Sanderson v The Queen [2015] VSCA 315

1 On 6 December 2012 the applicant was sentenced to a total effective sentence of five years one month imprisonment with a non-parole period of three years six months on two charges of burglary, three charges of theft, a charge of aggravated burglary, a charge of common assault, and a summary charge of dealing with property suspected of being the proceeds of crime.

2 On 10 February 2015 the applicant filed an application (dated 6 February 2015) for an extension of time in which to file notice of an application for leave to appeal the sentences. The Registrar of Criminal Appeals refused that application on 3 March 2015. By a notice dated 13 March 2015 the applicant sought to have his application for an extension determined by the Court of Appeal.

Relevant legislative provisions and legal principles

3 Pursuant to s 278 of the Criminal Procedure Act 2009 ('the Act') a person may appeal to the Court of Appeal against a sentence imposed if the Court of Appeal gives the person leave to appeal. Pursuant to s 279 of the Act an application for leave to appeal is to be commenced by filing a notice within 28 days after the day on which the person is sentenced, or within the period of any extension granted. Pursuant to s 313 of the Act the Court of Appeal or, in accordance with the Rules of Court, the Registrar of Criminal Appeals may extend the time within which a notice of application for leave to appeal may be filed. Under r 2.23(1) of the Supreme Court (Criminal Procedure) Rules 2008 applications for an extension of time under s 313 of the Act are to be made in the first instance to the Registrar. Under r 2.23(3)(b) if the Registrar refuses the application the applicant may elect to have the application determined by the Court of Appeal.

4 The principles which apply where an application is made for an extension of time for leave to appeal are well established. They were set out by Winneke ACJ (with whom Phillips and Eames JJA agreed) in R v Davis.[1] Winneke ACJ said:

The bases upon which this court will grant an application to extend time for leave to appeal against conviction and/or sentence are not in doubt. Those bases were conveniently summarised by Gowans J in the case of R v Darby and encapsulated in the reasons for judgment of the Full Court in the case of R v O'Keefe. They have been followed in this court subsequently in numerous applications, including R v Martin, R v Craker and other cases. As Gowans J said in the case of Darby:

The principles which govern an application for extension of time are as follows:

(1) the prescription by the statute of the time limit for giving notice is intended to secure finality, and compliance is intended to be required in the ordinary case;

(2) extension of the time is a matter for discretion of the Court, and the applicant must put material and considerations before the Court which will persuade it to exercise its discretion in favour of an extension;

(3) rigid restrictions cannot be imposed on the exercise of discretion, but in general the Court will require special and substantial reasons for extending the time;

(4) the longer the time which elapses since the expiration of the statutory period and the more the changes that have taken place in the meantime, the more exceptional will the circumstances put before the Court have to be;

(5) it is the practice of the Court not to grant any considerable extension of time unless it is satisfied that there are such merits in the proposed appeal that it would probably succeed;

(6) a reasonably satisfactory account of the failure to comply with the statutory requirements needs to be forthcoming.

In the case of O'Keefe, the court, having referred to those principles set forth by Gowans J, went on (at 5 of the report):

An applicant who has been dilatory or has acted in such a way as to indicate that he does not intend to appeal has small, if any, claim to the exercise of the discretion of the Court in his favour. On the other hand, if the applicant has acted promptly, his case will be considered very differently. Where there has been a long delay the practice of the Court has not been to grant the extension sought unless it is clear that the decision is attended with such doubt as to make it probable that the appeal will succeed.[2]

5 In Ludwig v The Queen this Court observed that in cases where the delay is not great and has been explained, at least to some extent, it is not necessary for the applicant to meet the high threshold of establishing that the proposed appeal 'would probably succeed'.[3]

Materials relied upon in support of the application

6 The applicant swore an affidavit on 6 February 2015 in the support of his application for an extension of time. In that affidavit he swore as follows:

1. That in the County Court of Victoria, before Her Honour, Judge Millane, I pleaded guilty to 2 counts of Burglary, 3 counts of Theft, I count of Aggravated Burglary, I count of Common Law Assault and 1 count of Deal with proceeds of Crime and was sentenced, on the 06 December 2012, to a Maximum period of imprisonment of 5 years and 1 month, with a non-parole period of 3 years and 6 months.
2. That in the psychological state of mind that I was in for a considerable period of time and being unable to obtain funding assistance, I was unable to consider in a reasonable manner, at that time, the ramifications of what was involved in relation to making Application for Leave to Appeal in this Honourable Court.
3. That being a layperson, representing myself, it has taken me until this time, as a result of numerous reasons, as is elucidated in my 'Written Case', to attempt to prepare an Application for Leave to Appeal; despite applying myself in a timely and committed manner, to the best of my abilities.
4. That one of the reasons for part of the delay in finally being in the position to file such an Application was that, in discussion with a member of the Registry Office of the Court of Appeal on the 04 February, 2015, I was advised that there was no record of material which I had faxed on two occasions to the Registry, relevant to this Appeal.

7 The applicant has filed a notice of application for leave to appeal setting out a proposed ground, and he has filed a written case which he had prepared himself.

The applicant submits, with respect, that the sentence was manifestly excessive, in the circumstances, that the 'Principles of Verdins' (R v Verdins, R v Buckley, R v Vo [2007] VSCA 102) should have been considered and whilst it was not assessed as that which may have seen it being appropriate in the case of the applicant, it is respectfully submitted that it should have been for the reasons elucidated in the applicant's written case.

9 The applicant's written case is not in a form which one would expect from a legal practitioner but it sets out the applicant's submissions. There are two. First, he submits that the sentences imposed were manifestly excessive. Secondly, he submits that the principles in Verdins[4] ought to have been applied in his case. This submission is based upon a report by the psychologist, Mr Jeffrey Cummins, dated 20 November 2012 which had been tendered on the plea hearing. His submission accepts that the Verdins principles were not relied upon by his counsel at the plea hearing. The parts of Mr Cummins' report which it is suggested ought to have resulted in the application of the principles in Verdins are references to the applicant having become 'institutionalised', and Mr Cummins' opinion that the applicant 'most probably has a borderline personality disorder'.

10 Counsel for the Director of Public Prosecutions ('DPP') opposed any extension of time. It was submitted on behalf of the DPP that the explanation for the delay is inadequate and that the applicant's prospects of success on the appeal are not such as to warrant an extension.

11 Counsel for the DPP told the Court that the applicant's counsel on the plea hearing had expressly disavowed reliance on Verdins, other than in relation to what was described as 'moderate depression' at the time of sentencing. The relevant page of the transcript of the plea was provided to the Court.

Circumstances of the offending and sentencing remarks

12 The relevant offences were committed over two days on 4 and 5 March 2012. Two burglaries and thefts were committed when the applicant broke into apartments on consecutive days stealing electronic equipment and jewellery. The more serious offending was constituted by a third incident, also on the second day of the offending, in which the applicant knocked down the front door of an apartment, threatened the occupant with a large butcher's knife, and stole his wallet and phone.

13 The sentencing judge referred to the applicant's prior criminal history which, as she pointed out, was both extensive and relevant. He has numerous prior convictions for burglaries, as well as other dishonesty and drug offences. Numerous sentences of imprisonment had been imposed upon him. He was on parole at the time of commission of these offences, having been sentenced in 2007 and 2008 for numerous dishonesty offences including an aggravated burglary with an offensive weapon. The applicant's parole was cancelled. When sentenced he had completed serving the unexpired portion of those earlier sentences (seven months and 19 days). As a result, the pre-sentence detention declared by the sentencing judge was only 43 days notwithstanding that the applicant had been in custody since March 2012.

