James Cardona v The Queen - [2021] VSCA 9

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0253

JAMES CARDONA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 February 2021
DATE OF JUDGMENT:	8 February 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 9
JUDGMENT APPEALED FROM:	[2020] VCC 1422 (Judge C Ryan)

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CRIMINAL LAW – Sentence – Application for extension of time within which to seek leave to appeal – Reckless conduct endangering persons (1 charge) and theft of motor vehicle (1 charge) – Plea of guilty – Prior and subsequent offending – Matters not auguring well for prospects of rehabilitation – Assistance given in respect of unrelated offending – Whether TES of 15 months with NPP of 9 months manifestly excessive – Not reasonably arguable that sentence manifestly excessive – Futile to grant extension of time – Application for extension of time refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C K Wareham	James Dowsley & Assoc
For the Respondent	Mr P L Bourke SC	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P

BEACH JA:

On 24 February 2020, the applicant pleaded guilty to one charge of reckless conduct endangering persons[1] (charge 1) and one charge of theft of a motor vehicle[2] (charge 2). On 8 September 2020, following a plea hearing, the applicant was sentenced as follows:
[1]Contrary to s 23 of the Crimes Act 1958.
[2]Contrary to s 74 of the Crimes Act.

Charge Offence Maximum Sentence Cumulation

1. Reckless conduct endangering persons 5 years 12 months Base

2. Theft of motor vehicle 10 years 6 months 3 months

Total effective sentence: 15 months

Non-parole period: 9 months

Pre-sentence detention: 18 days

Section 6AAA statement: 3 years with a non-parole period of 18 months

On 3 December 2020, the applicant filed a notice of application for leave to appeal against his sentence, contending that the sentence imposed was manifestly excessive. As the application was out of time, on 9 December 2020, the applicant filed an application for an extension of time within which to file and serve his application for leave to appeal. The application for an extension of time is opposed by the respondent. The respondent submits that the applicant’s proposed ground of appeal is not reasonably arguable and it would thus be futile to grant the applicant the extension of time he seeks.

Circumstances of the offending

On 19 July 2018, a co-offender, Matthew Jaeger, stole a four wheel drive and trailer from a farm property at Wheatsheaf. On the following day, the applicant was captured on CCTV both as a passenger and a driver of the stolen vehicle at different times during that evening.

At about 12:20 am on 21 July 2018, with Jaeger driving the stolen four-wheel drive and the applicant as the passenger, the applicant was involved in a police pursuit in Melton South. The applicant filmed and recorded the pursuit on his mobile phone. The recording shows the applicant during the pursuit saying,…

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.

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Details

Case: [2021] VSCA 9
Decision Date: 8 February 2021

CaseChat Overview and Summary

In the case of James Cardona versus The Queen, Cardona was found guilty of two charges: reckless conduct endangering persons and theft of a motor vehicle. The matter was heard and determined by the relevant Australian court. Cardona, having pleaded guilty, sought an extension of the time within which he could apply for leave to appeal against his sentence. The court had to consider the nature and circumstances of the offences, Cardona’s criminal history, and whether the total effective sentence of 15 months with a non-parole period of 9 months was manifestly excessive.

The court was required to assess whether it was reasonably arguable that the sentence was manifestly excessive and whether granting an extension of time would not be futile. This involved a detailed analysis of Cardona’s criminal record, both prior and subsequent to the current offences, and the potential impact of these offences on his prospects for rehabilitation. Additionally, the court had to consider the assistance Cardona provided in relation to an unrelated offence, which could influence the appeal's prospects.

The court concluded that it was not reasonably arguable that the sentence was manifestly excessive, given the seriousness of the offences and Cardona’s extensive criminal history. The court found that granting an extension of time would be futile as there were no substantial grounds to support an appeal against the sentence. Consequently, the application for an extension of time was refused.

Orders