Court of Appeal (WA)|2010-10-29|Before: Lure P, Buss JA, Mazza J

McKEY -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 210 (29 October 2010)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : McKEY -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 210

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentence - Extension of time to appeal after long delay - Failure to take into account a relevant consideration - Turns on own facts

McLeod v The State of Western Australia [2009] WASCA 233

1 McLURE P: The appellant seeks leave to appeal, and if leave is granted, to appeal against sentence.

2 The appellant was convicted on 16 February 2009 on his fast-track plea of guilty on one count of stealing a motor vehicle and wilfully driving it in a manner that constituted the offence of reckless driving. He was sentenced on the same date to 3 years' imprisonment.

3 There is a significant barrier to success in this case. The appellant was sentenced on 16 February 2009. The time for appealing expired on 9 March 2009. The appeal notice was filed on 22 July 2010, some 15 months out of time. As stated by the court in McLeod v The State of Western Australia [2009] WASCA 233:

A person applying for an extension of time must provide a satisfactory explanation for the delay. If there has been a lengthy delay, exceptional circumstances must be demonstrated unless it can be established that a miscarriage of justice will eventuate unless an extension is granted. To demonstrate that a miscarriage of justice is likely it may be necessary to do more than simply point to a ground of appeal that would have succeeded in a regularly instituted appeal [79].

4 There is no satisfactory explanation for the gross delay in this case. Further, there is nothing in the merits of the appeal which would justify the grant of leave. The only ground of appeal is in terms:

The learned sentencing judge erred in law by failing to take into account or by failing to adequately take into account the appellant's plea of guilty in determining the appropriate sentence.

5 The alleged failure to 'adequately take into account' a relevant sentencing consideration does not give rise to an appealable error. An appellant must establish that the decision maker failed to take into account a relevant matter. As those who practice in the field of administrative law would know, it is very difficult to prove that a decision maker has failed to take into account a relevant consideration. Mere absence of a reference in the reasons to the consideration is insufficient for that purpose. However, in this case it is apparent from the sentencing judge's reasons that he did take into account the appellant's plea of guilty. He opened his remarks with a reference to the appellant's plea of guilty and subsequently returned to that subject in the following terms:

When I look for factors to take into account in your favour I have to say that I'm struggling to see that there is very much. You have pleaded guilty, and saved the State and the community time and money thereby, but obviously given that you cannot clearly recall what you did on that night and given the overwhelming weight of evidence against you, your conviction it seems to me was inevitable (ts 11).

6 The ground of appeal has no reasonable prospect of succeeding. The same is the case even if the ground is treated in substance as a claim that the sentence is manifestly excessive.

7 The facts of the offending are as follows. After a confrontation between the appellant and the complainant, the appellant took the complainant's car keys and got into her car. The appellant reversed the car out of the driveway directly at another person, causing him to have to take urgent evasive action. The appellant then drove off. He was pursued by police with lights and sirens going but the appellant failed to stop. As the police drove next to the vehicle being driven by the appellant, he swerved into and collided with the police car. The appellant's vehicle then collided with some wooden bollards. Even then the chase did not stop. The appellant drove off for a short way before stopping and leaving the vehicle.

8 As noted by the sentencing judge, the circumstances of the offending were of a very serious kind, the appellant having put at risk the person standing in the driveway, the police officers who were involved in the chase and members of the community generally. The appellant was in a state of drug-induced intoxication at the time of the offence.

9 The appellant was aged 27 at the time of sentencing. His parents separated when he was very young which had a profound effect upon him. The appellant had been a regular consumer of prohibited drugs since the age of 14. He suffers from anxiety and depression which the sentencing judge concluded had been aggravated by his use of illicit drugs over many years. He had a significant record of prior offending which included drug offences, violence related offences and offences of dishonesty.

10 The pre-sentence report notes that the appellant had a tendency to blame others for his difficulties, had a poor understanding of personal responsibility and lacked capacity for effective decision making. He was seen as a poor treatment candidate unless and until his substance abuse decreased.

11 It is apparent, even from the cases cited by the appellant in his written submissions, that the sentence was within the range of sentences customarily imposed in this State. There is no arguable basis for a claim that the sentence is manifestly excessive.

12 The appeal is without merit. I would refuse an extension of time.

McLeod v The State of Western Australia

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Judgment (21 paragraphs)

McKEY -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 210 (29 October 2010)

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