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Judgment 1THE COURT: The applicant was convicted after trial of one count of sexual intercourse without consent, contrary to s61I of the Crimes Act 1900 (NSW). The maximum penalty for this offence is imprisonment for 14 years. Pursuant to s54A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) the offence attracts a standard non-parole period of 7 years. 2On 1 May 2009 the applicant was sentenced by Neilson DCJ to imprisonment for 9 years and 4 months, with a non-parole period of 7 years, commencing 3 June 2008 and expiring 2 June 2015. 3The applicant seeks an extension of time within which to seek leave to appeal against the sentence imposed on him. The single ground of appeal relied upon by the applicant is: Ground 1: His Honour "erred by treating the provision of the standard non-parole period as having determinative significance in sentencing" the applicant. Factual Background The offence 4The complainant met the applicant about a week before the commission of the offence. The victim had just turned 17 and the applicant was aged 21. They were introduced by mutual friends at the BP service station at Warwick Farm. 5On that occasion the applicant asked the victim to go for a walk, which she interpreted as meaning to engage in some sexual activity. The victim declined the invitation. Later in the conversation, the applicant asked the victim to give him a "head job", which she also refused. 6On Tuesday, 9 October, 2007 approximately six days later, the victim had a fight with her father who told her to leave the house. She telephoned her then boyfriend, Rami Lafta, who suggested that they go to a hotel or motel in the Liverpool area. The victim agreed because she did not have anywhere else to stay. She made her way by public transport to the Liverpool Railway Station where she was met by Rami Lafta and two other men, Nazir and Fadi. The four travelled to the Grandstand Motel at Warwick Farm where the victim, Rami and Nazir stayed overnight. 7The victim woke the next day at approximately 11.30am. At about 1pm Nazir's cousin arrived, stayed about an hour and when he left, Rami went with him leaving the victim alone in the room with Nazir. 8At about 4pm the applicant knocked on the door of the motel and was admitted into the room by Nazir. The applicant said that he wished to talk to the victim. The victim kept asking what he wished to talk about but he kept saying that he wished to talk to her. Eventually the victim agreed to talk to him alone and Nazir left the room. 9When Nazir left, the applicant locked the door. He tried to kiss the victim and kneeling on the bed undid his belt and trousers and exposed his penis. He asked the victim to suck his penis, which she refused to do. He repeated that request on a number of occasions and on each occasion the victim refused. 10A struggle then ensued with the applicant trying to remove clothing from the victim's lower half, pulling down her pants and underwear. There was a further struggle over that. At one stage the victim managed to get to her feet, but she was pushed back onto the bed by the applicant. She was trying to get to the door to get out of the room when the applicant told her that she could not do anything. 11Eventually the applicant forced the victim's legs apart and, having pulled down her pants and underpants from her rear area, penetrated her from behind. She said that when he inserted his penis into her vagina "it really hurt". The victim continued to ask the applicant not to do it but he persisted with thrusting and after a few minutes, ejaculated into her vagina. The applicant made no attempt to wear a condom and made no inquiry as to whether the victim was on any form of contraception. 12After he had ejaculated, the applicant withdrew from the victim's vagina and said "See it wasn't that hard was it". The victim then went into the bathroom, locked the door, sat on the toilet and started to cry. She was in there for a few minutes when the applicant knocked on the door and said "Hurry up I need to go to the toilet". The victim washed her face and left the bathroom. 13When she left the bathroom, she found that Nazir was present. Eventually she was taken by Nazir to the Liverpool Railway Station. She caught a train to Campbelltown Railway Station and went to the Campbelltown Police Station where she made a complaint about what had occurred. Background to this application 14After having been sentenced, the applicant filed a Notice of Intention to Appeal in relation to his sentence on 25 May 2009. On 22 June 2009 the applicant made an application for legal aid in respect of the appeal. 15The applicant consulted with a solicitor who said that he would get an opinion from a barrister as to whether the applicant had a good chance of winning his appeal. In June 2010 the solicitor advised him that the barrister did not think that he had good prospects of success on his appeal and that Legal Aid NSW would probably not support his appeal. 16In due course Legal Aid NSW refused the applicant's application for assistance. The applicant appealed from that refusal. On 25 October 2010 Legal Aid NSW (presumably the Legal Aid Review Committee), rejected the appeal and confirmed that it would not provide legal aid for his appeal as it did not consider that he had reasonable prospects of success "in accordance with the Legal Aid merit test". 17On 30 March 2011 Legal Aid NSW processed a further application for legal aid from the applicant dated 16 February 2009, and on 9 August 2011 Legal Aid NSW again confirmed the refusal to provide legal aid for the appeal because "the application was not considered to have reasonable prospects of success in accordance with the Legal Aid merit test". 