R v Gopurenko

Case [2017] QCA 242

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gopurenko [2017] QCA 242

PARTIES:

R
v
GOPURENKO, Stephen John
(applicant)

FILE NO/S:

CA No 111 of 2017
DC No 72 of 2014
DC No 129 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Maroochydore – Date of Sentence: 29 April 2014 (Long SC DCJ)

DELIVERED ON:

17 October 2017

DELIVERED AT:

Brisbane

HEARING DATE:

4 September 2017

JUDGES:

Sofronoff P and Fraser JA and Boddice J

ORDER:

The application for an extension of time to appeal the sentence be refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – where the applicant was sentenced in the County Court in Victoria to a period of imprisonment of five years and four months, with a minimum non-parole period of four years – where the applicant was released on parole on 21 March 2013 with a period of 700 days of imprisonment remaining outstanding – where the applicant was immediately extradited to Queensland – where the applicant was subsequently sentenced in Queensland on 29 April 2014 to an effective head sentence of six years imprisonment with a parole eligibility date set at 21 March 2015 – where on 10 October 2014 the Court of Appeal refused an application for leave to appeal against that sentence finding the sentence imposed was not manifestly excessive – where on 5 May 2017 an application for an extension of time within which to reopen the sentence of 29 April 2014 was refused by the District Court on the basis there was no demonstrated errors of substance in the sentencing procedure, and there was nothing calling for the alteration of that sentence – where the applicant now seeks an extension of time within which to appeal against the sentence imposed on 29 April 2014 – where the applicant relies on the ground that the sentencing judge acted upon the incorrect assumption that time served under the Queensland sentence would constitute time served under the earlier sentence of imprisonment imposed in Victoria – where the applicant submits the extension should be granted as the previous application for leave to appeal was not decided on its merits as it was decided, under a similar misapprehension as to the effect on the sentence imposed in Victoria – where the applicant’s delay in bringing the application is explained by the applicant only becoming aware of the correct position of the Victorian correctional authorities in July 2016 – whether an extension of time within which to appeal against sentence should be granted – whether a previous Court of Appeal ruling in relation to the sentence stands as a jurisdictional bar to granting leave to appeal – whether the application is an abuse of process

Lowe v The Queen (2015) 249 A Crim R 362; [2015] NSWCCA 46, considered
R v Ankers [2003] QCA 211, considered
R v Brown [2003] QCA 372, considered
R v…

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AGLC
R v Gopurenko [2017] QCA 242
Case
[2017] QCA 242
Decision Date

CaseChat Overview and Summary

The case of R v Gopurenko involved the applicant seeking an extension of time within which to appeal against a sentence imposed by the District Court in Queensland. The applicant had previously been sentenced in Victoria and was extradited to Queensland where he was sentenced to imprisonment for armed robbery and fraud offences. The applicant contended that the sentencing judge had acted upon an incorrect assumption regarding the time to be served under the Queensland sentence in relation to his earlier Victorian sentence. The Court of Appeal previously refused an application for leave to appeal against the Queensland sentence, finding the sentence was not manifestly excessive. The applicant argued that the previous application was not decided on its merits due to a similar misapprehension, and he only became aware of the correct position in July 2016.

The legal issues before the court were whether an extension of time to appeal should be granted, whether the previous Court of Appeal ruling stood as a jurisdictional bar to the current application, and whether the application was an abuse of process. The court noted that a refusal of an earlier application for leave to appeal did not constitute a jurisdictional bar, and that the applicant's second application was without merit as there had been no change in circumstances since the earlier application was determined. The court also found that the sentence imposed was lenient, and that the applicant would have been required to serve a significantly longer sentence if the Victorian offences had been considered to have occurred in Queensland.

The court concluded that the application for an extension of time to appeal the sentence should be refused. It held that the previous application for leave to appeal was not decided on a misapprehension, and that the applicant had not identified any change of circumstance that would warrant a different outcome. The Victorian parole Board had not determined whether time served under the Queensland sentences would be taken into account in relation to the balance of the Victorian sentence, but the court noted that even if it was not, the sentence imposed was substantially less than the applicant would have been required to serve in any event. The court found that the applicant's application was an abuse of process as an impermissible attempt to re-litigate a case which had been conclusively determined on the merits.

The final orders of the court were that the application for an extension of time to appeal the sentence be refused. The court held that the sentence imposed was lenient and that any necessity to serve the whole of that sentence was due to the applicant having offended in a similar way whilst on parole. The court found that the applicant had been sentenced to a total of 11 years four months imprisonment, with parole eligibility after six years, substantially less than the at least eight years he would otherwise have been required to serve before any parole eligibility, if the head sentence had been 10 years imprisonment.

Orders

Orders of the court

The application for an extension of time to appeal the sentence be refused.

