ETCHELL v R

Court of Criminal Appeal (NSW)|2010-09-22|Before: Campbell JA, Latham J, Price J, Woods AJ

JUDGMENT OF: Campbell JA at 1; Latham J at 57; Price J at 58

DECISION: Application for extension of time dismissed.

CATCHWORDS: APPEAL - practice and procedure - extension for time to appeal - CRIMINAL LAW - appeal - procedure - notices of appeal - time for appeal and extension thereof - principles relevant to courts decision whether or not to grant extension of time - considerations include reason for delay, proposed grounds of appeal and finality of judicial decisions - whether miscarriage of justice in fixing balance of term less than one-third of non-parole period - whether miscarriage of justice in judge's misdescription of victim of offence - application for extension of time dismissed

Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 LEGISLATION CITED: Criminal Appeal Act 1912 Criminal Appeal Rules Interpretation Act 1987

Arja v R [2010] NSWCCA 190 Edwards v R [2009] NSWCCA 199 Jackson v R [2010] NSWCCA 162 CASES CITED : McCall v R [2010] NSWCCA 174 R v Gregory [2002] NSWCCA 199 R v Ramsden (1972) Cr. L. Rev. 547 R v Unger [1977] 2 NSWLR 990 Wakefield v R [2010] NSWCCA 12

PARTIES: John Nicholas Etchell (Applicant) Regina (Crown)

COUNSEL: A Francis (Applicant) P G Ingram (Crown)

