Criminal law and procedure - Appeal from sentence of suspended imprisonment imposed in Magistrates Court in 2006 for reckless driving - Breach in 2007 resulting in substitute suspended imprisonment order in District Court - Appeal in 2008 from original sentence later discontinued - Application to reinstate appeal - Whether court has discretion to allow notice of discontinuance to be withdrawn

Criminal Procedure Rules 2005 (WA), r 72

Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529

Bridges v The Queen (1998) 20 WAR 59

Chan v The Queen (1989) 38 A Crim R 337

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196

FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268

Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479

Grierson v The King [1938] HCA 45; (1938) 60 CLR 431

Harris v The Queen [2004] WASCA 223

Indich v Bracknell [2005] WASC 225

Johnson (1992) 57 A Crim R 290

Logan v Camm & Whitson [2008] QSC 255

McDonald v White [2007] WASCA 213

Narkle v The Queen (Unreported, WASCA; Library No 6108, 2 December 1985)

R v Bell (1987) 8 NSWLR 311

R v Cartwright (1989) 17 NSWLR 243

R v The State of Western Australia [2008] WASCA 127

Washer v The State of Western Australia [2008] WASCA 135

1 BLAXELL J: Alan Joseph Macri applies for leave to reinstate appeal proceedings which he has previously abandoned. He commenced those proceedings in 2008 when he sought an extension of time and leave to appeal from a sentence of 6 months' 1 day suspended imprisonment imposed in the Magistrates Court in 2006 for an offence of reckless driving.

2 The Magistrate ordered that the term be suspended for 2 years, but following a breach by Mr Macri, he was resentenced in the District Court, and received a substitute suspension period which expired in 2009. In the meantime Mr Macri had commenced and then filed a notice of discontinuance of his appeal. However, he now faces proceedings in the District Court for a further alleged breach, and for this reason wishes to reinstate the appeal.

3 I must firstly decide whether I have power to allow Mr Macri to withdraw his notice of discontinuance. If I decide that issue in his favour and allow him to withdraw the notice, the parties have agreed that I should go on to determine all other matters including the applications for an extension of time and for leave to appeal.

4 In my view, it would be impractical for me to determine the appeal itself because Mr Macri needs to lodge a separate appeal from the substitute suspension period imposed by the District Court. By reason of s 80(8) of the Sentencing Act 1995 (WA) that other appeal must be to the Court of Appeal, and it would be sensible for the two appeals to be heard together.

5 On 5 May 2006 Mr Macri appeared in the Magistrates Court at Perth and pleaded guilty to an offence of reckless driving. The facts of that offence were that at 2.30 pm on Wednesday 8 February 2006 Mr Macri drove a Holden Commodore sedan through a 40 km per hour school zone in Nollamara Avenue, Nollamara. Police officers were present with a radar gun, and they measured the speed of Mr Macri's vehicle while it was in the vicinity of a manned children's crossing at 129 km per hour. At the time the road was dry, the weather was fine, and the traffic was moderate. Although there were no children at the crossing there was light pedestrian traffic in the area. Mr Macri's 2-year-old daughter was travelling as a passenger in his vehicle.

6 In arriving at sentence, the Magistrate noted that Mr Macri had 'an appalling driving record' but that there were some personal mitigating factors in his favour. Her Honour stated that a fine was inappropriate, and after indicating her intention to impose a term of suspended imprisonment went on to state:

You have been given the benefit now of a suspended sentence. I would have imprisoned you for nine months because I felt that it called for the maximum. In terms of sentencing I have to reduce that by one-third, so there's six months, but then I can't sentence you to a term of six months because the legislation doesn't allow me to, so it has to be six months one day imprisonment, suspended for a period of two years.

7 On 26 July 2007 Mr Macri was sentenced by her Honour Chief Judge Kennedy in the District Court to 2 years imprisonment suspended for 2 years for a single offence of possession of methylamphetamine with intent to sell or supply. That offence had breached the suspended imprisonment order made by the Magistrate. Consequently the Chief Judge imposed a substituted suspension period of 2 years for the reckless driving, and ordered that the two terms be served cumulatively.

8 On 16 August 2007 the State lodged a notice of appeal against the sentences imposed in the District Court. On 29 February 2008 Mr Macri also lodged a notice of appeal against the original sentence imposed in the Magistrates Court.

