Baltas v The Queen - [2011] VSCA 169

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 0294 2010
S APCR 0373 2010

PAUL BALTAS	Applicant
	V
THE QUEEN	Respondent

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JUDGES	NEAVE, REDLICH and BONGIORNO JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	9 June 2011
DATE OF JUDGMENT	10 June 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 169
JUDGMENT APPEALED FROM	R v Baltas (Unreported, County Court, Judge Tinney, 6 August 2010)

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CRIMINAL LAW – Application for leave to appeal against sentence – Refused by single judge – Election to have application heard by three judges – Applicant pleaded guilty to two counts of theft, four counts of attempted theft and one count each of burglary, attempting to obtain property by deception and obtaining property by deception –Extensive prior convictions – Lenient sentence – Application refused.

CRIMINAL LAW – Extension of time within which to file notice of appeal against conviction on count of burglary – Plea of guilty – Short lapse of time – No chance of appeal being allowed – Application refused.

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Appearances:	Counsel	Solicitors
The Applicant in person
For the Respondent	Ms Amanda Forrester	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA
REDLICH JA
BONGIORNO JA:

On 28 July 2010, the applicant, Paul Baltas, pleaded guilty to nine offences, comprising two counts of theft, four counts of attempted theft and one count each of burglary, attempting to obtain property by deception and obtaining property by deception. He was sentenced for those offences on 6 August 2010.

Mr Baltas filed a notice of application for leave to appeal against his burglary conviction. The notice was dated 2 September 2010 (a day before the date on which the 28 day time limit for the filing of a notice of appeal expired), but the envelope containing the notice was postmarked 14 September and it was received by the Crown and in the Registry on 15 September 2010. On 18 October 2010,[1] the applicant filed an application for an extension of time within which to lodge that notice of appeal.
[1]The document was dated 17 October 2010.

On 25 February 2011, the Registrar of Criminal Appeals refused the application. The applicant now seeks to have that application reheard and determined.

Mr Baltas also sought leave to appeal against his sentence. Leave was refused by a single judge of this Court on 17 November 2010. Mr Baltas filed a notice electing to have his application for leave to appeal against sentence (‘election application’) determined by a Court constituted by two or three judges on 23 December 2010, on the basis that he received the notification of the refusal of leave to appeal against sentence on 22 December 2011.[2]
[2]The time limit for filing a notice election to have his application heard by a bench of two or three judges is 10 days from the notification of that decision.

These reasons relate to his application for extension of time in relation to his conviction appeal and to his election application

Background to the applications

It is necessary to…

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 Baltas v The Queen

Details

AGLC: Baltas v The Queen [2011] VSCA 169
Case: [2011] VSCA 169
Decision Date: 10 June 2011

CaseChat Overview and Summary

Baltas v The Queen involved the appellant who had pleaded guilty to a series of criminal charges, including theft, attempted theft, burglary, and deception offences. The appellant applied for leave to appeal against the sentence and also sought an extension of time within which to file a notice of appeal against the conviction on one of the counts of burglary. The case was heard by a single judge who refused the application for leave to appeal and also denied the extension of time for the appeal against the burglary conviction. The appellant elected to have the application for leave to appeal heard by a Full Court of three judges.

The legal issues before the court were whether the sentence imposed was lenient and warranted an appeal, and whether the short lapse of time since the guilty plea justified an extension of time to appeal the burglary conviction. In considering the sentence, the court took into account the appellant's extensive prior convictions and the leniency of the sentence imposed by the trial judge. The court found that the sentence was not so lenient as to warrant an appeal. In relation to the extension of time for the burglary conviction appeal, the court held that the short lapse of time and the lack of any chance of the appeal being allowed meant that the application should be refused.

The Full Court upheld the single judge's decision, concluding that the application for leave to appeal against the sentence should be refused, as the sentence was not so lenient as to warrant an appeal. The court also upheld the refusal of the application for an extension of time to appeal the burglary conviction, finding that the short lapse of time and the lack of any chance of the appeal being allowed were sufficient grounds for refusal. The appellant's applications were accordingly dismissed.

No specific orders were made beyond the refusal of the appellant's applications. The appellant was not granted leave to appeal against the sentence, and the extension of time for the burglary conviction appeal was not granted.

Orders