14 The sentencing judge set out the circumstances of the offending. In that context she made the first of many references to Mr Cummins' report. The explanation given by the applicant to Mr Cummins for the offending was his relapse into drug use, both ice and heroin.

15 The sentencing judge addressed the gravity of the offences indicating that in her view the objective gravity was 'at the lower end' of offences of this type. She referred to the mitigating effect of the admissions which had been made and the guilty plea.

16 The sentencing judge referred to the applicant's personal circumstances and in that context referred extensively to Mr Cummins' report.

17 The references in Mr Cummins' report to institutionalisation were statements of the applicant's assessment of his own position. Mr Cummins observed:

Significantly, he regards himself as being institutionalised ...

18 The sentencing judge referred to Mr Cummins' opinion that the applicant 'likely' had a borderline personality disorder. The sentencing judge also referred to the fact that he presented at examination as remorseful and regretful.

19 Having read Mr Cummins' report, it is evident that the sentencing judge accepted all of the matters of significance which Mr Cummins set out. Mr Cummins' final conclusion was that the applicant's prospects for long term rehabilitation were 'guarded' and he recommended participation in a residential drug rehabilitation programme.

20 After setting out the submissions made in relation to sentence, the sentencing judge imposed the following sentences:

[s 74(1) of the Crimes Act 1958]

10 years [s 74 (1) of the Crimes Act 1958]

[s 76 (1) of the Crimes Act 1958]

[s 76(3) of the Crimes Act

[s 74(1) of the Crimes Act 1958]

[s 77(1) of the Crimes Act 1958]

[s 77(2) of the Crimes Act 1958]

[s 320 of the Crimes Act

[s 74(1) of the Crimes Act 1958]

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

6AAA Statement: 6 years 9 months with a non-parole period of 4 years 6 months

Other relevant orders: Forfeiture Order; Compensation order

21 In the course of oral submissions Mr Sanderson expanded upon the earlier attempts which he says he made to launch an appeal and which were referred to in paragraph 4 of his affidavit. He said that initially he asked his lawyers to appeal but was told by them that they did not think legal aid would fund an appeal. Sometime later, he was unsure how much later, he said he found out that an appeal had not been filed. He said that he attempted to file an appeal himself sometime in 2013 by way of a fax from Port Phillip Prison. He could not recall to whom he sent the fax. He says he then sent further documentation at the end of 2014. He says that when he made enquiries of the Court he was told that that documentation could not be located. He says that he was later told that they had been located. He said that those documents are the ones now before the Court.

22 The documents now before the Court are stamped as received by the Court on 10 February 2015. They are dated 6 February 2015 (Application for Extension of Time to file Notice of Appeal, Affidavit in Support, and Notice of Application for Leave to Appeal Against Sentence) and 5 February 2015 (Written Case).

23 Given the length of the delay the explanation given by the applicant, both in his affidavit and orally, is inadequate. There is no material upon which the Court could properly act in relation to what the applicant deposed to in his affidavit concerning his state of mind. Making every allowance for the applicant's position as a lay person, the extent of the delay here cannot be justified on the basis that it was necessary for him to prepare the relevant documents himself. Even if one accepted what the applicant says about his unsuccessful attempts to file an appeal, there

24 Perhaps more importantly, the proposed appeal has no reasonable prospect of succeeding.

25 The sentences imposed are not manifestly excessive. They are well within the range of the sentencing options available, given the nature of the offending and the applicant's prior criminal history.

26 Mr Cummins' report could not have been a basis for application of the principles in Verdins. Reliance on Verdins was correctly expressly disclaimed by counsel for the applicant in the course of the plea.

27 This application must be refused. The explanation for delay is inadequate. There is no reasonable prospect of the proposed appeal succeeding.

29 For the reasons stated by Whelan JA, I agree that the application, for an extension of time, should be refused.

[1] [2003] VSCA 173; (2003) 6 VR 538.

[3] [2015] VSCA 335 [7].

[4] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.