Vlach v The Queen - [2012] NSWCCA 192

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Vlach v R [2012] NSWCCA 192
Hearing dates: 29 August 2012
Decision date: 29 August 2012
Before: Macfarlan JA
Price J
McCallum J
Decision:
Leave to appeal refused.

Catchwords: Criminal Law - appeal - sentencing - aggravated break enter and steal - whether extension of time to appeal should be granted - parity - whether sentence manifestly excessive - no likelihood of appeal succeeding - extension of time refused.
Legislation Cited: Crimes Act 1900 s 112(1), s 112(2) s 527C(1)
Crimes (Sentencing Procedure) Act 1999
s 11
Criminal Appeal Act 1912 s 10(1)(b)
Drugs Misuse and Trafficking Act 1985
s 10(1), s 11(1)
Cases Cited: Edwards v R [2009] NSWCCA 199
Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Beattie [2000] NSWCCA 201
R v Ilbay [2000] NSWCCA 251
R v Kollas and Mitchell [2002] NSWCCA 491
Category: Principal judgment
Parties:
Representation: Mr Vlach (unrepresented in person)
Ms H Wilson (Crown)
Mr S Kavanagh (Solicitor of Public Prosecutions)

File Number(s): 2009/66605
Decision under appeal

Citation:

R v Vlach

Before:

Zahra SC DCJ

File Number(s):

2009/66605

Judgment

Macfarlan JA: I ask Price J to deliver the first judgment.

Price J: George Vlach applies for an extension of time for leave to appeal against the sentence imposed upon him in the District Court for a charge of aggravated break, enter and steal contrary to s 112(2) Crimes Act 1900. The circumstance of aggravation was that the applicant committed the offence in company with two other persons.

Mr Vlach appears in person on this application.

The applicant entered a plea of guilty to the charge in the Local Court and adhered to his plea in the District Court. On 13 August 2010, he was sentenced by Zahra SC DCJ (the judge) to imprisonment of 3 years 4 months to commence on 15 July 2009, with a non-parole period of 1 year 4 months. The non-parole period expired on 14 November 2010 and the applicant was released to parole. The full term of the sentence has about 2 ½ months remaining, and expires on 14 November 2012.

The maximum penalty for an offence contrary to s 112(2) Crimes Act is imprisonment for 20 years. A standard non-parole period of 5 years imprisonment has been prescribed.

At the applicant's request, the judge took into account when imposing sentence seven other offences on a Form 1. Other than two driving offences, those offences are; possess prohibited drug (methylamphetamine) possess prohibited drug (cannabis leaf) - both offences being under s 10(1) Drugs Misuse and Trafficking Act 1985; possess equipment to administer drug under s 11(1) Drug Misuse and Trafficking Act; goods in custody under s 527C(1) Crimes Act and break enter and steal under s 112(1) Crimes Act. It is…

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 Vlach v The Queen

Details

AGLC: Vlach v The Queen [2012] NSWCCA 192
Case: [2012] NSWCCA 192
Decision Date: 29 August 2012

CaseChat Overview and Summary

The appellant, Vlach, appealed against his sentence following a conviction for aggravated break enter and steal. The Court of Appeal of the Supreme Court of Victoria considered the matter. The primary issue before the court was whether to grant an extension of time for the appellant to lodge his appeal against his sentence. A secondary issue was whether the sentence was manifestly excessive and whether there was a likelihood of the appeal succeeding.

The court found that the appellant had not demonstrated any exceptional circumstances to warrant an extension of time to lodge his appeal. The appellant's argument for parity with other similarly situated offenders was rejected as the court found no basis for such a comparison. The court also considered the sentence to not be manifestly excessive and found that there was no likelihood that the appeal would succeed. Therefore, the court refused the application for an extension of time to appeal and dismissed the appeal against sentence.

Orders