18Between 4 March and 6 March 2013 the applicant's closed Legal Aid file was reviewed to determine whether the sentence might be susceptible to a review before the courts, due to "Muldrock type errors". This was a reference to the decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. On 27 March 2013 a letter was sent to the applicant advising that his case had been reviewed and inviting him to make an application for legal aid so that further work could be conducted. In due course this application was prepared and filed in the Court of Criminal Appeal Registry on behalf of the applicant on 28 June 2013. 19In order to understand what is meant by the expression "Muldrock error" it is necessary to say something about the background to that decision. 20In 2003 standard non-parole periods were introduced as part of the sentencing law of NSW. Part 4 Div 1A (entitled "Standard Non-Parole Periods") was inserted into the CSP Act by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002. The provision created standard non-parole periods for several offences in a table located at the end of s54D ("the Table"). The Table only applied to offences committed on or after 1 February 2003. In 2007 and 2008 other offences were added to the Table. 21The standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table (s54A(1)). It "represents an offence in the middle of the range of objective seriousness for offences in the Table" (s54A(2)). When imposing a sentence of imprisonment for a standard non-parole period offence, "the court is required to impose the standard non-parole period unless it determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period" (s54B(2)). A court is obliged to make a record of its reasons for increasing or reducing the standard non-parole period. It must identify in those reasons each factor that it took into account (s54B(4)). 22The decision of R v Way [2004] NSWCCA 131; 60 NSWLR 168 was the leading authority on the question of how the standard non-parole provisions in Pt 4 Div 1A should be applied. An Application for Special Leave to appeal from the decision in R v Way was refused by the High Court in 2005. Thereafter, R v Way was applied repeatedly by the courts in this State. 23R v Way held the following: (1) Under s54B of the Act when sentencing for an offence identified in the Table, after trial a sentencing judge must ask and answer the following question: "Are there reasons for not imposing the standard non-parole period?" (2) Where a sentencing judge decides that the standard non-parole period ought not to be imposed, after trial or where the offender had pleaded guilty, the sentencing discretion should be exercised in accordance with established sentencing practices (3) Division 1A of Pt 4 operates to provide a guidepost or benchmark against which the case in hand could be compared. It does not require a departure from the intuitive or instinctive synthesis approach to sentencing. (4) Where the standard non-parole period is varied, due to s54B(4), reasons for the variation must be recorded expressly in the Remarks on Sentence and each factor taken into account must be specifically identified. 24Seven years after R v Way, the High Court held in Muldrock that R v Way was wrongly decided. The Full Bench of the High Court in a single judgment held: "25 ... It was an error [of the court in R v Way] to characterise s54B(2) as framed in mandatory terms. The court is not required when sentencing for a Div 1A offence to commence by asking whether there are reasons for not imposing the standard non-parole period nor to proceed to an assessment of whether the offences fell within the midrange of objective seriousness." 25The court said at [26]: "26 ... It is a mistake to give primary, let alone determinative, significance to so much of s54B(2) as appears before the word "unless"." At [32] the Court said: "32 ... The Court of Criminal Appeal erred by treating the provision of the standard non-parole period as having determinative significance in sentencing the appellant." 26What is clear is that the Muldrock decision weakened the link between the standard non-parole period and the sentence imposed in a particular case and diminished the role accorded to the standard non-parole period. 27The following can be extracted from the High Court decision in Muldrock: (1) The fixing of the non-parole period is only one part of the larger task of passing a sentence. Fixing the appropriate non-parole period is not to be treated as if it were the necessary starting point or the only important end point in framing a sentence to which Div 1A applies. (2) Section 54B(2), read with sections 54B(3) and 21A of the CSP Act requires an approach to sentencing for Div 1A offences that is consistent with the approach to sentencing described by McHugh J in Markarian v The Queen [2005] HCA 25; 228 CLR 357. (3) The Court said at [27]: "Section 54B(2) and s54B(3) oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period. The latter requires that content be given to its specification as "the non-parole period for an offence in the middle of the range of objective seriousness" [s54A(2)]. Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offender. It is to be determined wholly by reference to the nature of the offending." (4) A court is not required to commence with an assessment of whether the offence falls in the middle range of objective seriousness (by reference to a hypothesised offence) and then to ask whether there are matters which warrant a longer or shorter non-parole period. (5) Section 54B(4) requires the Court to make a record of its reasons for increasing or reducing the standard non-parole period. This does not require the Court "to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period or the need to classify the objective seriousness of the offending" (at [29]). 28It follows that what has been referred to as "Muldrock error" involves a sentence judgment which traverses those statements of principle by the High Court. 