Yu Sun v The Queen

[2021] VSCA 233

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:

1. 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

1. 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.

1. 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…