Barkho v The Queen - [2019] VSCA 58

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0223

RICHARD BARKHO	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST AP and NIALL JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 March 2019
DATE OF JUDGMENT:	20 March 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 58
JUDGMENT APPEALED FROM:	DPP v Barkho (Unreported, County Court of Victoria, Judge Wilmoth, 25 July 2014)

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CRIMINAL LAW — Appeal — Sentence — Application for extension of time to appeal against sentence — Applicant suffered injury after sentence in prison assault — Resulting pain and disfigurement — Resulting post-traumatic stress disorder — Pre-existing depressive symptoms — Whether fresh evidence — Whether facts in existence at time of sentence — Relationship with partner causing the applicant difficulty in custody — Whether fresh evidence — Proposed grounds of appeal lacking merit — Application for extension of time refused — Criminal Procedure Act 2009, s 313 — Madafferi v The Queen [2017] VSCA 302 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Morrissey SC	Koutsantoni & Associates
For the Respondent	Mr J C J McWilliams	Mr J Cain, Solicitor for Public Prosecutions

PRIEST AP
NIALL JA:

As long ago as 25 July 2014 — following his plea of guilty to one charge of trafficking in a drug of dependence, methylamphetamine, in not less than a large commercial quantity[1] — a judge of the County Court sentenced the applicant to be imprisoned for 7 years and 3 months, with a non-parole period of 5 years.[2]
[1]The charge was laid as a Giretti count. See R v Giretti (1986) 24 A Crim R 112.
[2]The applicant also pleaded guilty to possessing 4.49 grams of cocaine and to a summary charge of dealing in the proceeds of crime.

By an application dated 23 October 2018, the applicant sought an extension of time within which to file a notice of application for leave to appeal against sentence, under s 313 of the Criminal Procedure Act 2009 (‘CPA’).

The application initially filed indicated that, should he be granted an extension of time, the applicant would seek to rely on what was said to be fresh evidence. Thus, the sole ground of appeal that the applicant first wished to agitate was formulated as follows:

Fresh evidence is now offered in the form of psychiatric evidence that the [applicant’s] pre-existing depressive symptoms and depression at the time of sentence significantly worsened as a result of an attack in prison and the subsequent trauma and classification issues whilst in the prison system. The fresh evidence may result in a significantly reduced sentence.

And the ground upon which the applicant originally made the application for an extension of time was expressed in the following way:

It was not until the 16th April 2018 that an independent forensic psychiatric report was obtained. A further report obtained on the 17th September 2018 made it clear that fresh evidence was now available to found an Appeal. The fresh evidence combined with other material may result in…

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 Barkho v The Queen

Details

AGLC: Barkho v The Queen [2019] VSCA 58
Case: [2019] VSCA 58
Decision Date: 20 March 2019

CaseChat Overview and Summary

In the case of Barkho v The Queen, the applicant sought an extension of time to appeal against his sentence, contending that he had suffered an injury following a prison assault which resulted in pain, disfigurement, and post-traumatic stress disorder. The applicant also argued that his relationship with a partner caused difficulties in custody. The Court of Appeal was required to determine whether the evidence presented constituted fresh evidence not in existence at the time of the sentence, and whether the proposed grounds of appeal had merit.

The court considered whether the applicant's injuries and the resulting psychological impact constituted fresh evidence. It held that the injuries themselves were not fresh evidence as they were already known at the time of the sentence. However, the court noted that the severity of the applicant's injuries and their impact on his mental health could be considered fresh evidence. The court also considered whether the difficulties arising from the applicant's relationship with his partner were fresh evidence, determining that they were not. The court found that the proposed grounds of appeal did not have merit as they did not provide a basis for extending the time to appeal.

The application for an extension of time to appeal was refused. The court held that the evidence presented did not constitute fresh evidence, and the proposed grounds of appeal lacked merit. The decision was made in accordance with the provisions of the Criminal Procedure Act 2009, and the case of Madafferi v The Queen [2017] VSCA 302 was considered in reaching the decision. The court did not grant the applicant an extension of time to appeal against his sentence.

Orders