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Burke v The King

Burke v The King

Case [2023] VSCA 233 25 September 2023

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0047

JACOB BURKE	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 September 2023
DATE OF JUDGMENT:	25 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 233
JUDGMENT APPEALED FROM:	[2023] VCC 1355 (Judge Lacava)

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CRIMINAL LAW – Sentence – Appeal – Application for extension of time within which to seek leave to appeal – Theft (37 charges), attempting to obtain financial advantage by deception (4 charges), obtaining property by deception (2 charges), handling stolen goods (4 charges), burglary (two charges), theft of firearm, damaging property, obtaining financial advantage by deception, recklessly exposing emergency worker to risk by driving and 19 related summary offences – Total effective sentence 5 years and 6 months, with non-parole period of 3 years and 4 months – No reasonable prospect that total effective sentence would be reduced – No reasonable prospect that less severe non-parole period would be imposed – Application for leave to appeal having no prospect of success – Futile to grant extension of time – Application for extension of time refused.

Criminal Procedure Act 2009, s 280(1), Sentencing Act 1991, ss 5(2H), 16(3C) and (3D).

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Counsel
Applicant:	Mr J O’Connor
Respondent:	Mr P Bourke KC
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
WALKER JA:

The applicant pleaded guilty in the County Court to 37 charges of theft[1] (charges 1–11, 14–18, 22, 23, 26, 28–30, 34–37, 39, 41–43 and 45–51); four charges of attempting to obtain a financial advantage by deception[2] (charges 12, 38, 40 and 44); two charges of obtaining property by deception[3] (charges 13 and 20); four charges of handling stolen goods[4] (charges 19, 21, 27 and 52); two charges of burglary[5] (charges 24 and 32); one charge of theft of a firearm[6] (charge 25); one charge of damaging property[7] (charge 31); one charge of obtaining a financial advantage by deception[8] (charge 33); and one charge of the aggravated offence of recklessly exposing an emergency worker to risk by driving[9] (charge 53).
[1]Contrary to s 74(1) of the Crimes Act 1958.
[2]Contrary to ss 321M and 82(1) of the Crimes Act 1958.
[3]Contrary to s 81 of the Crimes Act 1958.
[4]Contrary to s 88 of the Crimes Act 1958.
[5]Contrary to s 76 of the Crimes Act 1958.
[6]Contrary to s 74AA(1) of the Crimes Act 1958.
[7]Contrary to s 197(1) of the Crimes Act 1958.
[8]Contrary to s 82 of the Crimes Act 1958.
[9]Contrary to s 317AF of the Crimes Act 1958.
Charges 25 and 53 were rolled up charges. Charge 53 was also a category 2 offence within the meaning of s 3(1) of the Sentencing Act 1991. Being a category 2 offence, s 5(2H) of the Sentencing Act obliged the sentencing judge to impose a period of imprisonment on that charge without a community correction order…

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 Burke v The King

Details

AGLC: Burke v The King [2023] VSCA 233
Case: [2023] VSCA 233
Decision Date: 25 September 2023

CaseChat Overview and Summary

In the case of Burke v The King, the appellant, Burke, sought an extension of time to seek leave to appeal against his sentence. The appellant was convicted of numerous serious criminal offences, including theft, deception, handling stolen goods, burglary, and firearms offences, among others. The total effective sentence imposed on the appellant was five years and six months, with a non-parole period of three years and four months. The appellant's primary contention was that he had a reasonable prospect of success in appealing the severity of his sentence.

The court was tasked with determining whether the appellant's application for an extension of time to seek leave to appeal was futile. The court examined the appellant's prospects of success on appeal, considering whether there was a reasonable prospect that the total effective sentence would be reduced or that a less severe non-parole period would be imposed. The court also considered the appellant's reasons for the delay in seeking leave to appeal and whether those reasons were sufficient to warrant an extension of time.

Upon review, the court concluded that the appellant's application for leave to appeal had no reasonable prospect of success. The court found that the appellant's total effective sentence was not excessive and that there was no reasonable prospect that a less severe non-parole period would be imposed. The court also found that the appellant's reasons for the delay in seeking leave to appeal were insufficient to warrant an extension of time. As a result, the court refused the appellant's application for an extension of time to seek leave to appeal.

The court's final orders were that the application for an extension of time to seek leave to appeal was dismissed. The appellant was not granted leave to appeal against his sentence, and the original sentence remained in place. The court's decision was based on a thorough analysis of the appellant's prospects of success on appeal and the reasons for the delay in seeking leave to appeal. The court found that the appellant's application for an extension of time was futile and that it was not in the interests of justice to grant the extension.

Orders