WA v R

Procedural background 9A Notice of Intention to Appeal was filed on 6 November 2012, which lapsed on 5 May 2013. There was a grant of Legal Aid on 10 December 2012. However, a Notice of Application for Leave to Appeal (including proposed grounds and submissions) was filed only on 17 January 2014. The applicant had turned 21 some four months earlier, and had been transferred to an adult correctional facility. 10The Crown opposes the application for an extension of time. It observes that "[t]here appear to be considerable periods of time when no action was taken, despite Legal Aid being granted on 10 December 2012". 11The applicable principles are well established. In all cases in which an extension of time is sought, as this Court (constituted by Hoeben CJ at CL, Johnson and Bellew JJ) said in Abdul v R [2013] NSWCCA 247 at [53]: "all relevant factors need to be considered - the length of the delay, the reasons for the delay, the interests of the community, the interests of the victim and whether, if an extension of time were refused, substantial injustice would result. This last factor will inevitably require an assessment of the strength of the proposed appeal although as Etchell made clear, that assessment can be carried out in a 'more summary fashion' than would be done in an application for leave to appeal that was brought within time." Those principles have very regularly been applied: see (for example) Alpha v R [2013] NSWCCA 292 at [1]-[2], [15] and [80]-[81]; Golossian v R [2013] NSWCCA 311 at [27]-[28]; Outram v R [2013] NSWCCA 329 at [18]-[24]; Simon v R [2013] NSWCCA 328 at [23]; Jawish v R [2014] NSWCCA 62 at [7]-[9]; Miles v R [2014] NSWCCA 72 at [55]-[63]. 12Further, in Edwards v R [2009] NSWCCA 199 at [8], Johnson J said, in a passage which has likewise been regularly applied: "the Court will usually require some satisfactory explanation as to why an appeal was not brought within the time allowed." 13After judgment was reserved in this matter, special leave was granted in Kentwell v The Queen and O'Grady v The Queen [2014] HCA Trans 113, following a hearing during which a challenge was made to some of the decisions referred to above, notably, Abdul. Nevertheless, we propose to apply the principles reproduced above, for the following reasons. 14First, those principles represent the settled approach of this Court. Secondly, they were expressly invoked by the Crown's written submissions (paragraph 6), and were not disputed by the applicant's written submissions in reply, or in oral address. Thirdly, those principles insist on regard being had to the merits of the proposed appeal ("inevitably"), and the decisions illustrate that although the merits may be dealt with "in a more summary fashion" than in circumstances where no extension of time was required, nevertheless in most cases the merits remain the Court's primary consideration. Fourthly, the approach is directly informed by the principle of finality (especially, by what was said in Etchell v R [2010] NSWCCA 262; 205 A Crim R 138 at [19]-[24]), and there is nothing in more recent decisions of the High Court to detract from that principle's continuing application in this area. Indeed, the force of the principle of finality is reinforced by the reliance placed upon it by all five members of the Court in Achurch v The Queen [2014] HCA 10 at [36] and [42]. Fifthly, to the extent that it is contended that an application requiring a substantial extension of time should be treated identically to one brought within the time limits imposed by the Legislature (a proposition which appears to have been central to the applications for special leave granted in Kentwell and O'Grady), we would respectfully disagree. Some weight must be given to statutory time limits; to do otherwise is to flout the legislative command. As was said in Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424 at [38]: "The time limit for the bringing of an appeal to this Court under the Criminal Appeal Act 1912 reflects the principle of finality in litigation: R v Unger [1977] 2 NSWLR 990 at 995-996; R v Gregory at [39]-[41]. There is provision for extension of time to appeal and this power should be exercised with the interests of justice in mind, given the usual consequences of conviction following trial on indictment. However, the longer time passes without an appeal being filed, the more solid ought be the expectation of the community, witnesses, victims and the families of victims that the criminal proceedings are over. This is a significant consideration to be taken into account on a leave application. Should an appeal against conviction succeed and a retrial is ordered, witnesses will be required to testify once again, with the further passage of time resulting from a delayed appeal having the potential to affect detrimentally the administration of justice." 15The question of the extension of time arises acutely on this application, where by reason of the delay, the applicant has served almost three-quarters of the non-parole period of imprisonment. He was transferred to an adult correctional facility when he turned 21, almost a year after he had been sentenced and some 9 months after the grant of Legal Aid. Nevertheless, an important aspect of the proposed grounds of appeal contends that the whole of the non-parole part of the sentence should have been served in a juvenile institution. There was ample time for the leave application to be determined within the time established by legislation, and before the applicant turned 21. That invites an examination of the circumstances in which that time was permitted to elapse. 16The affidavit in support of the application does not provide a full explanation for the delay. It is made by an employed solicitor who says that she "now has delegated carriage" of the proceeding. The affidavit does not say when the solicitor first became involved in the proceeding. It does not identify the solicitor who presently has carriage of the proceeding. It does not identify who was involved in prosecuting the proceeding when the firm accepted instructions, in around November 2012. 17The affidavit identifies a deal of correspondence between 1 May 2013 and 7 January 2014, although the only letter annexed is one dated 20 June 2013. That letter is not signed, nor is its author identified. However it may be inferred (from the identifying initials) that the deposing solicitor did not at that stage have even delegated carriage of the proceeding. The affidavit contains no real explanation for the delay between 10 December 2012 (when there was a grant of Legal Aid) and briefing senior counsel on 1 May 2013. The only matter that is mentioned that took place in this five-month period was the receipt of a "Non-Acceptance of Brief Form" from the Public Defender's Office on 11 March 2013. There is no precise description of what was sent to that office, or when. There is no explanation at all of what happened in the eight weeks thereafter, before a brief was sent to senior counsel. 18It appears that no request was made for copies of the transcripts and exhibits until May 2013, more than six months after the firm had been retained and had caused a Notice of Intention to Appeal to be filed. 19There is no explanation of why it took until 10 January 2014 for the solicitor to have discovered that the Notice of Intention to Appeal had expired in May 2013. 20In short, there is no satisfactory explanation of what must be regarded as substantial delay in circumstances where that delay (a) occupied the larger part of the unserved non-parole period of the sentence the subject of the proposed application for leave to appeal, and (b) caused this application only to be heard after the applicant had turned 21 and was transferred to an adult facility. 21It remains necessary to consider the strength of the proposed grounds of appeal, in exercising the discretion whether or not to extend time. Notwithstanding the regrettable and substantially unexplained delay, if appellable error were shown, the interests of justice would favour granting the extension that is sought. 22In January 2014, a proposed Notice of Appeal with five grounds was lodged, accompanied by submissions developing them. The Crown supplied written submissions in response. 23On the afternoon before the application was listed for hearing, a document styled "Applicant's Reply" was filed by senior counsel newly briefed to appear. Helpfully, the document indicated that only one of the five proposed grounds of appeal was now pressed. It is fair to observe that, notwithstanding its title, in substance it amounts to a new submission in chief (it is a document of eight pages and does not purport to respond to the five paragraphs in the Crown's submissions which had dealt with the previous formulation of that ground); counsel candidly acknowledged as much. It is also fair to observe that it advances the applicant's case on that ground as effectively as may be done. 24The sole proposed ground that is now pressed is that the sentencing judge erred in failing to find special circumstances.

The sentencing judge's Remarks on Sentence relevant to special circumstances 25The sentencing judge had regard to the applicant's expressions of remorse, although his Honour said that it was noteworthy that he did not hear from him in the witness box, that he was on the run for some weeks after the offence, that when arrested he did not make a full confession of what he had done and that a report from juvenile justice said: "whilst [the offender] expressed remorse at the consequences of his actions, he appeared to normalise the use of a firearm and level of violence in the current offence." 26Nevertheless, the sentencing judge was satisfied that the applicant was remorseful. His Honour was plainly aware that at the time of the offence, the applicant was aged 16 years and 10 months, had been held in custody for almost 3 years, and was from a profoundly disadvantaged background, having been exposed from a very early age to many forms of abuse of alcohol, illicit drugs and criminality. His Honour said: "so extensive was that exposure that, by the time of the offence, the offender regarded a life of crime and the abuse of illicit drugs as essentially normal. I am satisfied that his life has been almost completely bereft of appropriate role models. In particular, his mother has long struggled with a dependency on alcohol." The sentencing judge recorded that the applicant had never had gainful employment, and had been abusing illicit drugs for some years prior to the shooting. He had a not insignificant criminal record, including a large number of property offences and offences involving violence (including resisting police, escaping police custody and stalking or intimidation). His Honour noted that the applicant was on probation when the offence was committed. However his Honour said that: "the criminal record of the offender, although lengthy, does not demonstrate that he has been repeatedly sentenced to detention with no effect. Nor are the convictions for offences suggestive of violence of great seriousness." 27His Honour referred to being impressed by the evidence of the applicant's aunt whom he described as "someone who has been able to divorce herself from the criminality that engulfs the rest of the extended family of the offender". The sentencing judge also referred to the good progress made by the applicant while in the structured environment of children's detention centres (including completing Years 10 and 11 of high school). 28His Honour expressly had regard to the special principles contained in s 6 of the Children (Criminal Proceedings) Act 1987 (NSW), and noted that the offence was caused at least partly by the applicant's immaturity, combined with the powerfully antisocial upbringing to which he had been subjected through no fault or choice of his own, and that he was motivated by a wrong-headed desire to protect his brother and his cousin. However, his Honour also noted that the repeated firing of what his Honour described as "effectively a semi-automatic pistol" down a suburban street could hardly be described as the crime of a child, and that the applicant was almost 17 and had left school some time before. His Honour said expressly, "had the offender not been a child at the time of the offence, the sentence would be substantially longer": at [58]. 29His Honour had regard to the sentences imposed upon the applicant's brother and cousin following their pleas of guilty to manslaughter. His Honour said at [61]: "Despite the submission of defence counsel in this matter, it seems to me that any non-parole period imposed on the offender that was shorter than the non-parole periods imposed upon his brother and his cousin would, bearing in mind the brief overview of the objective and subjective features of their matters that I have provided, demonstrate erroneous disparity. I say that whilst taking full account of the age of the offender. The fact is that the brother and the cousin were involved in a violent and unacceptable confrontation with a fellow citizen and foresaw the possibility of something worse happening; in stark contrast, the offender sprayed bullets down a suburban street and took the life of that citizen." 30His Honour directed a section of his reasons to special circumstances. Since that is the sole remaining proposed ground of appeal and it is submitted that that reasoning discloses House v The King error, it is convenient to reproduce that reasoning: "62. Defence counsel submitted that special circumstances are made out, and that it would be appropriate to reduce the length of the non-parole period to some degree. He drew attention to the pressing need that the offender will have for assistance if he is to escape his upbringing, and the aspects of his personality that have been the result. It is also clear that the offender, upon release, will still be a very young man, with his whole life ahead of him. Finally, it is clear that this sentence will constitute the first substantial deprivation of liberty that the offender will have suffered in his life. There will be a very significant process of readjustment when he is released. The Crown Prosecutor did not resist the submission about special circumstances. 63. The submission of defence counsel has a great deal of force. As I have said, the offender has already shown potential whilst in custody, and it is to be hoped that that is the starting point of a new life that will be able to be built upon when he is released. It is also true that, by the time he is released, the offender will have been cut off from the community for a substantial period, and his readjustment will be difficult and challenging. 64. However, the sentence that I shall impose in a moment will feature a time on parole that is not insignificant. Furthermore, I have come to the view that to reduce any further the non-parole period that I propose to impose would not adequately reflect the objective seriousness of the offence and the moral culpability of the offender, even taking into account all of the subjective aspects, including his age. In that regard, I have considered what was said by the Court of Criminal Appeal in such cases as Maglis v R [2010] NSWCCA 247 and R v West [2011] NSWCCA 91. Of course, I have no intention of achieving a variation of the usual statutory ratio by impermissibly increasing the head sentence that I otherwise consider appropriate. 65. Having reflected on the matter, I do not propose to disturb the ratio between the head sentence and the non-parole period." 31It was common ground before the sentencing judge that if a non-parole period were to be imposed that could result in the applicant not being transferred to an adult correctional centre, it would need to be no longer than 4 years and 3 months (that reflecting the date on which the applicant would become 21 years and 6 months of age and the operation of s 19 of the Children (Criminal Proceedings) Act). His Honour said at [67]: "I do not consider that such a non-parole period would appropriately reflect the objective gravity of the crime of the offender, even taking into account his age at the time of the offence, his remorse, the utilitarian discount, and his background. I also consider that any such non-parole period would demonstrate erroneous disparity with regard to the sentences imposed upon his brother and his cousin." 32However, his Honour did find, for the purposes of s 19(3)(a) of that Act, that special circumstances were established justifying the detention of the applicant as a juvenile offender up until the day he turned 21. His Honour said: "I have made that finding on the basis of the need to avoid disruption to the progress that has already been made; the fact that he was not transferred to an adult gaol upon turning 18; the fact that he needs time to prepare himself for the transfer to an adult gaol when he turns 21; and the fact that I believe that it would be unduly harsh for him to be peremptorily transferred to an adult gaol on the same day that I impose sentence."

Appellable error in failing to find special circumstances? 33Section 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides merely that the balance of the term of a sentence of imprisonment must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances. Thus the finding of special circumstances is a precondition or "gateway" or, as it has been said, a "statutory fetter upon the sentencing discretion" to the exercise of a discretionary power to impose a longer non-parole period: R v GDR (1994) 35 NSWLR 376 at 379. 34There was no obligation upon the primary judge to make a finding, although (as his Honour noted), it was common ground that a finding of special circumstances was available on the evidence. There was of course an obligation upon his Honour to resolve the submissions advanced before him. His Honour did so. 35Little attention was given in the written submissions to the nature of the role of an appellate court where the failure to make a finding of special circumstances is challenged. Senior counsel for the applicant, correctly, observed that it was not strictly a question of House v The King error in the exercise of discretion. Either the Court is satisfied that there are special circumstances, or it is not; cf Foley v Ellis [2008] NSWCA 288 at [3]; Finch v Telstra Super Pty Ltd [2010] HCA 36; 242 CLR 254 at [29]; DSG Holdings Australia Pty Ltd v Helenic Pty Ltd [2014] NSWCA 96 at [85]-[86]. However, counsel acknowledged that little turned on this aspect, especially having regard to the analysis by Spigelman CJ in Simpson v R [2001] NSWCCA 534; 53 NSWLR 704 at [57]-[73], who concluded at [73]: "The decision is first one of fact - to identify the circumstances - and, secondly, one of judgment - to determine that those circumstances justify a lower proportionate relationship between the non-parole period and the head sentence. There are well known restraints on an appellate court from interfering with decisions of this character. As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive." 36Accordingly, counsel for the applicant was content to proceed on the basis that it was necessary to identify House v The King error in the reasoning process leading to the failure to find special circumstances. It is convenient to proceed on that basis, without necessarily endorsing it. 37The sentencing judge's reasoning process was said to disclose four errors of principle. The first error identified was in [65] of the sentencing judge's remarks, that his Honour did "not propose to disturb the ratio between the head sentence and the non-parole period". True it is that statute does not impose any particular ratio as a default position. However, it seems that the whole of the debate before the primary judge on this issue was directed to a finding of special circumstances so as to permit a ratio of less than 75%, which explains the judge's language. Such language is common in this area (see eg Simpson at [68] per Spigelman CJ ("justify a lower than statutory proportion")). In any event, nothing turns on the point, for the sentencing judge gave the applicant the minimum non-parole period available absent a finding of special circumstances. 38The second submission advanced in support of the proposed ground of appeal was based on the reason given by the sentencing judge at [64] that "the sentence that I shall impose in a moment will feature a time on parole that is not insignificant". It is said that the primary judge did not make a finding that a parole period of two years would be sufficient to satisfy the considerations accepted by him to support a finding of "special circumstances". This does not disclose error. 39It was open to the primary judge to form the view that the two years on parole was not insignificant. Indeed, that is plainly the case. There is no requirement, expressly or impliedly, to make a further finding about the prospects of rehabilitation in that two-year period. The applicant's written submissions proceed to assert that "[t]here is no line of authority in NSW supporting a general view that parole periods longer than two years are inappropriate". This, again, does not address the question demanded by House v The King, which is whether error is disclosed by finding in this case that the two-year period on parole was not insignificant. 40The third alleged error identified in the applicant's submissions turned on the second sentence in [64]; it was that "[t]he sentencing judge has, in substance, committed the reverse error to that of the sentencing judge in R v West [2011] NSWCCA 91 - given 'undue emphasis' to objective seriousness". Once again, this does not disclose error. 41This sentence within the remarks of the sentencing judge must be read as a whole. The applicant's submission would have more force if the concluding words "even taking into account all of the subjective aspects, including his age" were omitted. Read as a whole, there is no undue focus on objective criminality. The submission in substance is merely an invitation to review the broad discretion conferred upon the sentencing judge on the merits. 42The fourth alleged error identified is based on a passage in the sentencing judge's remarks which precedes the section on "Special circumstances", at [61] which is reproduced above. It is his Honour's conclusion that "any non-parole period imposed on the offender that was shorter than the non-parole periods imposed upon his brother and his cousin would, bearing in mind the brief overview of the objective and subjective features of their matters that I have provided, demonstrate erroneous disparity". This was said to be "a particularly serious error"; it was said that the sentencing judge used the non-parole period imposed on the co-offenders as an effective starting point. 43We accept that if that was what the sentencing judge did, it would disclose error. However, we respectfully disagree that the Remarks on Sentence should be read in the way for which the applicant contends. To the contrary, the submission reflects a misreading of the Remarks on Sentence read as a whole. 44Although perhaps there is a measure of infelicity in this sentence of the sentencing judge's reasons, we consider that all that his Honour was doing, on a fair reading of those remarks, was (a) rejecting a submission which had been put based on parity, and (b) succinctly summarising the relative culpabilities of the applicant, his brother and his cousin, and emphasising the objective seriousness of the offence. Although one criticism made in writing (but not orally) was that the applicant (and not his brother nor his cousin) was a child, his Honour expressly (in the immediately following sentence in [61]), took "full account of the age of the offender". The point of the statement is manifest by the concluding sentence of the paragraph: "The fact is that the brother and the cousin were involved in a violent and unacceptable confrontation with a fellow citizen and foresaw the possibility of something worse happening; in stark contrast, the offender sprayed bullets down a suburban street and took the life of that citizen." 45The judge's reasoning reflects what Spigelman CJ described in Simpson v R [2001] NSWCCA 534; 53 NSWLR 704 at [63] as: "the ultimate constraint that the non-parole period must itself appropriately reflect the criminality involved in the offence." 46This Court heard elaborate argument developing this submission, not all details of which are summarised in the foregoing, although we trust that its essential aspects have been. We take that abbreviated course for two reasons. 47The first is that we are conscious that this is not an appeal, but an application to extend the time, and so it is not necessary, and arguably not appropriate, to address the submissions in the same level of detail as an application for leave to appeal against sentence which has been regularly brought. The second is that let it be assumed, favourably to the applicant, that some error be established in relation to special circumstances. Notwithstanding the bleak circumstances in which the applicant found himself, we do not consider that any lesser sentence (which in the present context means a finding of special circumstances and a smaller non-parole period) is warranted. We bear in mind that the applicant (a) had the benefit of backdating the whole of the sentence to the day he was arrested, (b) was in breach of the terms of his conditional liberty when the killing occurred, and (c) had received the benefit of a finding of special circumstances for the purposes of s 19(3)(a) of the Children (Criminal Proceedings) Act. 48For those reasons, the applicant has failed to demonstrate a sufficiently arguable case to warrant the substantial extension of time required to bring this application. The interests to which this Court must have regard in the exercise of the discretion invoked by the applicant include not merely those personal to him, but also the interests of the community as a whole and of the victim's family. Leave to extend the time within which to appeal is refused.

Amendments 28 May 2014 - Names of parties amended Amended paragraphs: Coversheet 10 June 2014 - The word "maximum" has been changed to "minimum". Amended paragraphs: 37 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 May 2014