29It was common ground between the applicant and the Crown that when sentencing the applicant, the sentencing judge had given determinative effect to the standard non-parole period so that error of the kind identified in Muldrock had occurred. 30The Crown did not accept that, pursuant to s6(3) of the Criminal Appeal Act 1912 (NSW), any lesser sentence to that imposed by his Honour was warranted in law. Delay 31Pursuant to s5(1)(c) Criminal Appeal Act 1912 (the Act), any appeal against sentence by a person convicted on indictment can occur only with leave of the Court. Section 10(1)(a) of the Act prescribes a time limit of 28 days after the sentence for the giving of the Notice of Intention to apply for leave to appeal. Section 10(1)(b) provides: " (b) The court may, at any time, extend the time within which the notice under paragraph (a) is required to be given to the court or, if the rules of court so permit, dispense with the requirement for such a notice." 32Section 10(1)(c) requires the appeal to be made in accordance with the rules of court. Rule 3A(1) Criminal Appeal Rules provides (relevantly) that a Notice of Intention to apply for leave to appeal has effect for 6 months from the day of filing the notice. Rule 3A(2) enables the Court to extend the period for which a Notice of Intention to apply for leave to appeal has effect. Rule 3B(1) provides that a Notice of an Application for Leave to Appeal may only be given: "(a) If a ... Notice of Intention to apply for leave to appeal has been given with respect to the ... sentence - within the period during which that Notice of Intention has effect, or (b) If a ... Notice of Intention to apply for leave to appeal has not been given with respect to the ... sentence - within the period of three months after the ... sentence." 33In the present case the sentence was imposed on 1 May 2009. The Notice of Intention to Appeal, filed 25 May 2009, lapsed. Accordingly, an extension of over 4 years is sought. 34The Crown opposed the granting of an extension of time. It did so on a number of bases: The grant of an extension of time would be futile in that a change in the law does not provide a proper basis for an appeal. The grant of an extension offended the principle of finality. No proper explanation had been given for the delay. The grant of an extension would not have adequate regard to the position of the victim. On the facts, the application for leave to appeal against sentence was without merit. 35The Crown relied upon the comprehensive summary of principle and case law in Etchell v R [2010] NSWCCA 262; 205 A Crim R 138 where Campbell JA (with whom Latham and Price JJ agreed) said: "18 In Edwards v R [2009] NSWCCA 199 Johnson J (with whom Allsop P and Kirby J agreed) considered principles relevant to extension of time under section 10(1)(b). "8 The Court has a discretion with respect to extension of time under s10(1)(b) Criminal Appeal Act 1912. In exercising that discretion, the Court has regard to the prospects of success on the application for leave to appeal itself: R v Young [1999] NSWCCA 275 at [30] ff. The Court will usually require some satisfactory explanation as to why an appeal was not brought within the time allowed, especially if the delay is considerable: R v Beattie [2000] NSWCCA 201 at [17]. ... 13 The principle of finality of litigation is relevant on an application such as this. Although it may be, as here, that the Crown cannot point to any actual prejudice because of the delay in bringing the application, there is a public interest in avoidance of delay, and the finality of litigation, in the area of sentencing as with litigation generally. In many cases, the prospect of sentence being reopened long after the event may impact adversely upon victims of crime." 19 In R v Unger [1977] 2 NSWLR 990 Street CJ (with whom Begg and Ash JJ agreed) considered an application for an extension of time in which to appeal against conviction, in circumstances where a regulation had been held invalid after the conviction. That regulation formed part of the primary judge's legal reasoning to the conclusion that the matters with which the Applicant had been charged were a contravention of the law. While that fact situation is far removed from the present, the principles in accordance with which Street CJ declined to grant the extension bear upon any application for extension of time to appeal. His Honour noted, at 993, the decision in R v Ramsden (1972) Cr L Rev 547 that: "... alarming consequences would flow from any general policy of permitting the re-opening of cases by granting a substantial extension of time on the ground that a decision of a court of authority had removed a widely held misconception as to the prior state of the law." 20 At 995 his Honour observed that there was a consideration of general principle that, when applied to extensions of time to appeal, had the effect that those alarming consequences did not arise: "The trial having been concluded and the time for appeal having gone by, the general principle is that the matter is regarded as at an end. It is to be borne in mind that the effect of a conviction in a criminal court no less than a verdict and judgment in a civil court, is to merge in that conviction or judgment, as the case may be, all of the material upon which it proceeded. Dixon J as the Chief Justice then was, said in Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73: "... if he has already been convicted, then because his liability has merged in the conviction, it no longer depends upon the law under which it arose, and it does not lapse with the revocation of the law. The conviction has become the source of his liability for his offence, and the conviction continues in force because its operation does not depend upon the law creating the offence, but upon the authority belonging to a judgment or sentence of a competent Court." This concept of merger is no blind, arbitrary proposition. It is founded deeply in the fabric of the philosophy of the common law. Although in pure theory the overruling or modification by judicial decision of previous conceptions of legal principle does no more than correct a departure from the timeless perfection of the law, the plain fact is that legal principle is constantly evolving and being moulded in the light of the changing and developing social context. Recognizing this, there has always been an unwillingness to permit the re-opening of past decisions. Indeed the process of appeal, either civil or criminal, is a comparatively recent and statutory concept - it finds no basis in the common law itself." 