SOLICITORS: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/3042

CAMPBELL JA LATHAM J PRICE J

15 NOVEMBER 2010 John Nicholas ETCHELL v The Queen Judgment 1 CAMPBELL JA: This is an application for extension of time in which to seek leave to appeal against sentence. For the purpose of the hearing, both the Applicant and the Crown have presented those arguments they would wish to present if the extension of time were granted. 2 The Applicant was sentenced in the District Court at Orange on 12 June 2007 after pleading guilty to six counts: "1 On or about 12 July 2006 at Dubbo, in the State of New South Wales, he did break and enter a store, namely Astley's Plumbing and Hardware, the property Stuart Ross Astley at Cobbora Road, with intent to commit a serious indictable offence inside those premises, namely larceny. 2 On or about 19 July 2006 at Dubbo, in the State of New South Wales, he did break and enter a dwelling house at Village Life Retirement Home, Wheeler's Lane, and did commit a serious indictable offence therein, and namely did steal a wallet and an Australian Credit Union Credit card the property of Gavin Wayne Rogers. 3 On or about 10 August 2006 at Wellington, in the State of New South Wales, did break and enter a dwelling house, at 150 Percy Street, and did commit a serous indictable offence therein, namely did steal a number of cigarettes, documents and credit cards, the property of Edmond Mellick and Gwyneth Mellick. 4 Between 18 July and 26 July 2006, at Dubbo, in the State of New South Wales, by deception namely using a stolen Australian Central Credit Union debit card in the name of Gavin Wayne Rogers, dishonestly obtained for himself financial advantage namely a quantity of jewellery, electronic goods, groceries, taxi fares, cigarettes, Australian currency, accommodation, sporting goods food and clothing , totalling $38,786.67 in value. 5 Between 9 August 2006 and 19 August 2006, at Wellington, in the State of New South Wales, by deception namely using stolen National Australia Bank credit cards in the names of Edmond Mellick and Gwyneth Mellick dishonestly obtained for himself money namely $7,000 in Australian currency. 6 Between 9 August 2006 and 18 August 2006 at Wellington, in the State of New South Wales, by deception namely using stolen National Australia Bank credit cards, in the names of Edmond Mellick and Gwyneth Mellick, dishonestly attempted to obtain for himself money, namely $40,000 in Australian currency." 3 Count 1 alleged a contravention of section 113(1) Crimes Act 1900 (NSW), concerning which a penalty of 10 years is prescribed. Counts 2 and 3 each alleged a contravention of section 112(1) Crimes Act, concerning which a penalty of 14 years is prescribed. Counts 4 and 5 are both contraventions of what was then section 178BA(1) Crimes Act, concerning which a penalty of 5 years is prescribed. Because count 6 related to an attempt to commit an offence under the then section 178BA(1), the same penalty as for a contravention of section 178BA was prescribed, pursuant to section 344A Crimes Act. (From 22 February 2010 section 178BA has been replaced by somewhat more elaborate provisions in section 192B and following.) 4 Pursuant to section 21(2) Crimes (Sentencing Procedure) Act 1999, the court had power to impose, concerning each of these offences, a sentence of imprisonment for a lesser term than that prescribed by the section creating each respective offence. 5 The sentencing judge was asked to take into account various offences disclosed on three separate Form 1 documents. Concerning count 1, an offence of possession of house breaking implements at Dubbo on 12 July 2006 (the same date as the substantive offence in count 1) was disclosed. Concerning count 2, an offence at Dubbo on 7 June 2006 was disclosed. It was disposal of property, namely a wedding ring set the property of Cynthia Pearson, that he knew had been stolen. Concerning count 3, four separate offences at Wellington were disclosed. One was, on 18 August 2006, making a false instrument, namely an internet banking authority in the name of Gwyneth Mellick intending to induce the National Australia Bank to accept it as genuine, and thereby attempt to transfer monies to the prejudice of Gwyneth Mellick. Another was, on 18 August 2006, using the false instrument so made intending to induce the National Australia Bank to accept it as genuine and thereby attempting to transfer monies to the prejudice of Gwyneth Mellick. The other two offences disclosed on the Form 1 related to two separate incidents of assaulting a police officer in the execution of his duty, that had occurred on the date of his arrest. 6 The Applicant had pleaded guilty to all of the offences with which he was charged. 7 The sentences imposed, listed in the order in which they were to take effect, were: On count 1: a fixed term of two (2) years commencing on 21 August 2006 and expiring on 20 August 2008. On count 4: a fixed term of two (2) years commencing on 21 August 2006 and expiring on 20 August 2008. On count 5: a fixed term of two (2) years commencing on 21 August 2006 and expiring on 20 August 2008. On count 6: a fixed term of two (2) years commencing on 21 August 2006 and expiring on 20 August 2008. On count 2: a term of four (4) years and six (6) months commencing on 21 August 2007 and expiring on 20 February 2012 consisting of a non-parole period of three (3) years and four (4) months commencing on 21 August 2007 and expiring on 20 December 2010 and a balance of term of one (1) year and two (2) months commencing on 21 December 2010 and expiring on 20 February 2012. On count 3: a term of four (4) years and six (6) months commencing on 21 August 2009 and expiring on 20 February 2014 consisting of a non-parole period of three (3) years and four (4) months commencing on 21 August 2009 and expiring on 20 December 2012 and a balance of term of one (1) year and two (2) months commencing on 21 December 2012 and expiring on 20 February 2014. 8 In consequence, the aggregate term imposed on the Applicant was seven (7) years and six (6) months commencing on 21 August 2006 and expiring on 20 February 2014. The aggregate term was made up of an aggregate non-parole of six (6) years and four (4) months commencing on 21 August 2006 and expiring on 20 December 2012 and an aggregate balance of term of one (1) year and two (2) months commencing on 21 December 2012 and expiring on 20 February 2014.

Extension of Time 9 Pursuant to section 5(1)(c) Criminal Appeal Act 1912, any appeal against sentence by a person convicted on indictment can occur only with the leave of the court. Section 10(1)(a) Criminal Appeal Act prescribes a time 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: "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." 10 Section 10(1)(c) requires the appeal to be made in accordance with the rules of the court. Rule 3A(1) Criminal Appeal Rules provides (relevantly) that a notice of intention to apply for leave to appeal has effect for six 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 3 months after the … sentence." 11 In the present case, the sentences were imposed on 12 June 2007, and a notice of intention to seek leave to appeal was filed on 11 June 2010. Thus, an extension of a little over two years and 11 months is sought. 12 Two affidavits in support of the application for extension were lodged. One is from the Applicant. The other is from the solicitor now acting for him. 13 The Applicant's affidavit says that on the day he was sentenced, the lawyer who had appeared for him spoke to him after the sentencing. The Applicant "just got him to put in the form for me." That lawyer "said I might get some time off if I was really lucky, but he didn't say anything about any possible grounds of appeal." The Applicant rang his mother the next day, "and she was crushed when I told her how long I would be in gaol for". He says he promised his mother and father that he would never set foot in a courtroom again. Soon after, he "filled out a form at the gaol that I got from one of the officers to pull my appeal, and gave [it] back to the officer." He thought, until a time not precisely identified in the last few months of 2009 that, once he had (as he understood) withdrawn his appeal, that was the end of his opportunity to appeal. 14 It appears that the form that the Applicant had filled out with the intention of instigating an appeal was never lodged. There is no suggestion in his affidavit that, even now, he is aware that the form was never lodged. 15 Other factors to which the Applicant refers relate to him having been in a state where he could not readily make decisions, in the few weeks after he was sentenced. He says: "I was on methadone even though I been addicted to speed, not heroin, and I wasn't thinking clearly. I was feeling depressed, I felt responsible for upsetting my mother … and my father's health was getting worse. I had also found out that my girlfriend was pregnant to someone else and that my relationship was over." 16 His father died in September 2007. He said: "I was feeling very bad and depressed as I was never going to see my father again, and my mum was also struggling to cope with depression, and I felt responsible. The last thing I was thinking about at this time was trying to appeal, and I thought that I had used up my one chance to appeal the severity of my sentence, so for some time I didn't even think about it, let alone discuss it with anyone, and just got on with my sentence. It wasn't until about October 2009 I started to think about the length of my sentence in comparison to a lot of the sentences I overheard other inmates getting. It started to sink in just how much of my life I have wasted in this place. I started to ask other inmates if they had heard of anyone appealing not just outside of 21 days, but after pulling the original appeal and appealing years later, and no one knew."

It was in January 2010 that he applied for Legal Aid. 17 His solicitor picks up the chronology thereafter. His application for Legal Aid was received on 18 January 2010, and was allocated to the practice of that solicitor on 11 February 2010. On that day, a solicitor from the Legal Aid office advised the court that the Legal Aid office was considering an application from the Applicant. Officers in the Legal Aid office decided not to request an extension of time unless counsel found merit in the matter. Counsel was briefed on 31 March 2010. 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 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]. … 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.

The Explanation for Delay 26 Much of the Applicant's affidavit explains his state of mind in the few weeks immediately after sentencing. That might be an explanation for why he decided to abandon the appeal that he had taken steps to instigate, and his fuddled state of mind in the weeks after his conviction provides some explanation for why he did not act during those weeks. However his explanation for the delay thereafter is little more than that he assumed he could not appeal outside time, and took no steps to find out whether his assumption was wrong. That does not seem to me to be a very strong reason. 27 His evidence about the effect his father's illness and death had on him, needs to be seen in the context of the psychological report that was available to the judge on sentence, which included: "He reported that his father became intoxicated with alcohol every day and that every couple of days his father's friends came to his home. They got drunk and on occasions they had fights. His father frequently assaulted him when he was drunk. He left home at the age of 14 years "because of dad - getting flogged all the time - I could not put up with it" ." 28 As well, even accepting that a man could feel regret and upset at the death of a brutal father, one must bear in mind that his father's death occurred in September 2007. His father's death does not explain anything like the full extent of the delay involved in the present case.

