Austerberry v The King - [2025] VSCA 57

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0131

TRAVIS AUSTERBERRY	Applicant
v
THE KING	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	3 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 57
JUDGMENT APPEALED FROM:	[2023] VCC 1904 (Judge Chettle)

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CRIMINAL LAW – Sentencing – Application for extension of time within which to seek leave to appeal against sentence – Theft (rolled up charge of theft encompassing 271 separate thefts totalling $479,695) – Sentence of 3 years with non-parole period of 2 years – Comparable cases – Manifest excess – Not reasonably arguable that sentence manifestly excessive – Futile to grant extension of time – Application for extension of time refused.

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Counsel
Applicant:		Unrepresented
Respondent:		Mr J O’Connor
Solicitors
Applicant:
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA:

The applicant was a certified practising accountant employed in Bendigo. He was a member of the Belvoir Park Gold Club at Ravenswood (‘the Club’). In 2017, he became a committee member of the Club. In 2018, he became the Club treasurer. As such, he had access to the Club’s bank account.
Between April 2020 and November 2022, in 271 separate thefts committed by him, the applicant stole a total of $479,695 from the Club.
On 20 October 2023, following a plea of guilty to a rolled up charge of theft, the applicant was sentenced in the County Court to a term of imprisonment of three years, with a non-parole period of two years.[1] The maximum term of imprisonment for theft is 10 years.
[1]DPP v Austerberry [2023] VCC 1904 (‘Reasons’).
On 20 June 2024, more than six months after the time limited for filing an application for leave to appeal against sentence, the applicant filed an application for an extension of time within which to seek leave to appeal against sentence. The applicant’s proposed ground of appeal is that the sentence imposed upon him was manifestly excessive.
The principles governing extension of time applications of the present kind are well settled. Specifically, the question whether a court should exercise its discretion to extend time is informed by what the interests of justice require in the particular circumstances of the case.[2] Factors relevant to the exercise of that discretion include the length of the delay, the reasons for the delay, and the prospects of success of the proposed appeal.[3]
[2]Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).
[3]Ibid.
In his application for an extension of time, the applicant (who is unrepresented) advances five reasons for failing to file his application for leave to appeal within the prescribed time. Broadly speaking, his reasons consist of complaints about his former solicitors’ inaction, and delays in him receiving necessary advice and/or information. In the circumstances of this case, it is convenient to commence the analysis of the applicant’s application for an extension of time by looking at the merits of his proposed appeal.

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 Austerberry v The King

Details

AGLC: Austerberry v The King [2025] VSCA 57
Case: [2025] VSCA 57
Decision Date: 3 April 2025

CaseChat Overview and Summary

The matter of Austerberry v The King involved the defendant, Austerberry, appealing against the sentence imposed for a series of thefts. The thefts, which occurred over an extended period, were consolidated into a single charge involving 271 separate incidents and resulting in a total loss of $479,695. The High Court of Australia was tasked with determining whether an extension of time should be granted to Austerberry to seek leave to appeal against his sentence of three years imprisonment with a non-parole period of two years.

The central legal issue before the court was whether the application for an extension of time to appeal the sentence should be granted. Austerberry contended that the sentence was manifestly excessive when compared to other similar cases. The court needed to assess the severity of the sentence in light of the extensive nature of the thefts and consider whether it was reasonably arguable that the sentence was manifestly excessive. Additionally, the court had to determine whether granting an extension of time would serve a useful purpose.

The court examined the nature and extent of the thefts, which involved a significant financial loss and spanned over a considerable period. It considered comparable cases where similar offences were committed and the sentences imposed. The court concluded that the sentence was not manifestly excessive and that there was no reasonable basis to argue otherwise. As a result, the court found that it would be futile to grant an extension of time for Austerberry to seek leave to appeal. The application for an extension of time was therefore refused.

Orders