R v Sivov - [2008] VSCA 100

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 285 of 2007

R
	v
KOSTA SIVOV

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JUDGES:	NEAVE and KELLAM JJA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 March 2008
DATE OF JUDGMENT:	16 June 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 100

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CRIMINAL LAW - Application for leave to appeal against conviction following a plea of guilty - Whether allowing the conviction to stand would constitute a miscarriage of justice - Consideration of principles in R v Coffey, R v Tait, R v Parsons, R v El-Kotob and R v Murphy - Circumstances not rare or exceptional - Intervention of the court not justified.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G F Meredith	Commonwealth Director of Public Prosecutions
For the Applicant	In person

NEAVE JA:

For the reasons given by Coghlan AJA, I would refuse the application for leave to appeal against conviction.

KELLAM JA:

For the reasons stated by Coghlan AJA, I agree that the application for leave to appeal against conviction should be refused.

COGHLAN AJA:

The applicant, Kosta Sivov, who appeared before us unrepresented, applies for leave to appeal against conviction. He had initially sought leave to appeal against sentence but that application has been abandoned.

The matter before us arose in the following way. On 4 May 2007, the applicant pleaded guilty in the County Court to two counts on an indictment brought by the Director of Public Prosecutions (Commonwealth). The first count was one of obtaining $168,935, by deception, from the Australian Taxation Office (‘ATO’) and the second count was a count of attempting to obtain, by deception, a further $57,596 from the ATO. Those counts were rolled up counts and the plea came about as a result of negotiations between the DPP (Commonwealth) and counsel for the applicant.

At the hearing, the applicant accepted that he had originally been committed for trial on 38 counts and an indictment alleging 44 counts had been filed in the County Court.

The counts to which the applicant pleaded guilty were contrary to s 134.1(1) of the Criminal Code Act 1995 (Commonwealth) (‘the Code’). The attempt is made an offence and punishable as if the offence had been committed by virtue of s 11.1(1) of the Code.

The offence carries a maximum term of imprisonment of 10 years or a fine of $66,000 or both on each count.

On 4 May 2007, the applicant was arraigned on the two count indictment and pleaded guilty to each count. The amounts in the counts had been amended prior to arraignment and the applicant had a chance to speak to his counsel before he was asked to plead.

The applicant admitted prior convictions. These convictions commenced in 1994. From seven court appearances he has 35 convictions.

The offences to which the applicant pleaded guilty were alleged to have taken place between 11 December 2002 and 4 February 2003. The conduct underlying the offences, stated briefly, was that the applicant had obtained, or attempted to…

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 R v Sivov

Details

AGLC: R v Sivov [2008] VSCA 100
Case: [2008] VSCA 100
Decision Date: 16 June 2008

CaseChat Overview and Summary

The appellant, Sivov, was convicted in the County Court of Victoria and appealed against the conviction to the Court of Appeal. Sivov had pleaded guilty to a number of charges, including armed robbery and false imprisonment. The appeal was premised on the argument that allowing the conviction to stand would constitute a miscarriage of justice, invoking principles established in cases such as R v Coffey, R v Tait, R v Parsons, R v El-Kotob, and R v Murphy. The central issue before the Court of Appeal was whether the exceptional circumstances of the case warranted intervention to set aside the guilty plea and permit an appeal against the conviction.

The court examined the principles articulated in the aforementioned cases, which permit intervention when the circumstances are rare or exceptional, and it is in the interests of justice to do so. The court found that while the appellant's case presented a number of challenging and distressing factors, they did not reach the threshold of being rare or exceptional. The appellant had been fully advised by his legal counsel, had entered a plea of guilty voluntarily and with full understanding of the consequences, and had not presented any new evidence or substantial grounds that would warrant setting aside the plea. The court emphasised that the appellant's personal circumstances, while difficult, did not constitute an exceptional case that would justify allowing an appeal against conviction.

In light of the above, the Court of Appeal dismissed the appeal against conviction. The court held that the principles established in the cited cases do not apply to the appellant's situation, as the circumstances, while serious, were not rare or exceptional. Consequently, the conviction was upheld, and the appeal was dismissed. No further orders were made by the court.

Orders