Brendan Sanderson v The Queen - [2015] VSCA 315

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0027

BRENDAN SANDERSON	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN, SANTAMARIA and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 November 2015
DATE OF JUDGMENT:	25 November 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 315
JUDGMENT APPEALED FROM:	DPP v Sanderson (Unreported County Court of Victoria, Judge Millane, 6 December 2012)

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CRIMINAL LAW – Sentence – Application for extension of time within which to seek leave to appeal sentence – Long delay – Explanation inadequate – No reasonable prospect of success – Application refused.

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APPEARANCES:	Counsel	Solicitors
Applicant	In person
Respondent	Ms F L Dalziel	Ms V Anscombe, Acting Solicitor for Public Prosecutions

WHELAN JA:

On 6 December 2012 the applicant was sentenced to a total effective sentence of five years one month imprisonment with a non-parole period of three years six months on two charges of burglary, three charges of theft, a charge of aggravated burglary, a charge of common assault, and a summary charge of dealing with property suspected of being the proceeds of crime.

On 10 February 2015 the applicant filed an application (dated 6 February 2015) for an extension of time in which to file notice of an application for leave to appeal the sentences. The Registrar of Criminal Appeals refused that application on 3 March 2015. By a notice dated 13 March 2015 the applicant sought to have his application for an extension determined by the Court of Appeal.

Relevant legislative provisions and legal principles

Pursuant to s 278 of the Criminal Procedure Act 2009 (‘the Act’) a person may appeal to the Court of Appeal against a sentence imposed if the Court of Appeal gives the person leave to appeal. Pursuant to s 279 of the Act an application for leave to appeal is to be commenced by filing a notice within 28 days after the day on which the person is sentenced, or within the period of any extension granted. Pursuant to s 313 of the Act the Court of Appeal or, in accordance with the Rules of Court, the Registrar of Criminal Appeals may extend the time within which a notice of application for leave to appeal may be filed. Under r 2.23(1) of the Supreme Court (Criminal Procedure) Rules 2008 applications for an extension of time under s 313 of the Act are to be made in the first instance to the Registrar. Under r 2.23(3)(b) if the Registrar refuses the application the applicant may elect to have the application determined by the Court of Appeal.

The principles which apply where an application is made for an extension of time for leave to appeal are well established. They were set out by Winneke ACJ (with whom Phillips and Eames JJA agreed) in R v Davis.[1] Winneke ACJ said:
[1](2003) 6 VR 538.

The bases upon which this court will grant an application to extend time for leave to appeal against conviction and/or sentence are not 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 Brendan Sanderson v The Queen

Details

AGLC: Brendan Sanderson v The Queen [2015] VSCA 315
Case: [2015] VSCA 315
Decision Date: 25 November 2015

CaseChat Overview and Summary

The case of Brendan Sanderson v The Queen involved a dispute concerning the sentencing of the appellant, Sanderson, following a conviction for criminal offences. The High Court of Australia was tasked with determining the validity of Sanderson's application for an extension of time to seek leave to appeal against his sentence. The primary issue before the court was whether the delay in filing the application was justifiable and whether there was a reasonable prospect of success if leave to appeal were granted.

The court considered the length of the delay and the adequacy of the explanation provided by Sanderson. It was noted that the delay was significant, and the explanation offered was insufficient to justify the late filing. The court emphasised the importance of timely appeals in the criminal justice system, highlighting that such delays can undermine the fairness and integrity of the legal process. Additionally, the court assessed whether there was a reasonable prospect of success on the appeal, which was found to be lacking based on the arguments presented.

Given the inadequate justification for the delay and the lack of a reasonable prospect of success, the court concluded that the application for an extension of time should be refused. The decision underscored the need for strict adherence to procedural rules in criminal appeals, particularly in relation to timeliness and the quality of the application. The court's ruling confirmed that the application was dismissed, and no further leave to appeal the sentence was granted.

Orders