9 Mr Macri's notice of appeal was accompanied by applications for an extension of time to lodge the appeal, for leave to appeal, and for the appeal proceedings to be expedited. On 19 March 2008, Justice McKechnie ordered that the first two of those applications be heard with the appeal, and that the hearing be expedited. His Honour also ordered Mr Macri to enter the appeal for hearing within seven days.

10 Mr Macri did not enter the appeal for hearing but on 29 March 2008 filed a notice of discontinuance. In the meantime the State had (on 17 March 2008) discontinued its appeal against the sentences imposed in the District Court.

11 As a result of the resentencing in the District Court, the suspension period for the term of imprisonment imposed in the Magistrates Court ultimately expired on 25 July 2009. However, before then (on 8 June 2009) Mr Macri appeared in the Magistrates Court once again and pleaded guilty to four new offences. Those offences were one count of possessing amphetamines, one count of reckless driving, one count of failing to stop when called upon, and one count of driving without authority. Mr Macri was fined a total of $2,600.

12 As the new convictions breached the substituted suspended imprisonment order, Mr Macri now faces resentencing in the District Court for the original offence of reckless driving. It is against this background that he now seeks leave to reinstate his appeal.

13 It is important to note that in 2005 there was the significant change in the rules governing discontinuance of appeals. Prior to then, the old O IX r 13 of the Criminal Practice Rules 1914 (WA) and r 66(2) of the Criminal Procedure Rules 2000 (WA) had provided that on the filing of a notice of abandonment (or discontinuance), an appeal was deemed to be dismissed. Under the new Criminal Procedure Rules 2005 (WA), r 72 simply provides that:

(1) The appellant may discontinue an appeal by lodging and serving a Form 26 (Discontinuance notice).

(Rule 74 also provides that when a criminal appeal is concluded, 'the Registrar must issue a Form 27'. However the court file in the present matter reveals that a Form 27 was not issued.)

14 Under the old regime there were a number of authoritative decisions in this court to the effect that there was an inherent jurisdiction to allow withdrawal of a notice of abandonment of appeal, but only if the notice was a nullity (Hastie v The Queen [1991] WAR 365; Bridges v The Queen (1998) 20 WAR 59; Johnson (1992) 57 A Crim R 290 and Harris v The Queen [2004] WASCA 223). In Bridges, Ipp J at 66 held:

it is the essence of a null notice of abandonment that it was executed or served by an applicant who did not thereby intend to abandon the appeal, or did not understand the nature or effect of the notice, or misunderstood the nature or effect of the appeal itself. It is only then that the mind of the applicant can be said not to go with the act of abandonment, or that the service of the notice is not the applicant's true act.

15 However, the Court of Criminal Appeal in New South Wales took a different approach to the very similar rule in that jurisdiction. In R v Bell (1987) 8 NSWLR 311, it held that there was an inherent jurisdiction to 'go behind' a notice of abandonment because a deemed dismissal is procedural in nature and not a determination on the merits. Street CJ (at 313) referred to 'the Court's charter to ensure that a miscarriage of justice does not pass without remedy' and went on to state:

In determining whether the rejection of the present application would allow a miscarriage of justice to pass unremedied, it is relevant and permissible for the court to have regard to the prospects of the appellant establishing that a miscarriage of justice has occurred - that is to say, to the prospects of success in the appeal. It is, of course, always relevant, to ascertain how it came about that the notices of abandonment were filed.

16 A differently constituted court in R v Cartwright (1989) 17 NSWLR 243 followed the decision in Bell, and held (at 246):

This Court has no power to grant leave to appeal in a case where it has already heard an appeal on its merits and dismissed it: Grierson v The King [1938] HCA 45; (1938) 60 CLR 431 at 434, 436. However, no such appeal has been heard on its merits in this case. The Court does, moreover, retain an inherent jurisdiction to go behind r 27 to ensure that a miscarriage of justice does not go unremedied: Grierson v The King (at 437). For the purpose of exercising that jurisdiction, it is necessary firstly to ascertain how the notice of abandonment came to be filed and then to have regard to the prospects of success which the applicant may have if leave to appeal were granted: R v Bell (1987) 8 NSWLR 311 at 314. Assuming that there were fair prospects of success in the appeal itself, leave may be granted to withdraw the notice if it is established that the applicant had signed it without fully appreciating its significance or the significance of its consequences: R v Griffin (1969) 90 WN (Pt 1) (NSW) 548 at 549; [1969] 2 NSWR 497; or as a result of fraud or of bad legal advice: R v Stubbs (1970) 71 SR (NSW) 76 at 78; 92 WN (NSW) 768 at 770; [1970] 3 NSWR 392 at 395. Even if the explanation proffered for the abandonment is weak, that circumstance will not necessarily stand in the way of the grant of leave if it be seen that there would be a miscarriage of justice if leave were refused.