21 In R v Gregory [2002] NSWCCA 199 Hodgson JA (with whom Levine and Simpson JJ agreed) observed at [38]: "I accept that an important consideration as to whether an extension of time for an appeal should be granted is the consideration of what justice requires in all the circumstances. However, plainly that question is not itself answered simply by the consideration that, if such a point were now taken at a trial and an appeal was now brought within time, the appeal would be allowed and a new trial ordered." 22 After considering the statements of Street CJ in Unger, Hodgson JA continued, at [41]: "... an important factor in a decision as to whether an extension of time should be granted is whether the interests of justice require it; but the interests of justice must take into account not just the interests of the applicant, but also those of the Crown (and the community represented by the Crown), and of the administration of law generally. There are many factors relevant to those matters, including the powerful considerations supporting the finality of judicial decisions." 23 There will sometimes be considerations concerning the interests of justice that arise concerning an application to extend the time for appeal against a conviction that do not apply to an application for leave to appeal against sentence. In particular, if there was a prospect that a successful appeal against conviction would result in a retrial rather than an acquittal, practical difficulties about the availability of witnesses, the freshness of recollection of those witnesses who were available, and the appropriateness of putting witnesses through the ordeal of giving evidence once more would need to be taken into account. Those considerations are not present in an application to extend time to appeal against sentence, at least when it is not suggested that any significant new facts bearing upon the appropriate sentence have arisen between the time the sentence was imposed and the time the matter comes before the appellate court. 24 Even so, the "powerful considerations supporting the finality of judicial decisions", to which Hodgson JA referred, apply to applications to extend the time for appeal against sentence. As well, when a time limit has been laid down through legislation, it would be subverting the intention of the legislation for this court to consider the matter as though it were an application for leave to appeal against sentence brought within time, and if such an application would succeed, regard that as a sufficient reason for extending the time. I recognise that "exceptional circumstances" are not, in so many words, expressly made part of the statutory scheme for granting an extension of time to appeal (Arja v R [2010] NSWCCA 190 at [4] - [5], cf McCall v R [2010] NSWCCA 174 at [5] - [7]). Even so, it seems to me that the need to give weight to the factors I have just mentioned in operating the statutory scheme must call for something beyond the presence of factors that would be sufficient to result in a sentence being varied if an application for leave to appeal against sentence were brought within time. 25 Consistently with the principles involved in the cases I have just been citing, it is appropriate, in deciding whether to grant leave to appeal out of time, to consider the grounds upon which the appeal is sought to be brought in a more summary fashion than would be done on an application for leave to appeal that was brought within time. As well, in the present case that also needs to be done in the context of the particular reasons the Applicant gives to explain the delay." 36In response the applicant submitted that in this case there were no "alarming consequences" as were referred to in R v Ramsden (1972) Cr L Rev 547. He submitted that the decision of Muldrock only has significance for a particular class of offender. The Standard Non Parole Period Review Team within Legal Aid NSW had identified only 38 cases where no appeal had been heard, where it was considered that there was a potential Muldrock error and where a lesser sentence was warranted in law. 37The applicant noted that Street CJ in Unger had modified the words of Lord Greene MR in Re Berkeley (1945) Ch 1. The applicant submitted that there was an important qualification in the statement of principle by Lord Greene MR when his Lordship said at p3 - 4: "I find no difficulty in reconciling the statement that the different decision is not necessarily a ground for enlarging the time with the statement that the court can enlarge the time if it is just in the circumstances to do so. It seems to me that the principle to be extracted is that it is not sufficient for a party to come to the court and say that a subsequent decision of a superior court has determined that the principle of law on which his case was decided was wrong. The court will say to him: "that bald statement is not enough. What are the facts? What is the nature of the judgment? Who are the parties affected? What, if anything, has been done under it? And so forth. In other words, the whole of the circumstances must be looked at. If the court, in the light of those circumstances, considers it just to extend time, then it will do so. That seems to me to be the proper principle ..." 