Vlach v R

Judgment 1Macfarlan JA: I ask Price J to deliver the first judgment. 2Price J: George Vlach applies for an extension of time for leave to appeal against the sentence imposed upon him in the District Court for a charge of aggravated break, enter and steal contrary to s 112(2) Crimes Act 1900. The circumstance of aggravation was that the applicant committed the offence in company with two other persons. 3Mr Vlach appears in person on this application. 4The applicant entered a plea of guilty to the charge in the Local Court and adhered to his plea in the District Court. On 13 August 2010, he was sentenced by Zahra SC DCJ (the judge) to imprisonment of 3 years 4 months to commence on 15 July 2009, with a non-parole period of 1 year 4 months. The non-parole period expired on 14 November 2010 and the applicant was released to parole. The full term of the sentence has about 2 ½ months remaining, and expires on 14 November 2012. 5The maximum penalty for an offence contrary to s 112(2) Crimes Act is imprisonment for 20 years. A standard non-parole period of 5 years imprisonment has been prescribed. 6At the applicant's request, the judge took into account when imposing sentence seven other offences on a Form 1. Other than two driving offences, those offences are; possess prohibited drug (methylamphetamine) possess prohibited drug (cannabis leaf) - both offences being under s 10(1) Drugs Misuse and Trafficking Act 1985; possess equipment to administer drug under s 11(1) Drug Misuse and Trafficking Act; goods in custody under s 527C(1) Crimes Act and break enter and steal under s 112(1) Crimes Act. It is convenient to note that an offence under s 112(1) is punishable by imprisonment for 14 years. 7On 22 September 2010, the applicant filed a notice of intention to appeal that was extended until 22 September 2011. No further extensions of time were sought or granted. A notice of application for leave to appeal was filed on 17 April 2012, together with grounds of appeal and written submissions made in support of the grounds. 8As the application was filed out of time, the court's leave is required to pursue the application. In opposing a grant of leave, the Crown submits there is neither a satisfactory explanation for the delay nor is there merit in the appeal. 9In exercising a discretion with respect to an extension of time under s 10(1)(b) Criminal Appeal Act 1912, the Court has regard to the prospects of the appeal succeeding and will usually require some satisfactory explanation of why an appeal was not brought within the time allowed, especially if the delay was considerable: R v Beattie [2000] NSWCCA 201 at [17]; Edwards v R [2009] NSWCCA 199 at [8]. 10The facts of the primary offence may be briefly stated. Shortly after midday on 21 June 2009, the victim left his apartment in a residential block in Ultimo. On leaving, he placed his security access cards in the unit letterbox. Peter Gidaro, one of the applicant's co-offenders, went to the letterbox a short time later and removed the access cards. Some minutes later, the applicant drove his car down the driveway of the secure car park in the residential block. The victim's access cards were used to activate the car park roller door and the applicant drove into the car park. The applicant, Gidaro and an unknown male walked around the car park and attempted to gain entry to parked vehicles. Access was obtained to two cars owned by the victim, being a van and a utility. Both vehicles contained a quantity of tools and other items that were stolen and placed in the applicant's vehicle. The stolen property had a value of about $1,015. CCTV surveillance cameras had captured the activity near and inside the car park. 11The applicant was arrested for the possession of prohibited drugs and for driving offences on 15 July 2009. He was questioned about the Ultimo break and enter, and made admissions to being involved. During a subsequent search of his home, police found stolen tools and clothing consistent with that recorded on film as having been worn by one of the offenders. 12The break, enter and steal charge on the Form 1 occurred on 1 February 2007 in Canada Bay. The applicant forced entry to residential premises through a garage and stole property valued at $4,720.00. 13The applicant's extensive prior criminal history commenced in 2000 when he was 24 years old. He has convictions for drug offences, offences of dishonesty, a firearms offence and a contravention of a apprehended domestic violence order. 14When the offence of break, enter and steal on the Form 1 was committed, the applicant was subject to five separate 12 month s 9 bonds for offences that included larceny and receiving stolen property and a two year s 9 bond that had been imposed for contravening an apprehended domestic violence order. 15At the time of the commission of the primary offence, the applicant was the subject of two sets of parole, the first being from a sentence imposed by the Parramatta Drug Court on 28 November 2008 for an offence of stealing that expired on 14 February 2010. The judge remarked (ROS at 8): "Before the expiry of that non-parole period [the applicant] was sentenced on the 4 March 2009 on a count of Enter Dwelling with Intent to imprisonment of seven months commencing on that day. The non-parole period of four months expired on the 3 July 2009 and the full term expired on the 3 October 2009. On the 20 April 2009, on appeal before the Parramatta District Court the non-parole period was reduced to 3 months and two weeks. He was admitted to parole on the 17 June 2009. Consequently the primary count of aggravated Break and Enter was committed some four days after release on parole for this offence. Further he was still subject to parole on the sentence handed down at the Parramatta Drug Court on the 28 November 2008. The full term of that sentence did not expire until the 14 February 2010." 16The judge observed that the commission of offences whilst on conditional liberty was a serious aggravating factor. 17The applicant's proposed grounds of appeal are as follows: