Extension of Time
6 The application for extension of time was filed some two years and seven months after sentence was imposed on 6 October 2006. The principal challenge on this application relates to that sentence.
7 The Crown opposes an extension of time to challenge the sentence imposed by his Honour Judge Taylor.
8 The Court has a discretion with respect to extension of time under s.10(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].
9 In R v Graham (2004) 62 NSWLR 252 at 258-259 [29], this Court observed that it was understandable that application for leave to appeal against sentence would be made out of time where the sentencing Court had proceeded originally by way of suspended sentence. It was said that the "full implication of such a sentence might not have come home to such a person until faced with the reality of gaol" and that this was so despite the fact that the sentencing judge, at the time of suspending the sentence, is required to inform the offender of the consequences of a breach. Notwithstanding the delay in giving notice in that case, an extension of time was granted to seek leave to appeal against sentence.
10 I agree that this practical reality exists where sentence is suspended and a bond entered. The offender does not face an immediate custodial sentence. Where conditional liberty is breached thereafter by commission of further offences, or non-compliance with a condition of a bond, imprisonment then results and the offender may then consider whether there is some basis for challenging the original sentence. Recognition of this practical reality, however, does not mean that this Court should freely accept a type of two-stage approach, where an appeal will be accepted readily long after imposition of the original sentence.
11 Nor should this Court encourage a view that an offender's legal representative may take a minimalist position at the original sentencing hearing, saying no more than is required to obtain a suspended sentence. It is the duty of counsel appearing for an offender at a sentencing hearing to assist the Court by making relevant submissions at that time on issues of fact and law. A sentencing court is entitled to expect assistance from counsel, in discharge of counsel's duty to the court and the client, with respect to relevant issues, including the facts to be found on sentence, the objective seriousness of the offence, the subjective circumstances of the offender, the capacity of the offence to be dealt with summarily in the Local Court and the length of any sentence of imprisonment which may be imposed but suspended. The public interest is served by counsel discharging his or her duty to the Court and the client: Giannarelli v Wraith [1988] 165 CLR 543 at 555-556.
12 This duty applies equally when counsel urges the Court to proceed by way of suspended sentence and bond. It is not appropriate to approach the original sentencing hearing upon the basis that, if things do not work out and the offender breaches the bond, then arguments may be ventilated, for the first time on appeal to this Court, long after the original sentencing hearing, asserting error on the part of the sentencing Judge. This Court must be careful lest it be thought that a two-staged approach to sentence on the part of offenders and their counsel will be accepted, whereby possible appeal points may be held in reserve, only to be activated if the offender breaches the conditional liberty obtained at the urging of the offender at the original sentencing hearing. The Court's approach in R v Graham should not be taken as a sign that this Court will readily grant an extension of time to appeal in a case such as this. It will depend upon the merits and justice of the case.
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.
14 A further aspect is also relevant. It will usually be the case that an applicant for an extension of time has been sentenced for other offences since the original sentence was suspended. As in this case, further offences may have been committed which constituted breaches of the bond and which led to imposition of the sentence originally suspended. Thus, the application will proceed before this Court in circumstances where, if error is demonstrated, it will be necessary to consider whether some lesser sentence should be fixed when the applicant is already serving another sentence.
15 It has been observed, in another context, that there is nothing more likely to bring suspended sentences into disrepute than the failure of courts to act where there has been a clear breach of the conditions of the bond by which the offender avoided being sent to prison: Director of Public Prosecutions (NSW) v Cooke (2007) 168 A Crim R 379 at 386-387 [23]. Although the Courts are conscious of the seriousness of a suspended sentence, it has been observed that the public, victims and even offenders may not view a suspended sentence as a true punishment: Dinsdale v The Queen [2000] 202 CLR 321 at 346-347 [80].
16 If this Court is required to resentence an offender in a case such as this where another sentence of imprisonment is being served, it would be necessary to consider issues of accumulation, concurrency and totality. In R v MAK (2006) 167 A Crim R 159 at 164-165 [18], this Court (Spigelman CJ, Whealy and Howie JJ) said:
"A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]. For similar reasons in a case such as the present where an offender who is already serving other sentences comes to be sentenced for additional offences, the impression must not be given that no, or little, penalty is imposed for the additional offences."
17 Similar considerations arise in a case where an offender is to be resentenced by this Court for the original offence where sentence had been suspended, but this conditional liberty was breached by commission of further offences for which another sentence of imprisonment is being served. Public confidence in the administration of justice, including confidence in the use of suspended sentences, must be kept squarely in mind if that point is reached by this Court.
18 None of these factors constitute a barrier to this Court intervening where the justice of the case warrants that course. However, in determining whether an extension of time ought be granted, this Court should be alive to factors such as these, as well as the merits of the proposed grounds of appeal.