Barber v The Queen

Case [2018] VSCA 232


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:

  1. 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].

  1. 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.

  1. 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…

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Barber v The Queen [2018] VSCA 232
Case
[2018] VSCA 232
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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.

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