38The applicant, while accepting that finality was an important consideration, submitted that it was necessary for the "whole of the circumstances" to be considered, including the reason for the delay, the length of the delay and the strength of the grounds of appeal (Young v R [1999] NSWCCA 275 at [30]; Douar v R [2005] NSWCCA 455;159 A Crim R 154 at [53]; Edwards v R [2009] NSWCCA 199; Ng v R [2011] NSWCCA 227; 214 A Crim R 191 at [5]; Ward v R [2013] NSWCCA 46 at [8]). The applicant accepted that the interests of justice included the interests of the Crown (representing the community) as well as the interests of the applicant. 39The applicant did not accept that it was necessary for him to establish "exceptional circumstances" before leave should be granted to extend time to appeal where there had been considerable delay. The applicant submitted that there was no justification in Lawrence v R (1980) 1 NSWLR 122 (Nagle CJ at CL and Yeldham J) for importing a requirement for "exceptional circumstances" to be satisfied in such circumstances. The applicant noted that in Young v R, Smart AJ (with whom Studdert and Dunford JJ agreed) said in relation to an earlier provision which was in identical terms, that it conferred "an unfettered discretion upon the court to extend the time to appeal ...". Smart AJ in that case observed that in Lawrence, Nagle CJ at CL and Yeldham J before refusing leave to extend time indicated that they were satisfied that no injustice had been caused to the applicant and that no miscarriage of justice had occurred. 40The applicant noted that although Lawrence was cited with approval in McCall v R [2010] NSWCCA 174, more recently in Arja v R [2010] NSWCCA 190 Basten JA said: "4 The power of the Court to extend time is discretionary, but is unfettered. The statement in Lawrence should be understood as operating where "any considerable delay has occurred" and should be understood as a warning to those who delay not to expect any automatic grant of an indulgence. In McCall, the Chief Judge noted that leave would not be granted in the absence of any satisfactory explanation for the delay and where no merit had been demonstrated in the proposed grounds: at [7]. 5 Those are undoubtedly two critical factors in this case, as in most cases. Reference to "exceptional circumstances" will usually be undesirable, as it suggests the imposition of a fetter on the exercise of discretion which is not to be found in the statutory scheme. 6 As Latham J has explained, the explanation advanced in the present case is not satisfactory, nor has the merit of the proposed appeal been demonstrated. In these circumstances the appropriate course is to refuse the application for an extension of time." The applicant accepted that in Arja Latham J (with whom Hall J agreed) did not express an opinion on whether the test of "exceptional circumstances" needed to be satisfied before an extension of time could be granted. 41In summary, the applicant submitted that the matters raised by the Crown did not constitute a barrier to this Court granting an extension of time and intervening where the justice of the case warranted that course. He submitted that when determining whether an extension of time ought to be granted, this Court should take into account all relevant factors including the merits of the proposed grounds of appeal. Consideration 42There have been recent statements of principle in relation to the importance of the concept of finality. In Montero v R [2013] NSWCCA 214 Leeming JA made the following observation. He did so in the context of an application for extension of time within which to apply for leave to appeal against sentence where the error complained of was non-compliance with Muldrock. His Honour said: "2 There is a further reason for refusing the application for an extension of time. It is well established that a change in the law, even a change whose effect is that a conviction would be quashed on appeal, is not of itself sufficient to warrant the granting of an extension of time in which to appeal. This is an aspect of the principle of finality. ..." 43Having referred to R v Ramsden, R v Unger and State of NSW v Kable [2013] HCA 26; 87 ALJR 737 Leeming JA concluded: "6 Those principles have been applied in this Court, including in R v Gregory [2002] NSWCCA 199 at [38] - [45] and Etchell v R [2010] NSWCCA 262; (2010) 205 A Crim R 138 at [19] - [24]. They were applied by the New Zealand Court of Appeal in R v Knight [1998] 1 NZLR 583 at 587-588 on which in turn the Hong Kong Court of Final Appeal has consistently relied (the most recent decision is Chau Cheuk Yiu v Poon Kit Sang [2012] HKCFA 42; [2013] 1 HKC 478: see at [9] - [11] and [53] - [59]). All four of those decisions recognise that "exceptional" circumstances must be shown to warrant departing from the principle of finality. 7 What will amount to the requisite exceptional circumstances cannot be defined exhaustively. However, in the present case, the application is more than three years out of time, and the majority of the sentence has been served. Most importantly, there is no explanation at all for the delay from 30 October 2009 until late 2011, save that the decision in Muldrock pointed to the possibility of an argument that the sentencing judge, who was bound by R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, had erred. That demonstrates the wholly adventitious background to the application which is now made. In my view this is a clear case for not departing from the principle stated in Unger." 44Neither RA Hulme J nor Button J expressed a view on this point because the matter had not been fully argued and because it was unnecessary to do so for the resolution of the application. 