Georgiou v The King - [2022] VSCA 220

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0010

TERRENCE GEORGIOU	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL JA and KIDD AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 September 2022
DATE OF JUDGMENT:	18 October 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 220
JUDGMENT APPEALED FROM:	[2016] VCC 1892 (Her Honour Judge Pullen)

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CRIMINAL LAW – Application for extension of time for leave to appeal against conviction and sentence – Applicant pleaded guilty to stalking, obtaining property by deception and possessing child pornography over five years ago – Whether applicant may be relieved of guilty pleas – No proper basis for undermining guilty pleas – By pleading guilty, applicant admitted to all elements of offences – Insufficient explanation for delay in bringing application for leave to appeal – Application for extension of time refused.

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Counsel
Applicant:		In person
Respondent:		Mr C B Boyce KC with Ms B Goding
Solicitors
Applicant:	--
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
KIDD AJA:

On 14 November 2016 the applicant was convicted on his plea of guilty to three charges. The first charge concerned stalking, the second obtaining property by deception and the third involved possession of child pornography. On 7 December 2022 the applicant was sentenced to a total effective sentence of 3 years and 8 months’ imprisonment. A non-parole period of 2 years and 4 months was set. The structure of the sentence imposed by the sentencing judge is reflected in the following table:

Charge on Indictment

Offence

Max Penalty

Sentence

Cumulation

1 Stalking 10 years 3 years Base

2 Obtaining Property by Deception 10 years 10 months 5 months

3 Possessing Child Pornography 5 years 7 months Base

Total Effective Sentence: 3 years and 8 months

Non-Parole Period: 2 years and 4 months

Pre-sentence Detention Declared: 413 days

Section 6AAA Statement:
Total Effective Sentence 6 years

Non Parole-Period 4 years and 6 months

Other Relevant Orders:

Orders for forfeiture and destruction of exhibits

The applicant now applies to this court for an extension of time in which to bring an application for leave to appeal against both his conviction and sentence. The application is more than five years out of time. The relevant principles as to when an application for extension of time will be entertained were summarised in Madafferi v The Queen as follows:
The applicant carries the burden of persuading this Court that an extension of time should be granted. When considering the application, it must be acknowledged that time limits exist for sound reasons. Among those reasons is the desirability of achieving finality in criminal proceedings with reasonable expedition (consistently, of course, with the imperative of correcting substantial miscarriages of justice). The Court has a broad discretion whether to grant an extension of time, scrutiny being invited of the reasons for the delay and the merits of the proposed appeal. Although the exercise of the discretion whether to extend time must always be informed by what the interests of justice…

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 Georgiou v The King

Details

AGLC: Georgiou v The King [2022] VSCA 220
Case: [2022] VSCA 220
Decision Date: 18 October 2022

CaseChat Overview and Summary

The applicant in this case pleaded guilty to multiple charges, including stalking, obtaining property by deception, and possessing child pornography, over five years ago. The applicant sought an extension of time to apply for leave to appeal against both their conviction and sentence. The matter was heard in the High Court of Australia, which had to determine whether the applicant could be excused from their guilty pleas and whether there was a sufficient explanation for the delay in bringing the application for leave to appeal.

The court had to decide whether there was a proper basis for the applicant to be relieved of their guilty pleas, given that by pleading guilty, they admitted to all the elements of the offences. The court also needed to assess whether there was a sufficient explanation for the delay in bringing the application for leave to appeal. The applicant argued that they were misled by their legal representative, which led to the delay. However, the court found that the applicant's explanation was insufficient to justify the delay.

The court held that there was no proper basis for the applicant to be relieved of their guilty pleas, as they had admitted to all the elements of the offences by pleading guilty. The court also found that the applicant had not provided a sufficient explanation for the delay in bringing the application for leave to appeal. The applicant's argument that they were misled by their legal representative was not accepted, as the court found that the applicant had not acted diligently in bringing the application for leave to appeal. The application for extension of time was, therefore, refused.

The High Court dismissed the application for an extension of time for leave to appeal against conviction and sentence. The court found that there was no proper basis for the applicant to be relieved of their guilty pleas and that the explanation for the delay in bringing the application for leave to appeal was insufficient. The applicant's application was dismissed, and the conviction and sentence stood.

Orders