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…
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- AGLC
- Brendan Sanderson v The Queen [2015] VSCA 315
- Case
- [2015] VSCA 315
- Decision Date
CaseChat Overview and Summary
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.
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