17 In Grierson v The King [1938] HCA 45; (1938) 60 CLR 431 the High Court held that the New South Wales Court of Criminal Appeal did not have jurisdiction to reopen an appeal which had been heard on the merits and finally determined. At 436 - 437, Dixon J noted that there was a clear distinction between a determination on the merits and a procedural dismissal:

[N]o court has authority to review its own decision pronounced upon a hearing inter partes after the decision has passed into a judgment formally drawn up (In re St Nazaire Co (1879) 12 Ch D 88). If the prisoner has abandoned his appeal, the Court of Criminal Appeal in England will exercise a discretion to allow him to withdraw his notice of abandonment, notwithstanding that it operates as a dismissal of the appeal (Halsbury's Laws of England, 2nd ed, vol 9, p 273, and the cases cited in note o). But in such a case there has been no determination by the court, and there is no English case in which, after such a determination, an appeal has been reopened or a fresh appeal has been entertained.

18 In considering the extent of the court's inherent powers with criminal appeals in this jurisdiction, it is important to note s 40(1)(l) of the Criminal Appeals Act 2004 (WA) which confers the same powers as in a civil case. In civil cases it is a general rule that subsequent orders cannot be made in litigation that 'has been brought regularly to an end' (Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529, 531 - 532). However, there are recognised exceptions to that rule, particularly when there was no determination of the issues on their merits (FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268, 278 - 286, 288). In Logan v Camm & Whitson [2008] QSC 255, Dutney J found that the Supreme Court of Queensland had power to reinstate proceedings which had been terminated by the filing of a notice of discontinuance. His Honour held at [32]:

Although termination of an action by notice of discontinuance does not fall within any of the expressly identified exceptions to the finality rule, it seems that the rule will only be applied where there has been a judgment on the merits or, at least, in some cases, a deliberate termination of the proceedings by an order of the court. I do not doubt that the Supreme Court within its inherent jurisdiction has the power to reinstate a proceeding brought to an end by ... the filing of a notice of discontinuance.

19 Although r 72 of the Criminal Procedure Rules 2005 is silent as to the effect of a notice of discontinuance of an appeal, there is no longer a statutory deemed dismissal. It follows in my view, that this Court has an inherent power to allow a criminal appellant to withdraw a notice of discontinuance in circumstances where there would otherwise be a miscarriage of justice. (In this case there is the added factor that the appeal was not formally concluded in accordance with rules by the issuing of a Form 27).

20 Where there has been a lengthy delay in bringing an application to reinstate an appeal, it seems to me that the factors that should be taken into account are essentially the same as those that relevant to an extension of time. The four major factors that are usually considered in the exercise of the court's discretion to extend time are the length of delay, the reasons for the delay, whether there is an arguable case, and the extent of any prejudice to the other party (Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196). A further factor that is relevant is the likely impact on the applicant if the extension of time is refused. In this regard, McHugh J held in Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 that:

The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VicRp 27; [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194 5 ; 70 ALR 185 When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VicRp 113; [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.

21 Needless to say, in the context of a criminal appeal where the State is the respondent, the 'vested right' that it has in the primary decision is usually of little weight. In my view, it is also self-evident that any potential injustice to the applicant is of greater weight in criminal proceedings than in a civil case. Nevertheless, when there has been a very long delay without sufficient explanation, the appellant needs to demonstrate that there will be a manifest miscarriage of justice if time is not extended. In R v The State of Western Australia [2008] WASCA 127 [9] and Washer v The State of Western Australia [2008] WASCA 135 [15] the Court of Appeal has held that the relevant principles are as stated by Burt CJ in Narkle v The Queen (Unreported, WASCA; Library No 6108, 2 December 1985):

