and Glen Burns (a pseudonym)[1] v The Queen - [2016] VSCA 195

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.

---

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)

---

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.

---

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

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.

Keep reading for free

Create a free CaseChat account to read and Glen Burns (a pseudonym)[1] v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] VSCA 195
Decision Date: 11 August 2016

CaseChat Overview and Summary

The appellant, Glen Burns, appealed against his sentence following his conviction for stalking, recklessly causing injury, aggravated burglary, indecent assault (two charges), rape, and breaching an intervention order (two charges). The appeal pertained to the time within which he could seek leave to appeal against the sentence. The appellant sought an extension of time to appeal his sentence, arguing that new evidence about his psychiatric condition had come to light. The court needed to determine whether the new evidence was sufficiently compelling to warrant an extension of time and whether there was a reasonable prospect that the Court of Appeal would impose a less severe sentence if the appeal were to proceed.

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.

Orders