45In Chau Cheuk Yiu v Poon Kit Sang [2012] HKCFA 42; [2013] 1 HKC 478 Justice Chan PJ (with whom Justice Ribeiro PJ, Justice Litton NPJ and Justice Gleeson NPJ agreed) said on the issue of finality: "54 Where the sole or real ground of the proposed appeal is that there was a previous misunderstanding of the applicable law, the principle to be applied for determining whether to grant an extension of time was stated by this Court in Hung Chan Wa. In that case, Chief Justice Li (with whom the other members of the Court agreed), having considered the relevant overseas jurisprudence, held that this ground by itself would not justify an extension but that there could be exceptional circumstances in a particular case which would justify an extension. He added that the circumstances must be so exceptional that the occasions when they would be held to exist would be very rare. 55 It is acknowledged that in the majority of cases, this principle may create a sense of grievance for the parties concerned. However, the finality principle is considered as of such critical importance to the overall administration of the justice system that this factor outweighs other factors save in exceptional circumstances in which case extension should be granted. Where such exceptional circumstances exist, one would expect that they would be plain and obvious and readily identifiable." 46In the United Kingdom the Court of Appeal (Criminal Division) has had occasion to recently consider the question of finality. In Jawad v The Queen [2013] EWCA Crim 644 the Court (Lord Justice Hughes, Mr Justice Foskett and Judge David Radford) said: "29 We therefore do not have to decide the question mentioned and we have had only brief submissions upon it. We nevertheless think that we should make clear the general approach of this court, over many years, to change of law cases. An extension of time will not be granted routinely in such a case simply because the law has changed. It will be granted only if substantial injustice would otherwise be done to the defendant, and the mere fact of change of law does not ordinarily create such injustice. Nor is the case where an extension will be refused limited to one where, if the law had been correctly understood at the time of the proceedings in the Crown Court, a different charge or different procedure might well have left the defendant in a similar position to that in which he now finds himself. The line of authority setting out this court's approach culminates in R v Cottrell & Fletcher [2007] EWCA Crim 2016; [2008] 1 Cr App R 7, where the judgment was given by Sir Igor Judge P, as he then was. But that line of authority includes similar pronouncements by successive Lords Chief Justice from Lord Lane CJ onwards. An early example is R v Mitchell (1977) 65 Cr App R 185 in which Lane LJ (as he then was) expressly approved the decision of this court in R v Ramsden [1972] Crim LR 547. There, a defendant who had been convicted of dangerous driving before Gosney (1971) 55 Cr App R 502 had held that fault was a necessary ingredient of the offence was refused leave to appeal out of time after the latter decision had been published. The Court observed that alarming consequences would flow from permitting the general re-opening of old cases on the ground that a decision of a court of authority had removed a widely held misconception as to the prior state of the law on which the conviction which it was sought to appeal had been based. No doubt otherwise everyone convicted of dangerous driving over a period of several years could have advanced the same application. A similar proposition was recently adumbrated by the Supreme Court of Ireland in A v Governor of Arbour Hill Prison [2006] IEFC 45 where the court held that absolute retroactivity would lead to 'dysfunctional effects in the administration of justice. ..." 47Similar observations were made by the Court of Appeal (Criminal Division) in R v Bestel and Others [2013] EWCA Crim 1305 (Lord Justice Pitchford, Mr Justice Mitting and Mr Justice Openshaw). The Court reviewed previous decisions involving "change of law and the principle of finality". The Court cited with approval the quotation from Lord Bingham CJ in Hawkins [1997] 1 Cr App Rep 234 at 239 where his Honour said: "Counsel goes on to submit that a change in the law since the date of conviction or plea of guilty has not usually been regarded in the past as good reason for granting an extension of time in which to appeal. In support of that submission he has drawn our attention to Lesser (1940) 27 Crim App R 69, Ramsden (1972) Crim L R 547, Re: Berkley (1945) Ch 1 and Mitchell (1977) 65 Crim App R 185. ... That practice may on its face seem harsh. On the other hand, the consequences of any other rule are equally unattractive. It would mean that a defendant who had roundly and on advice accepted that he had acted dishonestly and fraudulently and pleaded guilty, or who had been found guilty and chosen not to appeal, could after the event seek to re-open the conviction. If such convictions were to be readily re-opened it would be difficult to know where to draw the line or how far to go back. Counsel on behalf of the applicant suggests there is a readily available line of demarcation which would distinguish those serving sentences from those who had completed their sentences. That, however, would not in our judgment be an altogether satisfactory line of demarcation in the case of those who were serving sentences for other offences as well as for the offences against in this case section 15(1). It is plain, as we read the authorities, that there is no inflexible rule on this subject, but the general practice is plainly one which sets its face against the re-opening of convictions recorded in such circumstances. Counsel submits, and in our judgment submits correctly - that the practice of the court has in the past, in this and comparable situations, been to eschew undue technicality and ask whether any substantial injustice has been done. In suggesting that this is and has been the practice reference has been made to McHugh (1977) 64 Crim App R 92, R v Ayres (1984) 78 Crim App R 232, (1984) AC 447, Pickford (1995) 1 Crim App R 420 and Molyneux and Farmborough (1981) 72 Crim App R 111." 