Court of Appeal (ACT)|2015-02-04|Before: Murrell CJ

R v Harrington [2015] ACTCA 2 (4 February 2015)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

APPEAL - Application to appeal out of time - appeal against sentence − prejudice

Court Procedure Rules 2006 (ACT) rr 5332(2), 5405(2)

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Parker v The Queen [2002] FCAFC 133

R v Meyboom [2012] ACTCA 2

1. The Applicant seeks leave to appeal out of time from sentences imposed by Burns J on 13 November 2014. His Honour imposed a sentence of four years and six months' imprisonment for an offence of attempt to possess a marketable quantity of an unlawfully imported border controlled drug, namely cocaine, and a wholly concurrent sentence of 10 months' imprisonment in relation to an offence of trafficking in cocaine.

2. On 12 December 2014, one day out of time, the Applicant filed a notice of appeal. The Applicant had made a mistake as to when the 28 day appeal period expired. On 27 November 2014 (prior to the expiry of the appeal period), the Applicant had advised the Respondent that it was considering an appeal.

3. On 16 December 2014, the Applicant lodged an application for leave to appeal out of time. Regrettably, the incorrect form was lodged. When advised of the mistake, the Applicant lodged the correct form.

4. Having received no further contact from the Applicant, on 5 January 2015, the Respondent sent an email to the Applicant seeking confirmation that it had decided to lodge no appeal. On 12 January 2015 the Applicant informed the Respondent that it proposed to pursue an application for leave to appeal out of time.

5. The grounds of appeal that the Applicant wishes to pursue are that:

(a) The wholly concurrent sentences breach the principles in Pearce v R [1998] HCA 57; (1998) 194 CLR 610 and totality principles;

(b) Overall, the sentences are manifestly inadequate;

(c) The Respondent was not, in any practical sense, a first time offender and should not have been dealt with as such; and

(d) The sentences were discounted for utilitarian reasons, contrary to R v Cameron (2002) 209 CLR 339

6. The Respondent opposed the grant of the application on several bases. The Respondent referred to the Court Procedure Rules 2006, particularly r 5332(2). That Rule sets out requirements for an application for leave to appeal out of time. It refers to the contents of the affidavit that should accompany such an application. Such an affidavit must show the nature of the case, the questions involved and the reasons why leave should be given. The application should also be accompanied by a draft notice of appeal. The Respondent complained that hte Applicant had not complied with these requirements.

7. The Respondent referred to r 5405. Rule 5405(2) provides that the Court of Appeal may at any time "and for special reasons" give leave to file a notice of appeal. The Respondent referred the Court to the relevant case law, including Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, which was approved by the Full Court of the Federal Court in Parker v The Queen [2002] FCAFC 133. The Court was also referred to R v Meyboom [2012] ACTCA 2. In Meyboom Refshauge J emphasised the importance of providing the Court with information sufficient to enable the Court to assess the prospects of success of the proposed appeal and, inferentially, the other matters to be considered in connection with an application for leave to appeal.

8. On an application for leave to appeal the Court must consider the length and reasons for the delay, whether the delay has caused any prejudice to the Respondent, and the merits of the appeal.

9. Contrary to the submissions of the Respondent, I consider that there is an adequate explanation as to the length and reasons for delay. In the case of a Government authority, it is not particularly satisfactory that a notice of appeal is filed one day out of time. However, the delay has been explained. It was a mistake in relation to the expiry period.

10. The Applicant did advise the Respondent two weeks after the decision of the sentencing judge that an appeal was under consideration.

11. The Respondent submitted that it would be prejudiced if the application to appeal out of time was granted. The Respondent complained that there was prejudice associated with the delay. Where there has been a delay of one day (even perhaps a couple of weeks) it would be a rare case where substantial prejudice to a Respondent resulted from the delay alone.

12. It is not a relevant complaint of prejudice to say that an appeal would mean that the sentence could be increased. Relevant prejudice is any prejudice that is associated with the delay (not the appeal). For example, the delay may mean that the sentence has almost expired, or that the offender has made a lifestyle choice that would not have been made had the offender known that the matter would be appealed. In this case, the Respondent has not identified any relevant prejudice to the Respondent.

13. Finally, the Respondent argued that the proposed appeal was not arguable. However, there was a concession that there was an arguable case in relation to appeal ground (d) because the sentencing judge referred to a discount for utilitarian value in relation to a Commonwealth offence. Although there was little amplification of the proposed grounds of appeal, appeal ground (a) is at least arguable. Where different criminal actions are the subject of different charges, the sentences should usually be partly accumulated, but in this case the sentences were wholly concurrent.

14. The merits of proposed ground of appeal (b) are unknown as no material was put before the Court to support the arguability of that ground. Nor was the arguability of ground (c) explored on this application.

15. The delay has been explained. The appeal is arguable, although I have no view about the likelihood that the proposed grounds of appeal will be upheld. There is no relevant prejudice flowing from the minimal delay.

16. The Applicant is granted leave to appeal out of time against the judgment of Burns J given on 13 November 2014.

17. The notice of appeal is to be filed within seven days.

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.

Procedure Rules 2006

Court Procedure Rules 2006

R v Harrington [2015] ACTCA 2

At a glance

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Judgment (28 paragraphs)

R v Harrington [2015] ACTCA 2 (4 February 2015)

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Legislation Cited (2)

Cases Cited (3)