the Crimes Act 1958]
10 years 12 months 3 months 9 Indecent assault
[s 39(1) of the Crimes Act 1958]
10 years 12 months 3 months 10 Rape
[s 38(1) of the Crimes Act 1958]
25 years 66 months Base Summary
Charge 5
Breach Intervention Order
[s 123 of the Family Violence Protection Act 2008]
Plea of guilty
2 years 3 months - Summary
Charge 9
Breach Intervention Order
[s 123 of the Family Violence Protection Act 2008]
Plea of Guilty
2 years 3 months - TotalEffectiveSentence: 7 years 6 months Non-ParolePeriod: 5 years Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991
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- Case
- [2016] VSCA 195
- Decision Date
CaseChat Overview and Summary
The court examined the new material provided by the appellant, which related to his psychiatric condition. The court found that the new evidence did not sufficiently demonstrate a miscarriage of justice if the appellant were not permitted to rely upon it. The court also considered whether there was a reasonable prospect that the Court of Appeal would impose a less severe sentence. In the absence of such a prospect, the court was not persuaded that an extension of time was warranted. The court ultimately concluded that the new material was not sufficiently compelling to warrant an extension of time within which to seek leave to appeal against sentence.
In light of the court's findings, the appellant's application for an extension of time to appeal his sentence was refused. The court's decision was based on the lack of compelling new evidence and the absence of a reasonable prospect of a less severe sentence being imposed by the Court of Appeal. The appellant's total effective sentence of 7 years and 6 months, with a non-parole period of 5 years, remained unchanged. The court did not grant the appellant an extension of time to seek leave to appeal against his sentence.
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Background to the litigation
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Evidence
Evidence Before The Court
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