SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0015
| YU SUN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | BEACH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 24 August 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 233 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1400 (Judge Brookes) |
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CRIMINAL LAW – Sentence – Application for extension of time within which to seek leave to appeal against sentence – Application for leave to appeal against sentence – Charges of stalking, aggravated burglary, and damaging property – TES of 3 years and 7 months, with NPP of 30 months – Whether sentence of 15 months (6 months to be served cumulatively) on stalking charge manifestly excessive – Not reasonably arguable that sentence or order for cumulation manifestly excessive – No reasonable prospect that total effective sentence would be reduced – Futile to grant extension of time sought – Application for extension of time refused.
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| REPRESENTATION: | Counsel | Solicitors |
| For the Applicant | Ms K Ballard | Emma Turnbull Lawyers |
| For the Respondent | Mr G Buchhorn | Ms A Hogan, Solicitor for Public Prosecutions |
BEACH JA:
The applicant pleaded guilty in the County Court to one charge of stalking,[1] one charge of aggravated burglary[2] and one charge of damaging property.[3] On 4 September 2020, following a plea hearing on 22 July 2020, the applicant was sentenced as follows:
[1]Contrary to s 21A of the Crimes Act 1958.
[2]Contrary to s 77 of the Crimes Act 1958.
[3]Contrary to s 197 of the Crimes Act 1958.
Charge
Charges on Indictment
Maximum Penalty
Sentence
Cumulation
1
Stalking
10 years
15 months
6 months
2
Aggravated burglary
25 years
3 years
Base
3
Damaging property
10 years
3 months
1 month
Total effective sentence
3 years 7 months
Non-parole period
30 months
Pre-sentence detention declared
298 days
Section 6AAA declaration
5 years with a non-parole period of 3 years 6 months
The applicant now seeks an extension of time within which to seek leave to appeal against sentence and, if the extension of time is granted, leave to appeal against sentence. The applicant’s proposed ground of appeal is:
The sentence imposed on the applicant in respect of charge 1 is manifestly excessive.
PARTICULARS
The sentencing judge:
(a) failed to properly assess the objective gravity of the offending;
(b) failed to have proper regard for current sentencing practices; and
(c) failed to give sufficient weight to matters in mitigation.
The application for an extension of time within which to seek leave to appeal against sentence requires consideration of the merits of the applicant’s proposed appeal and the applicant’s reasons for not filing his application for leave to appeal within the prescribed time.[4] The respondent submitted that the extension of time application should be refused, because the applicant’s proposed ground of appeal is not reasonably arguable. Additionally, it submitted that the explanation for the applicant’s delay is unsatisfactory. I will commence my analysis by considering the merits of the applicant’s proposed appeal.
[4]See Kentwell…
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- AGLC
- Yu Sun v The Queen [2021] VSCA 233
- Case
- [2021] VSCA 233
- Decision Date
CaseChat Overview and Summary
The court thoroughly examined the proportionality of the sentence in relation to the offence of stalking. It concluded that the sentence was not manifestly excessive, as it was within the range that could be considered appropriate for such an offence. Furthermore, the court found that there was no reasonable prospect that the total effective sentence would be reduced upon appeal. It was determined that it would be futile to grant the extension of time sought by Yu Sun, as there was no reasonable arguable basis for the appeal. Therefore, the court refused the application for an extension of time and also dismissed the application for leave to appeal against the sentence.
In summary, the court held that the sentence imposed on Yu Sun was not manifestly excessive and that there was no reasonable prospect of a successful appeal. Consequently, the court refused the application for an extension of time to seek leave to appeal and also dismissed the application for leave to appeal against the sentence. This decision reinforces the principle that appeals against sentence should be based on a reasonable arguable case, and where such a case does not exist, the appeal will not proceed.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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