The Proposed Grounds of Appeal 29 The matters on which the Applicant seeks to rely, if leave is granted, are summarised in three grounds of appeal: "1. His Honour erred by imposing a non-parole period in excess of the customary ratio resulting in a non-parole period which is manifestly excessive. 2. His Honour erred in his approach to special circumstances. 3. (a) His Honour erred in finding that the break, enter and steal offence, the subject of count two, was aggravated on account of the victim's vulnerability. (b) His Honour erred in finding that the break, enter and steal offence, the subject of count three, was aggravated on account of the victim's vulnerability." 30 The first ground arises from the fact that the ratio of the aggregate non-parole period to the aggregate term is 76:90, ie 84.4%. 31 The obligation to impose a non-parole period when sentencing an offender arises under section 44 Crimes (Sentencing Procedure) Act 1999: "(1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). (2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision)." 32 Because section 44 is directed to sentencing concerning "an offence" it is a provision that should be complied with concerning each of the charges, if an accused is being sentenced for several different offences. Section 8(b) Interpretation Act 1987 provides that in any Act a reference to a word in the singular form includes a reference to that word in the plural form. Thus, section 44 also applies to the several sentences that are imposed if more than one offence is being sentenced for at the same time. In particular, section 44(2) applies to the relationship that the total of the non-parole periods has to the total of the term of the sentences imposed when several offences are being sentenced for at the same time. 33 The Applicant was aged 24 years at the time of being sentenced. He had acquired a very lengthy criminal history, predominantly involving crimes of dishonesty. He had grown up in Tasmania, and in the period of 1998 and 1999 had committed, according to the Crown, some 15 offences of aggravated burglary, 12 offences of burglary, 2 offences of attempted burglary, 24 offences of stealing, 3 offences of attempting to steal, 3 offences of trespass, 1 offence of escape, and 1 breach of bail. My examination of the Tasmanian records suggests this might understate the number of his offences somewhat, but as the records are not altogether clear I shall proceed as though the Crown summary is correct. For all his Tasmanian offences, he was sentenced to 9 months imprisonment, of which 4 months were suspended provided he did not commit any further offences of dishonesty for a period of 2 years. 34 He did not comply with that condition. During 2000, the Applicant committed 3 offences of aggravated burglary, 3 offences of stealing, 1 each of attempting to obtain goods by false pretences, destroying property, possession of ammunition when unlicensed, possession of a firearm whilst underage, use of an unregistered motor vehicle, failing to appear, and contempt of court. For all those offences, the Crown tells us, without objection by the Applicant, he was subjected to an aggregate of a further 6 months detention. 35 Between 2002 and the date of sentencing in 2007, he had appeared in the courts of New South Wales, and been convicted of a total of 28 offences, namely: "a. 14 offences of break, enter and steal; b. 1 offence each of stealing from a dwelling, enter dwelling with intent to steal, obtaining money by deception; c. 2 offences each of receiving/disposing of stolen property, goods in custody suspected of having been stolen, having custody of a knife, possession of a prohibited drug and possession of a cutting implement upon apprehension; as well as, d. 1 offence of entering enclosed lands." 36 He had been released from gaol approximately four months before he was arrested in connection with the last of the offences for which he was sentenced on 12 June 2007. The first of the offences taken into account in sentencing, namely the disposal of the stolen wedding ring set, occurred about two months after his release. 37 The Applicant left school aged 14, after year 9. He had not had any educational or vocational training since that time, and had had two days of employment in the entire time since he left school. 38 The Applicant grew up in a household that provided him with neither support nor example. A psychologists pre-sentence report described it as "a most dysfunctional and abusive home environment". His parents separated when he was 11 months old and he did not meet his biological mother until he was 14 years old. After leaving home because of his father's abusive behaviour, he lived with a sister for a few months, then on the streets. At the age of 15 he went to a juvenile institution for 9 months. He was in gaol at the age of 16. While he claims no problem with alcohol abuse, he admits to using cannabis from the age of 15, amphetamines from the age of 16, and "ice" from the age of 18. He also admitted to occasionally using heroin, but without becoming addicted to it. 39 A pre-sentence report of the Probation and Parole Service assessed him as unlikely to benefit from supervision from the service, because of his previous negative response to community based orders. 40 In his remarks on sentence, the judge observed. "In 2003 it appears he was given the chance to enter the William Booth Centre for rehabilitation. His record of offending shows a blatant lack of respect for the law, and other peoples rights and property and a refusal to learn, even when he was given the chance of rehabilitation. The pre-sentence report indicates that his response to supervision has generally been most unacceptable, with the offender breaching previous orders." 41 The judge also said: "His whole life history shows a person, who for the benefit of the community needs serious intervention, to resolve the various issues of drugs, recovery from a dysfunctional childhood, and no vocational experience or ability. However, he was given the opportunity for serious intervention with a chance to enter the William Booth Centre in 2003. The community is entitled to say enough is enough, he had the opportunity then, how can we keep giving him further opportunity, when he persists on preying on vulnerable old people, especially with the offence at the Village Life Retirement Home. I therefore cannot find any special circumstances to consider any special leniency, especially for the ratio of non parole to parole." 42 Later in his reasons, the judge said: "I have already stated that with his record of offending, I cannot find special circumstances to vary the non parole ratio." 