CRIMINAL LAW – Appeal – Sentence – Practice and procedure – Second or subsequent appeal against sentence based on fresh evidence – Court of Appeal has no power to entertain further application for leave to appeal against sentence after previous application has been refused on the merits – Criminal Procedure Act 2009, Part 6.3, ss 278, 280, 281 – R v GAM (No 2) (2004) 9 VR 640, Grierson v The King (1938) 60 CLR 431, Postiglione v The Queen (1997) 189 CLR 295, Lowe v The Queen (2015) 249 A Crim R 362 considered.
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Counsel
Applicant:
In person
Respondent:
Ms R Sharp SC with Mr M Wilson
Amici curiae:
Mr J Gullaci SC with Mr J Murphy
Solicitors
Applicant:
Respondent:
Commonwealth Director of Public Prosecutions
THE COURT:
Introduction
On 9 April 2014, the applicant was found guilty of conspiracy to possess a commercial quantity of an unlawfully imported border controlled drug, MDMA (‘ecstasy’).[1] After a plea in mitigation, the trial judge sentenced the applicant to 11 years’ imprisonment, and fixed a non-parole period of eight years.
[1]Criminal Code (Cth), ss 11.5(1) and 307.5(1).
By notices accepted for filing on 15 and 16 July 2014 respectively, the applicant sought leave to appeal against both his conviction and sentence. This Court heard both those applications on 25 May 2015 — the applicant chose to be unrepresented by a legal practitioner — and, after a full hearing on the merits, refused them both on 26 June 2015.[2] The High Court refused an application for an extension of time to bring an application for special leave to appeal on 17 June 2016.[3]
[2]Visser v The Queen [2015] VSCA 168 (Weinberg, Priest and Beach JJA). By a signed Notification of Result of Appeal or Application, dated 29 June 2015, given in accordance with r 2.39 of the Supreme Court (Criminal Procedure) Rules 2008, the Registrar gave notice to the applicant that his applications for leave to appeal against conviction and sentence had been refused by the Court.
The applicant requires an extension of time in order to bring his application for special leave to appeal. To grant an extension would be futile. No question of law suitable for the grant of special leave is raised by the application. There is no reason to doubt the correctness of the decision below. Special leave is refused.
On 22 September 2016, the applicant lodged a petition for mercy with the Attorney-General for the Commonwealth, which the Attorney-General referred 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.
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Details
AGLC
Visser v The King [2023] VSCA 10
Case
[2023] VSCA 10
Decision Date
CaseChat Overview and Summary
The appellant, Visser, appealed against his sentence in the Supreme Court of Victoria, arguing that the sentence was manifestly inadequate. The case involved a dispute over the appropriateness of the sentence imposed on the appellant following his conviction for various criminal offences. The Court of Appeal was tasked with determining whether it had the jurisdiction to entertain the appellant's second application for leave to appeal against his sentence, given that a previous application had been refused on the merits.
The central legal issue was whether the Court of Appeal had the authority to consider a second application for leave to appeal against a sentence after a previous application had been rejected. The appellant contended that the Court of Appeal should exercise its discretion to entertain the application based on the fresh evidence presented. The Crown argued that the Court of Appeal was without jurisdiction to entertain the application under the provisions of the Criminal Procedure Act 2009.
The Court of Appeal held that it did not have the jurisdiction to entertain the appellant's second application for leave to appeal against his sentence, as the previous application had already been refused on the merits. The Court found that the statutory provisions of the Criminal Procedure Act 2009, particularly sections 278, 280, and 281, did not allow for further applications for leave to appeal against a sentence after a previous application had been dismissed. The Court referenced authorities such as R v GAM (No 2), Grierson v The King, Postiglione v The Queen, and Lowe v The Queen to support its conclusion that the Court of Appeal was precluded from considering the appellant's second application for leave to appeal. As a result, the Court of Appeal dismissed the appellant's application for leave to appeal against his sentence.