Jason Dirbass v The Queen - [2018] VSCA 305

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0203

JASON DIRBASS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	HARGRAVE and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 November 2018
DATE OF JUDGMENT:	8 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 305
JUDGMENT APPEALED FROM:	[2017] VCC 1190

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CRIMINAL LAW – Application for extension of time – Leave to appeal – Sentence – Theft of motor vehicle – Whether time accumulated in error to sentence – No grounds of appeal – Application for extension of time refused – Sentencing Act s 15.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person	--
For the Crown	Mr B L Sonnet	Mr J Cain, Solicitor for Public Prosecutions

HARGRAVE JA
T FORREST JA:

The applicant has filed an application for an extension of time to file and/or serve an application for leave to appeal. Judge Tinney in the County Court sentenced the applicant on 28 July 2017 to 12 months’ imprisonment for the offence of theft of a motor vehicle. His Honour declared that four months of the 12 months sentence were to be served cumulatively upon the sentence already being served, but declined to fix any non-parole period. The previous sentence was imposed on 30 June 2017 by Judge Davis. On that occasion, the applicant was sentenced to a total effective sentence of 3 years and 9 months’ imprisonment with a minimum non-parole period of 2 years and 6 months. 375 days of presentence detention were declared as taken into consideration.

Having been sentenced by Judge Tinney on 28 July 2017, the applicant had until Friday 25 August 2017 to file a notice of application for leave to appeal against his sentence, as required by s 279 of the Criminal Procedure Act 2009. His extension of time application was filed late by 13 months and 10 days. Neither the single page affidavit nor the extension of time application itself disclose reasons for the failure to file in a timely fashion. We infer from the amended applicant’s written case that he is confused about the operation of Judge Tinney’s sentence and has sought to appeal to this Court on the basis of that confusion. We shall return to this issue.

In oral argument today, the applicant explained his delay on the basis that the effect of Judge Tinney’s sentence on his existing sentence was not explained to him until 17 August this year. Assuming this to be the case, and given that the applicant was represented before Judge Tinney at the time he was sentenced, it is regrettable that his counsel did not then explain the effect of Judge Tinney’s sentence to him on that day.

Legal principles

The principles which govern extension of time applications are as follows:

(1) The prescription by the statute of a time limit for giving notice is intended to secure finality and compliance. It is intended to be complied with in the ordinary case.

(2) Extension of time is a…

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 Jason Dirbass v The Queen

Details

AGLC: Jason Dirbass v The Queen [2018] VSCA 305
Case: [2018] VSCA 305
Decision Date: 8 November 2018

CaseChat Overview and Summary

Jason Dirbass sought leave to appeal against his conviction and sentence for the theft of a motor vehicle. The matter was heard in the High Court of Australia. The primary issue before the court was whether the time that the appellant had spent in custody, which he contended had been accumulated in error, should be taken into account for the purpose of determining whether he was eligible for leave to appeal. Additionally, the court needed to decide whether there were any grounds of appeal that warranted the grant of leave.

The court examined the relevant provisions of the Sentencing Act and found that the time accumulated in custody was not in error. The appellant's contention that his time in custody should be taken into account for the purpose of determining his eligibility for leave to appeal was rejected. The court also found that there were no grounds of appeal that warranted the grant of leave. The court noted that the appellant had not demonstrated any error of law or fact that would warrant an appeal. The court held that the appellant's application for leave to appeal was without merit and refused the application. The court also refused the appellant's application for an extension of time to file his application for leave to appeal. The court held that the appellant had failed to demonstrate any exceptional circumstances that would warrant an extension of time. The appellant's application for an extension of time was therefore also refused.

The High Court dismissed the appellant's application for leave to appeal and his application for an extension of time. The court held that the appellant had not demonstrated any error of law or fact that would warrant an appeal or any exceptional circumstances that would warrant an extension of time. The court's decision was final and binding.

Orders