Kovacevic v The Queen

[2021] VSCA 49

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0256

NATASHA KOVACEVIC	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KAYE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 March 2021
DATE OF JUDGMENT:	11 March 2021	Second Revision: 22 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 49
JUDGMENT APPEALED FROM:	DPP v Kovacevic (Unreported, County Court of Victoria, Judge Dean, 29 June 2020)

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APPLICATION FOR 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 – Application for leave to appeal – Sentence – Applicant pleaded guilty to five charges of obtaining financial advantage by deception – Applicant misappropriated $631,697.84 from employer through 126 fraudulent transactions conducted over four years – Sentenced to 12 months’ imprisonment with 2 year community corrections order – Applicant’s two year old son living in prison with her – Whether sentence manifestly excessive – Whether judge should have ordered wholly non-custodial sentence – Leave to appeal refused – Markovic v The Queen (2010) 30 VR 589.

CRIMINAL LAW – Appeal – Procedure – Application for extension of time to file application for leave to appeal against sentence – Ground of appeal not reasonably arguable – Exceptional circumstances – Family hardship – Extension of time granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms F Gerry QC with Ms J Kretzenbacher	C. Marshall & Associates
For the Respondent	Mr J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

KAYE JA:

1. The applicant pleaded guilty, in the County Court, to five charges of obtaining a financial advantage by deception.  On 29 June 2020, she was sentenced, on those charges, to an aggregate term of 12 months’ imprisonment together with a community corrections order for a period of 2 years, that order to commence on the completion of the term of imprisonment. 

1. On 11 December 2020, the applicant filed an application for leave to appeal against sentence on the ground that it is manifestly excessive. The applicant was required, by ss 275 and 279 of the Criminal Procedure Act 2009, to commence that application within 28 days of sentence.  The substantive application for leave to appeal against sentence was thus commenced almost five months out of time.  Accordingly, the applicant has also made application for an extension of time within which to seek leave to apply for leave to appeal against sentence. 

1. It is appropriate, first, to deal with the application for an extension of time.  The principles that apply to such an application were discussed by the High Court in Kentwell v The Queen.[1]  For present purposes, they were sufficiently summarised in the following passage from the judgment of this Court in Barber v The Queen:[2]

The principles, that apply to an application for an extension of time, have been stated in a number of decisions of this Court.  The applicant bears the burden of persuading the Court that an extension of time should be granted in his…