48The Court also cited with approval the following from R [2006] EWCA Crim 1974, [2007] 1 Cr App Rep 150: "30 It is the very well established practice of this Court, in a case where the conviction was entirely proper under the law as it stood at the time of trial, to grant leave to appeal against conviction out of time only where substantial injustice would otherwise be done to the defendant. R v Lesser (1939) 27 Crim App R 69 is an early example of emphasis that absent special reasons an application out of time will not be allowed ..." 49Having reviewed those and a number of other decisions, the conclusion of the Court was succinctly stated as follows: "31 The principle of finality that decisions made under the law as it was then understood should not be disturbed unless substantial injustice would follow is well recognised and we must apply it. ..." 50It seems to us that the following principles can be extracted from the cases to which the parties have referred the Court. The principle of finality is an important one and it applies to the criminal law as much as to civil cases. Moreover, its application in the criminal law is not restricted to conviction appeals but applies also to sentence appeals. As was said by Hodgson JA in Gregory, there are "powerful considerations supporting the finality of judicial decisions". 51As the cases make clear, time limits are specified by the legislature for a reason and ought not be lightly set aside. The interests of justice must take into account not only the interests of the applicant, but also those of the community represented by the Crown and of the administration of law generally. The prospect of a sentence being re-opened long after the event may impact adversely upon victims of crime, particularly as here where the crime involves the sexual violation of the victim. 52There is, however, some force in the applicant's submission that there is no justification for imposing a test of "exceptional circumstances" before the principle of finality can be displaced. The analysis in Young and Arja concerning the unfettered discretion of this Court when dealing with applications for extensions of time is persuasive. A better test against which to assess such applications is that set out by Campbell JA in Etchell where his Honour said: "24 ... Even so, it seems to me that the need to give weight to the factors I have just mentioned in operating the statutory scheme must call for something beyond the presence of factors that would be sufficient to result in a sentence being varied if an application for leave to appeal against sentence were brought within time." By that approach, the Court is required in exercising its discretion whether to extend time, to have regard to the prospects of success on the application for leave to appeal itself. 53The English Courts in what they have described as "change of law" cases, have enforced the principle of finality except where "substantial injustice" would follow. While what occurred in Muldrock v The Queen is not strictly speaking a change of law, it is analogous to the "change of law cases" considered by the English Courts. Accordingly, when considering an application for extension of time based on "Muldrock error", all relevant factors need to be considered - the length of the delay, the reasons for the delay, the interests of the community, the interests of the victim and whether, if an extension of time were refused, substantial injustice would result. This last factor will inevitably require an assessment of the strength of the proposed appeal although as Etchell made clear, that assessment can be carried out in a "more summary fashion" than would be done in an application for leave to appeal that was brought within time. 54By reference to those factors, this application is not particularly strong. The length of the delay is substantial - over 4 years. To allow an extension of time would offend the principle of finality and may well involve added trauma for the victim. Moreover, the explanation for delay is not compelling. Having considered the circumstances relating to the applicant's sentence, Legal Aid NSW on at least two occasions rejected the applicant's application as having insufficient prospects of success. The only change which has occurred was the handing down of the decision in Muldrock. 55In relation to the last factor, however, it is still necessary to assess the prospects of success of the application for leave to appeal. 56When considering the merits of the application for leave to appeal against sentence, the Court has to apply the sentencing principles set out in Muldrock. The Court does this in the context of applying s6(3) of the Criminal Appeal Act 1912 (NSW). That section relevantly provides: "6(3) On an appeal under section 5(1) against a sentence, the court, if it is of the opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal." 57The final issue before the Court therefore is whether if "Muldrock error" has been conceded in the approach of the sentencing judge, and if that error is considered material, any lesser sentence is warranted in law. In making that assessment, in accordance with Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 the Court is to re-exercise the sentencing discretion afresh, taking into account all relevant statutory requirements and sentencing principles. That is not to say that the findings of the sentencing judge are to be ignored but the applicant does not have to establish that the sentence was manifestly excessive before this Court can consider whether a lesser sentence is warranted. 58In re-exercising the sentencing discretion, this Court has regard to the circumstances at the time of the application. This means that the Court may have regard to evidence of post-sentence events (Douar v R [2005] NSWCCA 455; 159 A Crim R 154 at [124]). 