Lupco Slaveski v The Queen - [2018] VSCA 44

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0018

LUPCO SLAVESKI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, PRIEST JA and KIDD AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 February 2018
DATE OF JUDGMENT:	2 March 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 44
JUDGMENT APPEALED FROM:	[2015] VSC 416

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CRIMINAL LAW – Appeal – Sentence – Extension of time – Contempt of court – Fresh evidence – New psychiatric opinion – New diagnostic label – Substance of diagnosis unchanged – Effect of condition known at time of sentence – Significant discount given – Appropriate recognition of causal connection – Whether subsequent improvement in condition relevant - No miscarriage of justice – No prospects of success – Application for extension of time refused – R v Verdins (2007) 16 VR 269 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr T R Alexander with Mr P J Smallwood	Marcevski Lawyers
For the Respondent	Mr J Langmead QC with Ms M Norton	Victorian Government Solicitors Office

MAXWELL P

PRIEST JA
KIDD AJA:

Summary

In August 2015, the applicant was convicted on nine charges of contempt of court. He was sentenced to 23 months’ imprisonment, with a non-parole period of 15 months. He now seeks leave to appeal against sentence. He also seeks an extension of time to file notice of his application for leave.

After sentence was imposed, the applicant purported to file an application for leave to appeal against conviction and sentence. He had, however, left Australia by then, in order to evade the execution of a warrant for his arrest made by a judge of this Court.[1] On 18 September 2015 this Court refused leave to appeal without an adjudication on the merits.[2]
[1]Slaveski v Attorney-General (Vic) [2015] VSCA 31 [68].
[2]Slaveski v The Queen [2015] VSCA 264.

There is one proposed ground of appeal. It is that this Court should receive, as fresh evidence, the expert opinions of a consultant psychiatrist, Dr Anthony Cidoni, set out in reports dated respectively 25 February, 23 March and 1 November 2017. It is said that this evidence sheds fresh light on the psychiatric condition from which the applicant suffered at the time of the offending and that consideration of the evidence should lead this Court to impose a lesser sentence.

For reasons which follow, we would refuse the application for an extension of time. There is, of course, the threshold difficulty of the earlier, failed application for leave and the very long delay since then. More fundamentally, however, the ground of appeal has no prospects of success.[3] The proposed expert evidence simply does not meet the requirements for fresh evidence.[4] As explained below, the sentencing judge was fully informed of the relevant features of the applicant’s psychiatric condition and of its causal connection with the offending.[5] Her Honour expressly stated that she had reduced by 50 per cent the sentence she would have imposed on the applicant but for his psychiatric condition.[6]
[3]See…

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: [2018] VSCA 44
Decision Date: 2 March 2018

CaseChat Overview and Summary

In this case, the appellant, Lupco Slaveski, sought to appeal against his sentence on the basis of a new psychiatric opinion that provided a new diagnostic label for his mental condition, which was known at the time of sentencing. The appeal was brought before the court, which had to decide whether the new diagnostic label constituted fresh evidence and whether the extension of time to appeal should be granted. Additionally, the court needed to determine whether the appellant's condition had improved to the extent that it was relevant to the sentencing process, and whether there was a miscarriage of justice as a result of the original sentence.

The court found that the new diagnostic label did not amount to fresh evidence as the substance of the diagnosis remained unchanged. The court recognised that the appellant's condition was known at the time of sentencing and had been given significant discount, but held that the subsequent improvement in the appellant's condition was not relevant. The court also found that there was no miscarriage of justice and that the prospects of success for the appeal were minimal. Therefore, the application for extension of time was refused.

The court drew upon the principles set out in R v Verdins (2007) 16 VR 269, which state that an extension of time to appeal should only be granted in exceptional circumstances where there has been a miscarriage of justice or where the applicant has a real prospect of success on the appeal. The court held that neither of these criteria was satisfied in this case.

In conclusion, the court dismissed the appeal and refused the application for an extension of time. The court held that the new diagnostic label did not amount to fresh evidence and that the appellant's condition had already been taken into account at the time of sentencing. The court also found that there was no miscarriage of justice and that the prospects of success for the appeal were minimal.

Orders