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Court of Criminal Appeal 25 August 2010

Arja v R

[2010] NSWCCA 190

DrugsTheft & property
CRIMINAL LAW APPLICATION FOR LEAVE TO APPEAL INORDINATE DELAY WHETHER A LESSER SENTENCE WARRANTED.

Citation: Arja v R [2010] NSWCCA 190
Court: NSW Court of Criminal Appeal
Date: 25 August 2010
Judge(s): Basten JA, Hall J, Latham J

Background

The applicant had pleaded guilty in the District Court to two counts of aggravated robbery and one count of knowingly driving a stolen vehicle, all committed in early March 2007. The sentencing judge imposed an aggregate head sentence of six years with a non-parole period of four years, commencing 1 April 2007. The applicant was also referred to the Compulsory Drug Treatment Programme under the Drug Court Act 1998.

A notice of intention to appeal was filed by the applicant's then solicitors on 17 July 2008, but that notice expired on 17 January 2009 without any further steps being taken. The applicant attributed the inaction to bad advice from a fellow inmate, but he had access to legal representation during that period. He later escaped from the Drug Treatment Programme, had the order revoked, and eventually obtained legal aid in February 2010. An administrative error by the Legal Aid Commission (treating the notice as expiring in January 2010 rather than January 2009) led to an extension being granted on a mistaken basis, and the matter ultimately came before the Court of Criminal Appeal in August 2010.

By the time the application was heard, the applicant's non-parole period had only seven months left to run. Approximately three and a half years had elapsed since the offences were committed.

  • Whether the Court should grant an extension of time to bring the sentence appeal, given the lengthy and largely unexplained delay
  • Whether the sentencing judge erred by failing to refer expressly to the applicant's guilty pleas in the remarks on sentence
  • Whether, even if error were established, a lesser sentence was nonetheless warranted

Decision

On the question of delay, Latham J (with whom Basten JA and Hall J agreed) found that no satisfactory explanation had been provided for the lapse of the notice of intention to appeal, nor for the further delay between October 2009 and February 2010 before a new notice was filed. Basten JA clarified that while "exceptional circumstances" language sometimes appears in earlier authorities such as R v Lawrence, that framing should not be understood as imposing a rigid fetter on the Court's discretion. The real inquiry centres on whether a satisfactory explanation for the delay has been given and whether the proposed appeal has merit. Neither criterion was met here.

On the substantive ground of appeal, Latham J accepted that the sentencing judge's remarks on sentence contained no express reference to the guilty pleas. However, her Honour was not persuaded this constituted error. Shortly before pronouncing sentence, the judge and counsel had exchanged discussion that explicitly included the R v Henry guideline judgment, which directly addresses sentencing for aggravated robbery and is based on a guilty plea. The sentences actually imposed for the individual robbery offences were consistent with the Henry guideline. That exchange, taken in context, demonstrated that the judge had the guilty pleas in mind.

Even on the assumption that error could be established, Latham J found no warrant for a lesser sentence. The offences involved deliberate violence against retail workers on consecutive evenings, were committed one day after the expiry of a bond, and included a subsequent high-speed police pursuit. The aggregate sentence and non-parole period were held to be entirely appropriate to the overall criminality involved. The application for an extension of time was refused on both the delay and the merits grounds.

Orders Made

  • The application for an extension of time to appeal was refused.

Key Takeaways

  • Where an applicant seeks an extension of time to appeal a sentence, the two critical considerations are whether a satisfactory explanation for the delay has been provided and whether the proposed appeal has demonstrable merit. Absence of both is fatal to the application.
  • The Court of Criminal Appeal clarified that references to "exceptional circumstances" in older authorities such as R v Lawrence describe a practical warning about delay, not a formal threshold that fetters the Court's discretionary power to extend time.
  • A sentencing judge's failure to mention guilty pleas expressly in the remarks on sentence does not automatically constitute error. Pre-sentence exchanges on the record that directly engage guideline judgments premised on a guilty plea can demonstrate that the pleas were taken into account.
  • Sentences consistent with the R v Henry guideline for aggravated robbery (which is itself based on a guilty plea) can support an inference that the sentencing court gave effect to the discount for a guilty plea, even without explicit acknowledgment.
  • Administrative error by a legal representative or government body, such as the Legal Aid Commission's misreading of the expiry date for a notice of intention to appeal, does not automatically provide a satisfactory explanation sufficient to warrant the Court exercising its discretion to extend time.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 10
- Criminal Appeal Rules, rr 3B, 28
- Crimes Act 1900 (NSW), ss 95(1), 154A(1)(b), 166
- Drug Court Act 1998 (NSW), s 18B

Cases:
- McCall v The Queen [2010] NSWCCA 174
- R v Lawrence (1980) 1 NSWLR 122
- R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Heilpern [2006] NSWCCA 311
- R v Lao [2003] NSWCCA 315