This court has on a number of occasions pointed out that the time limit fixed by s 695(1) of the Code must be taken seriously and every effort must be made to comply with it. The section contains no express criteria controlling the court's discretion to extend time and in that sense it can be said that the discretion is unfettered. But that is not to say that it will be exercised as of course. It should only be exercised upon facts shown which in the judgment of the court appear positively to call for its exercise and the onus upon an applicant for extension of time will of course increase as the time goes by. A delay of four and a half months, as in this case, can only be described as gross and it would be necessary to show very special circumstances indeed to sustain the exercise of this Court's discretion to extend time to that extent. Those circumstances may explain and excuse the delay or they may relate to the grounds of appeal and indeed the latter consideration may become and will become dominant should it appear that there has been a manifest miscarriage of justice.

22 Mr Macri was first sentenced on 5 May 2006. However, an appeal notice was not lodged until 29 February 2008 or approximately 20 months after the 28 day period specified by s 10(3) of the Criminal Appeals Act 2004. By then, Mr Macri had admitted a breach of the suspended imprisonment order, and had been sentenced in the District Court to a substituted suspended term.

23 Mr Macri has not provided any direct explanation for this initial 20 month delay. His affidavit in support of the present application simply states that on 22 February 2008 he was advised by his solicitors that an appeal against the sentence imposed in the Magistrates Court would have high prospects of success. That advice was given on the day of hearing of the State's appeal, and when the Court of Appeal was informed that Mr Macri wished to appeal the Magistrate's decision, the hearing was adjourned. The Court of Appeal also ordered Mr Macri to file the appeal notice in respect of the Magistrate's sentence, and he did so on 29 February 2008.

24 On 17 March 2008 the State discontinued its appeal against the District Court sentence. Mr Macri then instructed his solicitors to discontinue his appeal. His affidavit states that he did so 'in light of the fact that the State had discontinued their appeal against sentence' and because he was 'concerned about the costs involved'. Consequently, he filed a notice of discontinuance on 28 March 2008.

25 The present application to reinstate the appeal was filed on 26 August 2009 (approximately 3 years and 3 months after the Magistrate's decision). Mr Macri's affidavit shows that he wishes to reinstate the appeal because of his further breach of the suspended imprisonment order. He has been committed to the District Court for resentence, and 'in light of this' believes that his appeal 'will affect the result of the resentencing exercise'.

The prospects for success of the proposed appeal

26 Mr Macri's draft grounds of appeal assert that there were errors of law by the Magistrate and that the sentence imposed was manifestly excessive. The grounds have been particularised as follows:

1. The Learned Sentencing Magistrate erred by imposing a period of suspended imprisonment having regard to the following factors:-

1. the offence was the Offender's first offence for reckless driving; 2. the offence could adequately have been dealt with by the imposition of a fine;

1. the absence of any aggravating factors such as drugs, alcohol or injury to any person;

1. the mitigating factors personal to the Offender.
2. The learned Sentencing Magistrate in imposing a sentence of imprisonment took into account factors which were irrelevant to the exercise of sentencing discretion in the circumstances of the present case including:-

1. the scheme and purpose of the Family Law Act and the Family Law Court; 2. the physique of the Offender;

1. the need to set a 'tariff' for offending of this kind;

1. the unproven proposition that the Offender may have driven in a manner similar to that which constituted the present offending on other occasions.
2. The Learned Sentencing Magistrate erred in her assessment that the offending required the maximum term of imprisonment available under section 60 of the Road Traffic Act.
3. The sentence imposed by the Learned Sentencing Magistrate was manifestly excessive in the circumstances of the case for the reasons set out in grounds1, 2 and 3 in conjunction with each other.

27 Originally, there was a fifth draft ground of appeal asserting that the term of 6 months 1 day imprisonment exceeded the statutory maximum. This ground was the main focus of argument during the hearing before me, and was based on the assumption that the maximum sentence of 9 months' imprisonment available for reckless driving under s 60(3)(a) of the Road Traffic Act 1974 (WA) had to be reduced by one-third pursuant to the Sentencing Amendment and Repeal Act 2003 (WA) (Amendment Act).

