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]
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…
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- Case
- [2018] VSCA 44
- Decision Date
CaseChat Overview and Summary
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.
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