Background

Background to the litigation

The applicant submits an extension of time should be given as the previous application for leave to appeal was not decided on its merits, being decided under a similar misapprehension as to the effect of the applicant’s sentence in Victoria and the delay in the bringing of the application is explained by the applicant only being advised of the correct position in July 2016, after which he made an unsuccessful attempt to reopen his sentence in the District Court.Background The applicant was born on 6 November 1977. He has a lengthy criminal history, in Queensland and Victoria. In 2008 he committed a number of offences of dishonesty in Victoria. Shortly after the commission of those offences he relocated to Queensland. Whilst in Queensland he committed the fraud offence, as well as the armed robberies and common assaults.Offences The conviction of three offences of armed robbery related to three separate occasions, 19 February 2009, 23 February 2009 and 4 March 2009. On each occasion, the applicant used a replica handgun to threaten bank staff. The offence of common assault arose out of the robbery on 23 February 2009. A customer was pushed out of the way. The offences of armed robbery were described as being frightening as the applicant used the replica as if it was a pistol in order to menace patrons and staff. The incidents were said to be likely to have long-term impacts. There was reference to a victim impact statement. In all over $40,000 was obtained from these robberies. The two offences of fraud related to events between 27 December 2008 and 23 February 2009. The applicant used a purchase order book from a previous employer to dishonestly obtain hardware items on 15 occasions which he then subsequently pawned. The total value of the goods was $14,230.66. The applicant received a total of $3,190 from pawning those items.Sentencing hearing A factor taken into account at the time of the applicant’s sentence on 29 April 2014 was that the applicant had, on 12 October 2009, been sentenced in the County Court in Victoria to a period of five years and four months imprisonment, with a minimum non‑parole period of four years in respect of an offence of armed robbery committed on 19 March 2009. Again a replica pistol was used to threaten staff. The applicant was also convicted at that time of offences of theft and obtaining property by deception. That related to the use of the same purchase order book, between 19 November 2008 and 24 November 2008, on five occasions to make purchases to obtain hardware items to a value of $2,559.73. The applicant had also obtained money from the sale of tools which did not exist in April 2008 and dishonestly obtained equipment on 1 May 2008. In sentencing the applicant, the sentencing judge noted that the offences committed by the applicant in Queensland were similar to the offences committed by the applicant in Victoria. It was also noted that the applicant had spent a substantial period of time in custody in Victoria in relation to the Victorian offences. During that custody, the applicant completed various rehabilitation programs. Upon his release, he had been extradited to Queensland such that the balance of his Victorian sentence remained outstanding.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Victorian sentences were taken into account at the time of the original hearing. Whilst at that sentence hearing there was an understanding the sentences imposed in Queensland would run concurrently with the Victorian sentence, it does not follow the sentences imposed would have been different if that premise proves incorrect. On the comparable authorities the sentence imposed was lenient. Further, the Victorian parole authorities have yet to determine what, if any, further portion of the remaining sentence in Victoria the applicant will be required to serve in Victoria.Consideration In R v Upson (No 2)[2] this Court held:“In the case of an application for leave to appeal against sentence where a previous application was refused on the merits of the proposed appeal, the mere repetition or refinement of the original grounds of appeal, the formulation of different grounds, or reliance upon new evidence, does not take the case outside the general rule that the Court lacks jurisdiction to hear the second application.”[2](2013) 229 A Crim R 275 at [25]. In R v Williams[3] this Court observed that in Lowe v Queen[4] the New South Wales Court of Appeal held that a refusal of an application for leave to appeal did not constitute a jurisdictional bar to the making of a second application. However, it was found unnecessary to consider whether R v Upson (No 2) remained applicable, as even if there was no jurisdictional bar the second application for leave to appeal against sentence sought to be argued in Williams was an abuse of process as an impermissible attempt to re-litigate a case which the Court had conclusively determined on the merits.[3][2016] QCA 204 at [25].[4](2015) 249 A Crim R 362. For similar reasons, it is unnecessary to reconsider the correctness of R v Upson (No 2) in the present case. Absent that jurisdictional bar, the applicant’s second application for leave to appeal is without merit. There is no identifiable change of circumstance that presently exists which is contrary to those considered by that Court of Appeal. The Victorian parole Board has not determined whether time served under the Queensland sentences will be taken into account in relation to the balance of the Victorian sentence. In any event, as was observed at the sentencing hearing, if the applicant had been sentenced in Queensland on the basis the Victorian offences had also occurred in Queensland, he would have been sentenced to imprisonment of at least 10 years with a consequent automatic declaration of the conviction of a serious violent offence necessitating he serve 80 per cent of that sentence. Even if the time he was required to serve in Queensland is not counted for in respect of the Victorian sentence, the sentence the applicant received, allowing for that Victorian sentence was substantially less than he would have been required to serve in any event. The applicant has been sentenced to a total of 11 years four months imprisonment, with parole eligibility after six years, substantially less than the at least eight years he would otherwise have been required to serve before any parole eligibility, if the head sentence had been 10 years imprisonment. Any necessity to serve the whole of that sentence is due to the applicant having offended in a similar way whilst on parole.