| SUPREME COURT OF VICTORIA COURT OF APPEAL | |
| S EAPCR 2024 0140 | |
| JOVAN CULIBRK | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | WALKER, TAYLOR and OSBORN JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 June 2025 |
| DATE OF JUDGMENT: | 23 June 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 137 |
| JUDGMENT APPEALED FROM: | [2024] VCC 141 (Judge Murphy) |
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CRIMINAL LAW – Appeal – Conviction – Multiple offences of burglary and theft – Whether prosecution could prove applicant’s involvement in any of the offending – Use of coincidence evidence – Whether judge erred in finding coincidence evidence was significantly probative – Whether use of coincidence evidence occasioned unfair prejudice – No error established – Application for extension of time in which to seek leave to appeal refused.
Evidence Act 2008, ss 98, 101.
CGL v DPP (2010) 24 VR 486, followed.
PG v The Queen [2010] VSCA 289; CW v The Queen [2010] VSCA 288; R v Dupas (No 2) (2005) 12 VR 601; Pfennig v The Queen (1995) 182 CLR 461, referred to.
CRIMINAL LAW – Appeal – Sentence – Whether 3 years and 9 months’ sentence for attempted aggravated burglary manifestly excessive – Extensive and relevant prior criminal history – On bail at time of offence – Serious example of serious offence – Sentence not manifestly excessive – Application for extension of time in which to seek leave to appeal refused.
DPP v Meyers (2014) 44 VR 486; Clarkson v The Queen (2011) 32 VR 361, referred to.
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| Counsel | |||
| Applicant: | Mr T Battersby | ||
| Respondent: | Ms E Ruddle KC with Ms E Allan | ||
| Solicitors | |||
| Applicant: | Sarah Pratt and Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
WALKER JA
TAYLOR JA
OSBORN JA:
On 22 November 2023, the applicant was convicted by a jury empanelled in the County Court of attempted burglary, attempted aggravated burglary, theft of a motor vehicle, four charges of burglary and four charges of theft. The offending related to six incidents occurring between 9 and 21 June 2022.
He was sentenced on 20 February 2024,[1] as follows:
[1]DPP v Culibrk [2024] VCC 141 (Judge Murphy) (‘Reasons’).
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Attempted burglary[2] | 5 years[3] | 2 years | 4 months |
| 2 | Burglary [4] | 10 years | 3 years | 4 months |
| 3 | Theft[5] | 10 years | 2 years | Nil |
| 4 | Theft of a motor vehicle[6] | 10 years | 1 year | 1 month |
| 5 | Attempted aggravated burglary[7] | 20 years[8] | 3 years 9 months | Base |
| 6 | Burglary | 10 years | 3 years | 4 months |
| 7 | Theft | 10 years | 2 years | Nil |
| 8 | Burglary | 10 years | 3 years | 4 months |
| 9 | Theft | 10 years | 2 years | Nil |
| 10 | Burglary | 10 years | 3 years | 4 months |
| 11 | Theft | 10 years | 2 years | Nil |
| Total Effective Sentence: | 5 years 6 months’ imprisonment | |||
| Non-Parole Period: | 3 years 3 months | |||
| Pre-sentence Detention Declared: | 607 days | |||
[2]Contrary to ss 321M and 76 of the Crimes Act 1958.
[3]See s 321P of the Crimes Act 1958.
[4]Contrary to…
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- Culibrk v The King [2025] VSCA 137
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- [2025] VSCA 137
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CaseChat Overview and Summary
The court examined the use of coincidence evidence, considering whether it was significantly probative and whether its use caused unfair prejudice to the appellant. The court concluded that there was no error in the trial judge’s assessment of the coincidence evidence. The court found that the evidence was indeed probative and did not occasion unfair prejudice to the appellant, thereby affirming the trial judge's findings. Additionally, the court assessed the sentence imposed and found that, given the appellant's extensive criminal history and the seriousness of the offences, the sentence was not manifestly excessive.
The court dismissed the appeal against conviction and sentence, and also refused the application for an extension of time in which to seek leave to appeal. The reasoning and outcome were grounded in the relevant sections of the Evidence Act 2008 and various judicial precedents, ensuring that the legal principles were applied consistently with established case law.
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Evidence
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