28 However, after the hearing was adjourned (to allow the filing of further written submissions) counsel discovered that the penalty for reckless driving had been amended by s 92(2) of the Amendment Act. Consequently, under the transitional provisions of the Amendment Act the usual requirement that a term of imprisonment be reduced by one third did not apply.

29 Nevertheless, it is clear from the transcript of the sentencing that the Magistrate believed that she was required to reduce the sentence that she otherwise would have imposed by one third. In this regard, her Honour considered that the circumstances of Mr Macri's offence called for the maximum penalty of 9 months' imprisonment. It was in purported compliance with the Amendment Act that her Honour then reduced that sentence to 6 months 1 day imprisonment suspended for 2 years. (If her Honour had been correct in her understanding of the legislation she would have erred in imposing the term of 6 months 1 day: see Indich v Bracknell [2005] WASC 225).

30 In the course of her sentencing remarks her Honour did make reference to the extraneous matters referred to in the second draft ground of appeal, but did not appear to give any weight to these matters other than to the need to set a 'tariff'. (It seems to me that the Magistrate used this term in the sense that there was a need for general deterrence).

31 At the time of sentence, Mr Macri had a moderately long record of offences which included convictions for possessing a prohibited weapon, possessing amphetamines, and possessing amphetamines with intent. There was no prior offence of reckless driving, but on five separate occasions he had been subject to demerit point suspensions of his motor driver's licence.

32 The Magistrate made specific reference to mitigating factors including Mr Macri's early plea of guilty and the fact that 'you handed yourself in'. Her Honour also specifically took account of the fact that he was the father of a 2-year-old child and that a period of imprisonment might impact on the child's life and on the provision of support.

33 In my opinion, if the appeal had proceeded in a timely fashion, it is likely that Mr Macri would have obtained leave in respect of grounds 1 and 4. Those grounds are essentially concerned with the issue whether the sentence imposed was excessive in all of the circumstances. That issue is to be determined by reference to the maximum penalty, the standards of sentencing customarily observed, the place which the offending conduct occupied in the scale of seriousness of such offences, and the personal circumstances of the offender (Chan v The Queen (1989) 38 A Crim R 337, 342).

34 In McDonald v White [2007] WASCA 213 at [33] the Court of Appeal noted the difficulty in discerning a common pattern or range of sentences for the offence of reckless driving. Notwithstanding further examples of particular sentences referred to by counsel, I consider that that is still the position today. There are a wide variety of circumstances in which such offences occur, and the sentence in each case must turn upon the particular facts.

35 Mr Macri's particular offence was undoubtedly a serious example of reckless driving because of his immense speed, the extent to which that speed exceeded the limit of 40 km per hour, and the particular potential for harm given the location at which it occurred. Although the Magistrate believed that she was imposing the maximum term of imprisonment, it was only approximately two thirds of the actual maximum. Given the serious circumstances of the offence and Mr Macri's history of serial traffic offending in the form of demerit suspensions, there is a strong argument that the sentence imposed fell within a reasonable range, albeit at the high end of that range. Nevertheless, there is some prospect that at the final hearing of the appeal, the court would have upheld at least ground 4.

Whether the present application should be granted

36 In my view, Mr Macri probably has less than moderate prospects of success with his proposed appeal. Nevertheless, this factor, along with the possibility that the District Court will order that the suspended term be served, supports his contention that there will be a miscarriage of justice if the present application is refused.

37 All of the other factors relevant to the exercise of my discretion weigh against the application being granted. There has been an exceptionally long period of three years and three months in pursuing the appeal, and Mr Macri's explanation for that delay is not really satisfactory. In essence, he has only shown any interest in appealing from the suspended imprisonment order during those periods when he has been subject to resentencing because of breach.

38 It is also highly relevant that Mr Macri has been legally represented at all material times. The lodgement of the notice of discontinuance was a deliberate decision by Mr Macri following legal advice as to his prospects, and was not the result of inadvertence or any misunderstanding of his situation. The notice was lodged notwithstanding the order that the hearing of Mr Macri's applications be expedited. He also chose to discontinue the proceedings full well knowing that the suspension period had been extended, and that he would face the prospect of imprisonment if there was any further breach.

39 Having regard to all of these matters I am not persuaded that the justice of the case requires that I exercise my discretion to allow Mr Macri to withdraw the notice of discontinuance. His application will be refused.