Citation: [2007] NSWCCA 17
Court: NSW Court of Criminal Appeal
Date: 22 January 2007
Judge(s): Adams J, Howie J, Price J
Background
The applicant had pleaded guilty in August 2002 to two counts of causing danger with a firearm and one count of malicious wounding. He was sentenced in the District Court at Coffs Harbour to an effective term of six years imprisonment, commencing 27 February 2001, with a non-parole period of four years.
The applicant filed a notice of intention to appeal against sentence in September 2002, but that notice lapsed in March 2003. He did not file a formal notice of application for leave to appeal until August 2006, more than three years out of time, and without any accompanying application for an extension of time.
The apparent trigger for the belated appeal was the applicant's dissatisfaction with the Parole Board's refusal to release him on parole, rather than any identified error in the original sentencing. His only articulated complaint concerned the Parole Board's decision, not the sentence itself.
Legal Issues
- Whether the applicant should be granted an extension of time to file a notice of appeal against sentence, given the significant delay of more than three years beyond the expiry of the original notice of intention to appeal.
Decision
Adams J noted that the applicant's stated ground of complaint related solely to the Parole Board's refusal to release him on parole, and not to any error in the sentence imposed by Christie QC DCJ. The Court observed that the appeal appeared to have been prompted by dissatisfaction with that Parole Board decision, following the unsuccessful application before James J in April 2006.
By the time the matter came before the Court of Criminal Appeal, the applicant had in fact been released on parole on 19 October 2006. The Registrar had written to the applicant at two addresses provided by parole authorities, but received no response. On the hearing date, the applicant was called twice and did not appear.
The Court drew the inference that, having been released on parole, the applicant no longer had any interest in pursuing the appeal. In those circumstances, the Court declined to grant the extension of time, and all three judges agreed that leave should be refused.
Orders Made
- Leave to extend time to file a notice of appeal is refused.
Key Takeaways
- A notice of intention to appeal has a fixed lifespan, and failure to file a formal notice of application within that period requires a separate application for an extension of time.
- Where a significant and unexplained delay exists in prosecuting an appeal, the Court of Criminal Appeal may refuse to grant an extension of time, particularly where no substantive sentencing error is identified.
- The Court of Criminal Appeal drew a clear distinction between a complaint about the Parole Board's exercise of its discretion and a genuine ground of appeal against the sentence originally imposed.
- In refusing the extension, the court drew the inference that release on parole had extinguished the applicant's practical interest in the appeal, reinforced by his failure to respond to correspondence and his non-appearance at the hearing.
- Procedural steps taken by the Registrar, such as writing to the applicant at known addresses, formed part of the record supporting the court's conclusion that the applicant had effectively abandoned the matter.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 93G (causing danger with a firearm) and s 35 (malicious wounding)
- Crimes (Administration of Sentences) Act 1999 (NSW)
Cases:
No specific cases were cited in the judgment.