Gilbert v The King - [2025] VSCA 83

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0126

MARK GILBERT	Applicant
v
THE KING	Respondent

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JUDGE:	Taylor JA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 March 2025
DATE OF JUDGMENT:	28 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 83
JUDGMENT APPEALED FROM:	[2024] VCC 347 (Judge Tinney)

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APPLICATION FOR EXTENSION OF TIME IN WHICH TO SEEK LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Sentence – Theft, dangerous driving causing serious injury and fail to render assistance – Whether judge unilaterally aggravated the factual basis of the plea by going behind the agreed summary – Whether judge impermissibly relied upon opinion evidence – No error – Leave for extension of time refused.

Madafferi v The Queen [2017] VSCA 302, applied.

Weininger v R (2002) 212 CLR 629; Ristevski v The Queen (2011) 31 VR 93; R v Bunning [2007] VSCA 205; R v Lowe [2009] VSCA 268; DPP v Walsh (a pseudonym) [2018] VSCA 172; Qayyum v The King [2025] VSCA 14, referred to.

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Counsel
Applicant:		Mr D Rofe
Respondent:		Mr J Dickie
Solicitors
Applicant:	Chester Metcalfe & Co
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA:

An indictment filed in the County Court charged the applicant with theft, dangerous driving causing serious injury and fail to render assistance. On 5 December 2023 the applicant entered a plea of guilty to the related summary offence of unlicensed driving. On 15 March 2024 he entered a plea of guilty to each of the charges on the indictment. On 21 March 2024 he was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Theft[1]	10 years	12 months	4 months
2	Dangerous driving causing serious injury[2]	5 years	3 years 6 months	2 years
3	Fail to render assistance[3]	1200 penalty units or 10 years	4 years 3 months	Base
Related Summary Offences
5	Drive a motor vehicle without holding a driver licence[4]	60 penalty units or 6 months	3 months	N/A
Total Effective Sentence:		6 years 8 months
Non-Parole Period:		5 years 2 months
Pre-sentence Detention Declared:		716 days
Section 6AAA Statement:		Total Effective Sentence 8 years Non Parole-Period 6 years 6 months
Other Relevant Orders: With conviction order that all Victorian licences and/or permits held by the offender be cancelled and that the offender be disqualified from obtaining any such licence or permit for a period of: 1. 1 year (charge 1) 2. 4 years (charge 2) 3. 8 years (charge 3) from 21/03/2024.

[1]Contrary to s 74(1) of the Crimes Act 1958.

[2]Contrary to s 319(1A) of the Crimes Act 1958.

[3]Contrary to ss 61(1)(b), 61(3) of the Road Safety Act 1986.

[4]Contrary to s 18(1)(a) of the Road Safety Act 1986.

The applicant now seeks leave for an extension of time in which to file an application for…

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 Gilbert v The King

Details

AGLC: Gilbert v The King [2025] VSCA 83
Case: [2025] VSCA 83
Decision Date: 28 April 2025

CaseChat Overview and Summary

In the matter of Gilbert v The King, the applicant sought an extension of time to appeal against a sentence determined by a single judge, pursuant to Section 315 of the Criminal Procedure Act 2009. The applicant, Gilbert, was convicted of theft, dangerous driving causing serious injury, and failing to render assistance. The primary issue before the court was whether the judge had erred in unilaterally aggravating the factual basis of the plea by going beyond the agreed summary, and whether the judge had improperly relied on opinion evidence. The applicant argued that the judge had overstepped the bounds of the plea agreement and improperly relied on opinion evidence, which should have been excluded.

The court examined the arguments put forward by the applicant and assessed whether the judge had indeed gone beyond the agreed summary of facts or had improperly relied on opinion evidence. The court found that there was no error in the judge's approach. The judge's consideration of the facts and evidence was within the scope of the plea agreement, and the use of opinion evidence was permissible under the circumstances. The court further noted that the principles set out in Madafferi v The Queen were followed, and that the sentence imposed was within the appropriate range. The court found that the applicant's arguments did not establish a sufficient ground for an extension of time.

Accordingly, the court refused the applicant's application for an extension of time to seek leave to appeal against the sentence. The court's decision was based on a thorough examination of the legal principles and the facts of the case, and it upheld the original sentence imposed by the judge. This decision reinforces the importance of adherence to the plea agreement and the proper use of opinion evidence in criminal sentencing matters.

Orders