R v Tsoungarakis

[2004] VSCA 96

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 261 of 2003

THE QUEEN

v.

ANDREW TSOUNGARAKIS

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APPLICATION FOR EXTENSION OF TIME

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JUDGES:	WARREN, C.J., CALLAWAY and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF APPLICATION:	20 May 2004
DATE OF ORDER:	20 May 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 96

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Criminal law – Application for extension of time to give notice of application for leave to appeal against sentence – Applicant advised he could wait until  co-offenders sentenced – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr S.E. Grant	C. Marshall & Associates

WARREN, C.J.:        I invite Vincent, J.A. to state his reasons first.

VINCENT, J.A.: 

1. The applicant pleaded guilty in the County Court at Melbourne to one count of trafficking in a drug of dependence and the breach of a suspended sentence that had been imposed upon him by the same sentencing judge on 28 August 2001.  That sentence was one of imprisonment for two years and six months, the service of all save 155 days of that term being suspended for a period of three years.

1. After hearing a plea in mitigation of penalty, he was, on 18 December 2002, sentenced to imprisonment for a period of four years in respect of the trafficking count and 755 days, which represented the balance of the restored suspended sentence, and was, his Honour directed, to be served cumulatively.  His Honour fixed a non-parole period of four years and six months on the total effective sentence so created.

1. The applicant now seeks an extension of the time within which to lodge a notice of application for leave to appeal against those sentences.  He contends that there is a manifest disparity between the sentence imposed upon him for the trafficking count and those subsequently imposed upon three co-offenders, Rosemary Anne Barboussas, Michael Craig Miller and Con Nicholas Barboussas, by the same judge on 8 September 2003.  He also asserts that the sentence imposed upon him was manifestly excessive in all of the circumstances and, in particular, he contends that the sentencing judge erred in ordering that the restored sentence of imprisonment be served wholly cumulatively upon the other sentence imposed.

1. Unfortunately, transcripts of the reasons of his Honour for the sentences passed upon the co-offenders have not been made available to the Court.  It is therefore not possible to make any real assessment of the prospects of success of the proposed application on the basis of the presence of some unjustified disparity of treatment between the applicant and those co-offenders. 

1. The applicant has filed an affidavit in relation to this application in which he states that one of the reasons that he failed to lodge a notice within the prescribed time was that he had been advised by his legal representatives after sentence was imposed, that if he wished to have his situation compared with that of his co-offenders on appeal, he would be advised to wait until they had been sentenced.

1. I am prepared to accept, for present purposes, that that may well have been the case, and that the applicant could have operated under an understandable misapprehension as to the proper course to adopt. If that represented the sole basis upon which the applicant may have acted, as a matter of fairness to him, I would have regarded the situation as relatively straightforward. However, in his affidavit he made reference to a concern that the lodgment of a notice by him may have precipitated an appeal by the Director of Public Prosecutions against the sentence imposed on his partner, Deirdre Walsh. There is a distinct possibility that that consideration weighed heavily upon him and may indeed, as Mr McArdle has urged this Court to accept, have represented a reason for a decision not to appeal at all. Nevertheless, the possibility cannot be ignored that, as I have earlier mentioned, he may have been operating under a misapprehension based upon the advice given to him as to the availability of an opportunity to appeal after the co-offenders had been sentenced. Of course, as Mr McArdle who appears for the Crown pointed out, if he had actually decided not to appeal at that time, that explanation would not be of particular value to him. It is also unfortunate that the material before this Court does not enable a clear view of the situation to be formed. Bearing in mind the inadequacy of that material, I am of the view that, in order to avoid any possible unfairness to the applicant, he should have the opportunity to have the question, whether leave to appeal should be granted, considered by a judge on an application under s.582 of the Crimes Act.

1. Accordingly, I would propose that the application for an extension of time within which to lodge a notice of application for leave to appeal should be granted to enable this to be done.

WARREN, C.J.

1. I agree.

CALLAWAY, J.A.: 

1. I also agree. In conformity with Rule 2.06 of the Supreme Court (Criminal Procedure) Rules 1998, the applicant has filed a notice of application for leave to appeal against sentence in addition to his application for an extension of time. Mr Grant has asked for an opportunity to reconsider the grounds of appeal. That being so, I propose that the time within which the applicant may give notice of application for leave to appeal be extended to seven days from today to enable him, if so advised, to file a fresh notice.

WARREN, C.J.: 

1. The order of the Court is as follows:

The Court orders that the time within which the applicant may give notice of application for leave to appeal against sentence be extended to 4 p.m. on 27 May 2004.

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