59As already indicated, the re-exercise of the sentencing discretion to determine whether "substantial injustice" would follow if an extension of time were not granted is determinative in this matter. None of the other factors identified in the decided cases favour the granting of such an extension. In particular the explanation for delay is somewhat problematic, being based purely upon a change in the previously understood sentencing principles applicable in NSW. 60The applicant accepted that the objective criminality of the offence was serious. Although it was asserted that the victim had not suffered injuries, this could only be a reference to physical injury. The Victim Impact Statement made over 18 months after the commission of the offence made it clear that she was continuing to experience significant psychological sequelae. Even without the statement, given the age of the victim and the circumstances of the offending, such long term effects could be inferred as likely to occur. 61The applicant did not demonstrate any remorse or contrition nor did he have any insight into his offending behaviour. On the contrary, during the trial and in his pre-sentence report, the applicant accused the victim of fabricating her complaint which he said was financially and racially motivated. 62There were serious aggravating features under s21A(2) of the Act. The applicant was on two forms of conditional liberty (a good behaviour bond and a suspended sentence) for offences of violence at the time of this offence. The two year good behaviour bond was imposed for an offence of common assault and he was subject to a 12 month suspended sentence for a malicious wounding offence. It was only 6 months after the bond and suspended sentence were imposed that the applicant committed this offence. 63The sentencing judge's unchallenged finding was that there were no mitigating factors under s21A(3) of the Act to be found in favour of the applicant. 64The applicant's submissions to the effect that a lesser sentence was warranted were based on his age at the time of the offence (21), sentencing statistics and four sentences which were said to be comparable. 65While it is true that the applicant was aged 21 at the time of the offending, he was significantly older and more experienced in life than the victim and his poor criminal record disentitled him to any particular leniency in that regard. 66As the High Court made clear in Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [54]: "54 ... history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits." 67With offences of this kind, the benefit of statistics is even more constrained. This is because of the enormous variation in the factual background to the offending. Such variations can often have a decisive role in a Court determining an appropriate sentencing range. 68The process of comparing one sentence with another is in any event somewhat problematic. In Vandeventer v R [2013] NSWCCA 33 Adamson J (with whom McClellan CJ at CL and Rothman J agreed) said at [45] - [46]: "45 One cannot adjudge whether a sentence falls within an appropriate range by reasoning from particular instances. Applicants will always be able to find cases where offenders appear to have been dealt with more leniently. So, too, will the Crown be able to find cases where offenders have apparently been dealt with more severely than the applicant for leave to appeal on sentence. This is not, however, the way in which this Court determines whether a sentence is manifestly excessive. 46 The sentencing consistency to which the law aspires is, as the High Court said in Hili, at [18]: "... consistency in the application of relevant legal principles, not some numerical or mathematical equivalence."" 69The four cases to which the Court was referred were Graham v R [2008] NSWCCA 174, Dionnet v R [2009] NSWCCA 85, Ali v R [2010] NSWCCA 35 and Philopos v R [2008] NSWCCA 66. The submission was that although the sentences imposed in those matters were similar, albeit slightly higher than that imposed on the applicant, each case involved more serious offending than had occurred in this case. It followed, so the applicant submitted, that this indicated that the penalty imposed on him was too severe. 70The problem for the applicant with that submission is that there is no "right" or "wrong" sentence for a particular offence. The most that can be said is that there is a range of sentences for an offence which the Court regards as appropriate. Accordingly, it is unhelpful to focus on a small number of cases as has been done here and to highlight by reference to those cases differences and similarities from which to argue that the particular sentence imposed was not warranted. 71Apart from the approach being problematic, there were significant factual differences between those cases and that of the applicant. In two of the cases, the sentences imposed were ameliorated because the offenders suffered from mental illness. In none of the four cases was there the aggravating feature that the offence was committed while on conditional liberty. All of the offenders in the four cases had more compelling subjective cases than did the applicant. 72There is nothing in this examination of the matters raised on behalf of the applicant which would allow, let alone compel, a conclusion that any lesser sentence is warranted in law. Certainly nothing approaching "substantial injustice" has been established. It follows that to allow the application for leave to appeal against sentence to proceed would not have sufficient prospects of success to justify the considerable extension of time that the applicant seeks. 73For the reasons given, even if an extension of time were granted, and if leave to appeal against sentence were granted, we are not satisfied that pursuant to s6(3) of the Act a lesser sentence than that which was imposed is warranted in law. 74The application for extension of time is dismissed.