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Barber v The Queen

Barber v The Queen

Case [2018] VSCA 232 14 September 2018

Limitation Periods

Appeal

Fraud

Obtain Financial Advantage by Deception

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0020

DALE BARBER	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 September 2018
DATE OF JUDGMENT:	14 September 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 232 First Revision: 18 September 2018
JUDGMENT APPEALED FROM:	DPP v Barber [2016] VCC 1869 (Judge Pilgrim)

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CRIMINAL PROCEDURE – Extension of time for application for leave to appeal against sentence – Applicant pleaded guilty to 5 charges of obtain financial advantage by deception and one charge of attempt – Fraud on employer over 4-year period – Delay long – Explanation inadequate – Proposed grounds of appeal lacking merit – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms E McKinnon	Ressan Lawyers
For the Respondent	Ms E Ruddle	Mr J Cain, Solicitor for Public Prosecutions

KYROU JA
KAYE JA:

On 30 November 2016, the applicant pleaded guilty, before a judge of the County Court, to five charges of obtaining a financial advantage by deception (Charges 1–5), and one charge of attempting to obtain a financial advantage by deception (Charge 6). Following a plea made on his behalf on that day, the judge, on 1 December 2016, sentenced the applicant to three years’ imprisonment on each of the five charges of obtaining a financial advantage by deception, and two years’ imprisonment on the charge of attempting to obtain a financial advantage by deception. The judge directed that each of the sentences on the five charges of obtaining a financial advantage by deception be served concurrently with the sentence on Charge 1, and that six months of the sentence on the sixth charge (attempt to obtain a financial advantage by deception) be served cumulatively on the sentence imposed on Charge 1. Thus, the applicant was sentenced to a total effective sentence of three years and six months’ imprisonment, with a minimum non-parole period of two years and six months.[1]
[1]DPP v Barber [2016] VCC 1869 (‘Sentencing Remarks’) [55].

On 8 February 2018, long after the expiration of the 28-day period prescribed by s 279 of the Criminal Procedure Act 2009, the applicant filed with the Registry an application to extend time for leave to file and serve a notice of application for leave to appeal against sentence, together with a proposed notice of application for leave to appeal against sentence. The application for an extension of time was made on the ground that the applicant was refused Legal Aid and he had no funds to pay lawyers to act on his behalf in the appeal until his father died in September 2017, at which time he inherited a small amount of money.

The principles, that apply to an application for an extension of time, have been stated in a number of decisions of this Court. The applicant bears the burden of persuading the Court that an extension of time should be granted in his or her favour. The Court has a…

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 Barber v The Queen

Details

AGLC: Barber v The Queen [2018] VSCA 232
Case: [2018] VSCA 232
Decision Date: 14 September 2018

CaseChat Overview and Summary

The appellant in this case, Barber, sought an extension of time to apply for leave to appeal against his sentence. Barber had pleaded guilty to five counts of obtaining financial advantage by deception and one count of attempted deception. His offending involved a fraudulent scheme against his employer over a period of four years. The application for an extension of time was brought before the court due to the significant delay in lodging the application and the inadequacy of the explanation provided by Barber. The court was tasked with determining whether the application should be granted and, if so, whether the proposed grounds of appeal had sufficient merit to warrant the extension of time.

The central legal issues the court had to address were whether the delay in lodging the application was justified and whether the proposed grounds of appeal had merit. The court considered the length of the delay and the adequacy of the explanation provided by Barber. Additionally, the court evaluated the strength of the grounds of appeal to determine if they had a reasonable prospect of success. The court found that the delay was excessive and the explanation provided was insufficient to warrant an extension of time. Furthermore, the court concluded that the proposed grounds of appeal were lacking in merit, and therefore, the application should be refused.

The court's reasoning was based on the significant delay in lodging the application and the inadequacy of the explanation provided. The court emphasised that while some delay may be acceptable, the delay in this case was substantial and unjustified. The court also highlighted that the explanation provided by Barber did not sufficiently account for the delay. Moreover, the court examined the proposed grounds of appeal and determined that they did not have a reasonable prospect of success, which further supported the refusal of the application. Ultimately, the court refused the application for an extension of time, finding that the delay was excessive and the grounds of appeal were lacking in merit.

The final orders of the court were to refuse the application for an extension of time to apply for leave to appeal against the sentence. The court found that the delay in lodging the application was not justified, and the explanation provided was inadequate. Additionally, the court determined that the proposed grounds of appeal did not have sufficient merit to warrant the extension of time. As a result, Barber's application was dismissed, and the sentence imposed remained in effect.

Orders