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11
Court of Criminal Appeal 15 November 2010

ETCHELL v R

[2010] NSWCCA 262

Also reported as (2010) 205 A Crim R 138
Assault & violenceFraud & dishonestyTheft & propertyPublic order & justice offences
APPEAL PRACTICE AND PROCEDURE EXTENSION FOR TIME TO APPEAL CRIMINAL LAW APPEAL PROCEDURE

Citation: Etchell v R [2010] NSWCCA 262
Court: New South Wales Court of Criminal Appeal
Date: 15 November 2010
Judge(s): Campbell JA; Latham J; Price J

Background

The applicant pleaded guilty in the District Court at Orange to six counts arising from a series of break and enter offences and related fraudulent transactions committed in the Dubbo and Wellington areas during mid-2006. The offending involved two residential break-ins, a commercial break-in, and the dishonest use of stolen debit and credit cards to obtain goods and services totalling over $45,000. The sentencing judge also took into account additional offences on Form 1, including two assaults on police officers at the time of arrest.

The applicant received an aggregate sentence of seven years and six months, with an aggregate non-parole period of six years and four months, commencing on 21 August 2006. He sought to appeal against sentence, but did so well outside the 28-day statutory window, requiring an application for an extension of time. Both parties argued the merits of the proposed appeal as if the extension had been granted.

  • Whether the court should grant an extension of time in which to seek leave to appeal against sentence, given the significant delay
  • Whether a miscarriage of justice occurred because the balance of term (the parole period after release) was less than one-third of the total non-parole period
  • Whether a miscarriage of justice occurred because the sentencing judge misdescribed the victims of certain offences as "elderly people" when no evidence of the victims' ages had been led

Decision

On the question of extension of time, the Court applied established principles requiring consideration of the reason for the delay, the strength of the proposed grounds of appeal, and the public interest in the finality of judicial decisions. Campbell JA (with Latham J and Price J agreeing) concluded that none of the proposed grounds had sufficient prospects of success to justify granting the considerable extension sought.

On the first substantive ground, the applicant argued that the balance of term for two of the counts was fixed at less than one-third of the non-parole period, which he contended was impermissible. The Court examined the sentencing remarks and found that the judge had explicitly addressed the ratio of the non-parole period to the balance of term, identifying specific reasons for the shorter balance. The Court was not persuaded that the judge had overlooked the relevant ratio or that any error had been established.

On the third ground, the Court acknowledged that the sentencing judge did go too far in describing the victims as "elderly people" when there was no evidence of any victim's age. However, what was properly available to the judge was an observation that the victim of certain offences was someone likely to be old enough to reside in a retirement village, whose home was broken into and whose debit card was used fraudulently across 52 separate transactions over seven days. The Court concluded that no material difference to the sentence would have resulted had the judge stated the position accurately.

Because none of the proposed grounds demonstrated sufficient prospects of success, the application for extension of time was dismissed.

Orders Made

  • Application for extension of time dismissed.

Key Takeaways

  • Granting an extension of time to appeal requires the court to weigh the reason for the delay, the merits of the proposed grounds of appeal, and the principle of finality of judicial decisions. A substantial delay will not be excused unless the proposed grounds are sufficiently strong.
  • A sentencing judge's explicit engagement with the ratio of the non-parole period to the balance of term in the sentencing remarks is relevant to whether appellate error can be established. The Court of Criminal Appeal declined to infer oversight where the judge had specifically addressed that ratio.
  • A factual misdescription in sentencing remarks does not automatically produce a miscarriage of justice. The Court assessed whether the error, corrected to what the evidence actually supported, would have made a material difference to the sentence imposed.
  • No error was established merely because a judge described a victim as "elderly" without evidentiary support, where the accurately stated facts (a resident of a retirement village whose home was burgled and whose accounts were repeatedly drained) would have warranted similar characterisation in terms of vulnerability.
  • In dismissing the application, the Court confirmed that proposed grounds must demonstrate a real prospect of success. Grounds that would not have altered the sentencing outcome do not meet that threshold.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW), ss 112(1), 113(1), 178BA(1), 344A
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 10(1)
- Criminal Appeal Rules, r 3A
- Interpretation Act 1987 (NSW)

Cases:
- Arja v R [2010] NSWCCA 190
- Edwards v R [2009] NSWCCA 199
- Jackson v R [2010] NSWCCA 162
- McCall v R [2010] NSWCCA 174
- R v Gregory [2002] NSWCCA 199
- R v Ramsden (1972) Cr L Rev 547
- R v Unger [1977] 2 NSWLR 990
- Wakefield v R [2010] NSWCCA 12