Arja v R [2010] NSWCCA 190 | Case summary

1 BASTEN JA: I agree with the reasons given by Latham J and the order her Honour proposes. 2 In the course of argument, reference was made by counsel for the Director to the decision of this Court in McCall v The Queen [2010] NSWCCA 174. That case involved an application for leave to appeal, in relation to a verdict returned on 17 September 2007 and a sentence imposed on 16 November 2007. An application for an extension of time to appeal was filed on 23 December 2009. McClellan CJ at CL (Hislop and Latham JJ agreeing) quoted (at [5]) a remark from R v Lawrence (1980) 1 NSWLR 122 at 148 where the Court (constituted by Nagle CJ at CL and Yeldham J) stated: "Certainly, where any considerable delay has occurred, exceptional circumstances will be required before the appeal is permitted to proceed."

3 Section 10 of the Criminal Appeal Act 1912 provides for a notice of intention to appeal (or for leave to appeal) to be given within 28 days after the conviction or sentence. The appeal (or application for leave to appeal) is to be made in accordance with the Rules of the Court: s 10(1)(c). Pursuant to r 3B, the notice must be given within the period during which the notice of intention has effect, being three months unless the period is extended by the Court: Criminal Appeal Rules , r 3B(1) and (2). A notice of application for extension of time may be made under r 28. 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. 7 HALL J : I also agree with the reasons of Latham J and the order proposed by her. 8 LATHAM J : The applicant seeks leave to appeal against the sentences imposed upon him by Judge Finnane QC DCJ (the Judge) on 20 June 2008. The applicant pleaded guilty to two counts of aggravated robbery pursuant to s 95 (1) of the Crimes Act 1900, each carrying a maximum penalty of 20 years imprisonment, and to one count of Knowingly Drive a Stolen Vehicle pursuant to s154A(1)(b) of the Crimes Act, carrying a maximum penalty of five years imprisonment. A further count of drive recklessly or furiously in a manner dangerous was dealt with by the Judge under a s 166 certificate. In respect of that matter, the applicant was sentenced to a wholly concurrent fixed term of 12 months imprisonment. All of these offences were committed in early March 2007. 9 The aggregate head sentence was six years, to date from 1 April 2007, with an aggregate non parole period of four years, expiring 31 March 2011. The applicant was referred for assessment to the Drug Court pursuant to s 18B of the Drug Court Act 1998. As a result, the applicant was ordered to attend the Compulsory Drug Treatment Programme at the Compulsory Drug Treatment Correctional Centre. 10 According to an affidavit affirmed by the applicant on 23 July 2010, a Notice of Intention to apply for leave to appeal was filed in the Court of Criminal Appeal on 17 July 2008. That notice was filed through the applicant's then legal representatives, namely John B Hajje and Associates. It appears from the applicant's evidence before this Court that he also gave a Notice of Intention to appeal to a prison officer on the understanding that it would be filed. In any event, the notice filed by the applicant's solicitors expired on 17 January 2009. The applicant maintains in his affidavit that he was incorrectly informed by another inmate that the Court would write to advise the applicant of a hearing date and that it did not therefore occur to him to make any direct enquiries with the Court. That explanation does not take account of the fact that the applicant was legally represented for at least three weeks after 17 July 2008 and that reliable information was available from his solicitor. 11 The applicant escaped from the Compulsory Drug Treatment Programme on 7 October 2009 but returned to the programme two days later. On 19 October, the Compulsory Drug Treatment Order was revoked. The applicant's then legal representatives, Khalid Kheir and Associates, advised the applicant to pursue the sentence appeal. 12 On 15 December 2009, the applicant was sentenced for the offence of escape from lawful custody. He received a term of six months and one day imprisonment commencing 31 March 2011, expiring on 1 October 2011. A non-parole period of three months imposed on that offence expires on 30 June 2011. 13 An application by the applicant for legal aid was received by the Legal Aid Commission on 17 February 2010. The relevant officer in the Legal Aid Commission erroneously assumed that the Notice of Intention to appeal expired on 17 January 2010, not 17 January 2009. The Legal Aid Commission sought an extension of time for the filing of the Notice of Appeal, which was granted to 30 June 2010, on the basis of the misunderstanding on the part of the Legal Aid Commission. On 23 June 2010, the Legal Aid Commission filed a Notice of Application for Leave to Appeal on the applicant's behalf. On 18 July 2010, the Registrar of the Court advised the Legal Aid Commission that her power to extend time for a Notice of Intention to appeal which had expired 18 months previously was doubtful. 14 Accordingly, the applicant requires the leave of the Court in circumstances where no satisfactory explanation is provided for the lapse of the Notice of Intention to appeal and no satisfactory explanation is provided for the delay between October 2009 and February 2010 in filing a further notice. A period of three and a half years has elapsed since the offences were committed. The aggregate non parole period of the sentences the subject of the application to appeal is due to expire in 7 months time. 15 The only ground of the appeal that asserts error is that the Judge failed to take account of the applicant's guilty pleas. Whilst it is conceded by the Crown that there is no reference to pleas of guilty in the course of the remarks on sentence, both the Crown and the applicant refer in their submissions to an exchange that occurred between the Judge and counsel shortly before sentence was pronounced. That exchange explicitly included mention of R v Henry & Ors. [1999] NSWCCA 111 ; (1999) 46 NSWLR 346 in the context of its relevance to the applicant's case because of his pleas of guilty, amongst other factors. 16 I am not persuaded that the Judge failed to take the applicant's guilty pleas into account, notwithstanding the applicant's reliance on other decisions of this Court where a failure to refer to a plea of guilty was held to constitute error in the circumstances of those cases ; see R v Heilpern [2006] NSWCCA 311; R v Lao [2003] NSWCCA 315. The Judge's reference to the decision of Henry cannot be construed as anything other than an acknowledgement of the applicant's pleas, particularly where the sentences imposed for two separate offences of aggravated robbery (a 5 year head sentence with a 3 year non-parole period) were consistent with the Henry guideline, which is based upon a plea of guilty. 17 Assuming that error is established, I am not persuaded that a lesser sentence is warranted. The applicant used a fraudulent drivers license to hire a utility on 6 March 2007. He robbed two convenience stores very late on the evenings of 7 March and 8 March 2007. On each occasion he caused the counter attendant to leave the cashier area, punched the victim and threatened further violence. On the first occasion he fled with $700 in cash, whilst on the second occasion he left with an unknown amount of money from the till and a computer hard drive. Approximately 15 minutes after the commission of the second offence, the applicant was engaged in a high-speed pursuit with police (the subject of the traffic offence) and made good his escape. He was arrested on 1 April 2007 in Queensland and extradited to New South Wales. 18 These offences were committed one day after the expiry of a 12 month bond imposed for the offence of drive whilst disqualified. His criminal history, which consists largely of traffic offences and minor drug offences, largely reflects the applicant's substance abuse, which commenced at the age of 17 and escalated over the next 6 years, resulting in the commission of the robbery offences to fund the applicant's addictions. 19 However the sentences for the individual offences were structured, the aggregate head sentence and aggregate non parole period were entirely appropriate to the totality of the applicant's criminality. In my view, there is no merit in the appeal. 20 For all of these reasons, but particularly in view of the inordinate delay, I would refuse the application to extend the time within which to appeal. **********

Arja v R

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