Citation: Young v R [1999] NSWCCA 275
Court: NSW Court of Criminal Appeal
Date: 9 September 1999
Judge(s): Studdert J, Dunford J, Smart AJ
Background
The appellant was sentenced in the District Court to a minimum term of three years penal servitude and an additional term of three years for armed robbery committed in Broken Hill on 14 April 1997. The sentencing judge also took into account a related offence of self-administering amphetamines.
The appellant lodged an initial application for leave to appeal against sentence, but later filed a Notice of Abandonment. He did so because gaol authorities told him his custody classification would not advance while an appeal was on foot, and he feared being transferred away from his family in Broken Hill. He had received advice from a Legal Aid solicitor that his classification should not be affected by the appeal, but the prison governor maintained that it would be. The appellant ultimately decided to abandon the appeal to avoid prolonged separation from his family.
In April 1998, the appellant indicated he wanted to revive his appeal. He filed a fresh application in October 1998. The key procedural questions were whether he could withdraw the Notice of Abandonment and, separately, whether an extension of time should be granted, given that the initial application had also been lodged out of time.
Legal Issues
- Whether the appellant should have leave to withdraw his Notice of Abandonment, given the circumstances in which it was filed
- Whether an extension of time for leave to appeal against sentence should be granted
- Whether the sentence imposed by the District Court was manifestly excessive
- What role the merits of the grounds of appeal play in the exercise of discretion to grant procedural leave
Decision
Smart AJ (with whom Studdert J and Dunford J agreed) held that the circumstances in which the Notice of Abandonment was filed were sufficient to justify allowing its withdrawal. The appellant had abandoned his appeal not because he accepted the sentence was appropriate, but because of pressure applied by prison authorities linking his custody classification to the continuation of the appeal. The court noted that the approach of holding up classification pending the outcome of an appeal appeared no longer to be in use, and that it was improper for classification to be withheld on that basis.
On the question of extension of time, the court found that the initial application had been lodged marginally out of time, likely due to transmission difficulties from Broken Hill. The delay was not substantial. The merits of the appeal grounds were a relevant consideration in the exercise of the discretion to grant both the extension of time and leave to withdraw the abandonment. Where a miscarriage of justice is established, that weighs heavily in favour of granting procedural relief.
The court found that the original sentence was manifestly excessive and that there were special circumstances warranting a longer than usual additional term, taking into account the applicant's need for supervision and rehabilitation. The minimum term was reduced from three years to two years and six months, and the additional term was reduced from three years to two years.
The court also noted a concern about the quality of preparation on the first hearing date. The abandonment point had not been fully appreciated or developed, and relevant authorities had not been placed before the bench, requiring the matter to be re-listed before a full bench of three judges, to the inconvenience of other litigants.
Orders Made
- Leave granted to withdraw the Notice of Abandonment, deemed withdrawn accordingly
- Time for leave to appeal against sentence extended to 30 July 1999
- Leave to appeal against sentence granted
- Appeal against sentence allowed
- Sentence imposed by Twigg DCJ (minimum term of three years, additional term of three years) set aside
- In lieu thereof: minimum term of two years and six months commencing 21 April 1997 and ending 20 October 1999, plus an additional term of two years commencing 21 October 1999
Key Takeaways
- A Notice of Abandonment filed as a result of improper pressure, particularly where prison authorities wrongly linked custody classification to the continuation of an appeal, may be set aside on application.
- The merits of the underlying grounds of appeal are a relevant consideration when a court exercises its discretion to grant an extension of time or leave to withdraw a notice of abandonment. A strong case of miscarriage of justice weighs in favour of granting such relief.
- Withholding custody classification pending the determination of a sentence appeal is an approach the Court of Criminal Appeal identified as improper and, at the time of the decision, apparently no longer current practice.
- Where an initial application was lodged slightly out of time due to logistical difficulties rather than any failure on the appellant's part, that context bears on the exercise of discretion to extend time.
- Inadequate preparation by practitioners, including failure to identify and present relevant authorities, can cause avoidable delays and inconvenience to other court users, a concern the court expressly noted.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act (NSW)
Cases
- Grierson v The King (1938) 60 CLR 431
- R v Sunderland (1928) 28 SR (NSW) 26
- R v Rigby (1912) 7 CAR 111
- R v Moore (1920) 17 CAR 155
- R v Lesser (1935) 27 CAR 69
- R v Lawrence & 6 Ors (1980) 1 NSWLR 122
- R v Unger (1977) 2 NSWLR 990
- R v O'Donoghue (1987-1988) 34 A Crim R 397
- R v Cartwright (1989) 17 NSWLR 243
- R v Edward Malcolm Jeffery (unreported, NSWCCA, 16 December 1993)
- R v Brandy (unreported, NSWCCA, 28 October 1996)
- R v Coombe (unreported, NSWCCA, 24 April 1997)