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Court of Criminal Appeal 6 May 2005

Regina v Barco

[2005] NSWCCA 176

Assault & violenceTheft & property
CRIMINAL LAW AND PROCEDURE EXTENSION OF TIME FOR APPEAL GROSS DELAY EXCEEDING FOUR YEARS INSUFFICIENT EXPLANATION FOR DELAY EXTENSION SHOULD BE REFUSED

Citation: Regina v Barco [2005] NSWCCA 176
Court: Court of Criminal Appeal, New South Wales
Date: 6 May 2005
Judge(s): Grove J, Hulme J, Simpson J

Background

The applicant, a self-represented prisoner with an extensive criminal history, sought an extension of time to apply for leave to appeal against the severity of sentences imposed by Chief Judge Blanch in the District Court. The sentences arose from a guilty plea to escaping lawful custody in May 1999 and an armed robbery committed two days later, in which the applicant threatened a store employee and then a female motorist with a syringe, forcing her to drive him to Redfern Station. A breaking, entering and stealing charge was also taken into account at sentencing.

The sentencing judge imposed a fixed term of six months for the escape offence, accumulated on existing sentences as required by statute, and a minimum term of four years with an additional term of three years for the robbery. The applicant chose not to attend the Court of Criminal Appeal hearing, preferring to proceed on written documents so as not to disrupt his educational progress in custody.

The delay between the end of the 28-day appeal period and the application was approximately four years and nine months.

  • Whether the applicant had provided a sufficient explanation for the gross delay in lodging his appeal application, so as to warrant an extension of time
  • Whether any of the grounds advanced in the proposed appeal had sufficient merit to justify granting the extension despite that delay

Decision

The Court first addressed the adequacy of the applicant's explanation for the delay. The applicant argued that Corrective Services classification policies prevented him from seeking a reduction in classification until he had four years or fewer remaining to serve. Grove J rejected this explanation, finding no bar in that system to the applicant lodging court proceedings. The Legal Aid Commission's prisoners' legal service attends correctional facilities, and the Court found it implausible that the applicant could not, had he chosen to, have obtained legal advice during a span of more than four years.

Grove J noted the Court's established practice of not allowing time constraints to prevent relief where an appeal has genuine substance, and accordingly examined each ground of appeal on its merits. The first ground, concerning the applicant's security classification, was dismissed: the Court of Criminal Appeal does not exercise a supervisory administrative role over prison conditions, and the principle from R v Vachalec confirmed that such matters fall outside its judicial power.

Further grounds were similarly rejected. A psychiatric record submitted by the applicant did not establish any error in the sentencing judge's approach. A complaint about the exercise of discretion in imposing partial accumulation of sentences was found to be well within the range of proper sentencing discretion. The applicant's misreading of a statutory reference to the Justices Act 1902 as adding harshness to the sentence was corrected, and no error was found in the sentencing judge's application of the aggravating and mitigating factors under the Crimes (Sentencing Procedure) Act 1999.

None of the grounds disclosed legal merit or any demonstrated error by Chief Judge Blanch. Grove J concluded that, having regard to both the gross delay and the absence of any substance in the proposed appeal, the extension of time should be refused. Hulme J and Simpson J agreed.

Orders Made

  • Application for extension of time dismissed

Key Takeaways

  • A delay of nearly five years in bringing a sentence appeal is characterised as "gross delay," and the Court of Criminal Appeal will not treat an application for extension of time as a mere formality in such circumstances, as confirmed by reference to R v O'Hara [2005] NSWCCA 97.
  • Availability of the Legal Aid Commission's prisoners' legal service at correctional facilities is a relevant consideration when assessing the adequacy of a prisoner's explanation for failing to appeal within time.
  • The Court of Criminal Appeal exercises judicial power only and has no authority to issue administrative directions concerning prison classification, security management, or other conditions of a prisoner's custody.
  • Where an applicant cannot demonstrate merit in any proposed ground of appeal, the combination of gross delay and lack of substance will ordinarily be fatal to an extension of time application.
  • A misunderstanding of a statutory provision does not itself constitute a ground of appeal against sentence, particularly where the provision in question had no bearing on the character or length of the sentence imposed.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 51A
- Justices Act 1902 (NSW), s 51A (since repealed)

Cases
- R v Griffiths [2001] NSWCCA 130
- R v O'Hara [2005] NSWCCA 97
- R v Vachalec (1981) 1 NSWLR 351