43 His counsel at trial (who was not his counsel on the present application) had identified four matters said to justify a finding of special circumstances: His background His mental state at the time of the commission of the offences in relation to his drug problem. His long history of offending and incarceration and his need to break this cycle His need for rehabilitation and counselling in relation to drugs, his mental health, and living skills 44 In my view, it was open to the judge to take the view that the past history of the Applicant showed that he was less likely than many convicted criminals to benefit from spending the latter portion of his sentence in the community, under the supervision of the parole service. The sentences imposed still permitted the Applicant to serve the last 14 months of the aggregate sentence on parole. 45 Any review of the sentence would need to take into account not only the ratio of non-parole period to total term, but also the appropriateness of the sentences that made up the total term. The Applicant was accorded a considerable measure of generosity in the sentences on counts 1, 4, 5 and 6 being made totally concurrent. As well, the various offences disclosed on a Form 1 may have justified an even longer total term than was imposed. In particular, the offence relating to disposal of the stolen wedding ring set occurred on a date more than a month before the other offences, and, unlike some of the other Form 1 offences, was not connected with any of the offences that were the subject of a specific charge. 46 It is well within a sentencing judge's discretion to fix a balance of term that is less than one-third of the non-parole period for the sentence. I am not persuaded that there was any miscarriage of justice in the relationship between the non-parole period and the balance of term that was imposed in the present case. 47 Insofar as the notion of "special circumstances" has a statutory role to play in sentencing, it arises under section 44 only if the sentencing judge imposes a balance of term that exceeds one-third of the non-parole period. When the judge said, "I therefore cannot find any special circumstances to consider any special leniency, especially for the ratio of non-parole to parole" the "special leniency" he was referring to was the leniency that would be involved in having a balance of term that exceeded one-third of the non-parole period. 48 Ms Francis, counsel for the Applicant on the appeal, went so far as to suggest that the judge had made the type of error that should be corrected on appeal by failing to take into account, as a special circumstance, the Applicant's risk of institutionalisation. Fullerton J (with whom McClellan CJ at CL and Simpson J agreed) has recently, in Jackson v R [2010] NSWCCA 162 at [24] accepted that a risk of institutionalisation can be a basis for a finding of special circumstances. However, nothing in Fullerton J's judgment supports the proposition that risk of institutionalisation is a factor that a sentencing judge is legally obliged to take into consideration. In circumstances where counsel for the Applicant at the trial did not place reliance on risk of institutionalisation as a factor establishing special circumstances, the failure of the judge to advert to the risk of institutionalisation does not show legal error on his part. 49 Ms Francis drew our attention to the remarks of Grove J (with whom Simpson and RA Hulme JJ agreed) in Wakefield v R [2010] NSWCCA 12 at [26], where his Honour said: "It is true that, whilst the statute requires reasons to be stated for reducing the non-parole period against the stated formulation, no such requirement has been legislated if it is increased. However it has been stated in this Court more than once that it is expected that in circumstances where there is such an increase some reasons should be provided if only to forestall a conclusion that the specification was the result of error or oversight. In R v Dunn [2007] NSWCCA 312 it was said that this was especially the case where cumulation had taken place." 50 Here, even though the judge did not state in his remarks on sentence the ratio that the non-parole period bore to the total sentence, I would not conclude that the judge overlooked the ratio of non-parole to parole. The portions of the remarks on sentence that I have quoted show the reasons the judge had for imposing a shorter than usual balance of term, as a proportion of the entire sentence. He specifically used the phrases "ratio of non-parole to parole" and "non parole ratio" in the course of those reasons. 51 The proposed third ground of appeal arises from the judge, in the course of discussing aggravating and mitigating factors under section 21A Crimes (Sentencing Procedure) Act, having said: "The fact that the victims in some of the offences were elderly people could be regarded as a factor of aggravation as they being particularly vulnerable people." 52 In fact there was no evidence of the age of any of the victims. While counts 2 and 4 related to an offence against Mr Rogers, who occupied an apartment in a retirement home, there was no evidence about Mr Rogers' age. 53 The fourth charge related to a total of 52 individual transactions, totalling over $38,000, each conducted using Mr Rogers' debit card. Those transactions included seven withdrawals from a bank, while the rest of the transactions involved obtaining a variety of goods and services from a variety of suppliers, over the seven days to which the charge relates. Each transaction on Mr Rogers' debit card could fairly be described as preying on him. 54 The judge went too far in saying that the victims in some of the offences were elderly people. However, he would have been justified in saying that the victim of some of the offences was someone who was likely to be old enough to live in a retirement village, that that person's home was broken into and stolen from, and that that person's property was repeatedly depleted by the Applicant's dishonest use of the debit card. In my view, no material difference to the sentence would result from the judge having stated the position accurately, rather than by saying "the victims in some of the offences were elderly people". 55 Nothing in this examination of the proposed grounds of appeal shows that an appeal would have sufficient prospects of success to justify the considerable extension of time that the applicant seeks. 56 I propose that the application for extension of time be dismissed. 57 LATHAM J: I agree with Campbell JA. 58 PRICE J: I agree with Campbell JA. **********

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