Citation: WA v R [2014] NSWCCA 92
Court: NSW Court of Criminal Appeal
Date: 27 May 2014
Judge(s): Leeming JA; Fullerton J; RA Hulme J
Background
The applicant pleaded guilty to manslaughter on the twelfth day of his trial for murder, having shot and killed a man on a public street in Cabramatta West on 2 August 2009 following a neighbourhood altercation. He was 16 years and 10 months old at the time. On 26 October 2012, he was sentenced to 8 years imprisonment commencing 23 November 2009, with a non-parole period of 6 years. The sentencing judge applied a 25% discount for the guilty plea and directed that the applicant serve as a juvenile offender until he turned 21.
A Notice of Intention to Appeal was filed in November 2012 but lapsed in May 2013. Legal Aid was granted in December 2012. The formal application for leave to appeal was not filed until January 2014, more than a year after the notice of intention lapsed, by which time the applicant had turned 21, been transferred to an adult correctional facility, and served almost three-quarters of his non-parole period.
The Crown opposed the extension of time, noting that considerable periods passed without action despite Legal Aid having been granted.
Legal Issues
- Whether the Court should grant an extension of time within which to file the leave to appeal application, given the substantial and poorly explained delay
- Whether the sentencing judge erred in the determination of the non-parole period, particularly in relation to "special circumstances" under the Children (Criminal Proceedings) Act 1987 (NSW)
- Whether the sentence was disproportionate compared with those imposed on the applicant's co-offenders
Decision
The Court applied the well-established principles governing extensions of time, which require consideration of the length and reasons for the delay, community interests, the interests of the victim, and whether refusing the extension would result in substantial injustice. The last factor requires at least a summary assessment of the merits of the proposed appeal.
The Court acknowledged that special leave had recently been granted in two cases before the High Court that challenged aspects of these principles, but declined to depart from the established approach. The Court reasoned that the principles reflect the legislative command embodied in statutory time limits, align with the principle of finality in litigation, and had been expressly invoked without objection by both parties in the present case.
On the question of delay, the Court found the explanation unsatisfactory. The application could have been determined within the statutory time frame and well before the applicant turned 21, yet almost nine months passed after the grant of Legal Aid without action. The fact that the applicant had by then served nearly three-quarters of his non-parole period made the delay acute, particularly given that a central ground of appeal argued he should have served the entire non-parole period in a juvenile facility.
On the merits, the Court assessed the proposed grounds, including the comparison with co-offenders' sentences and the alleged failure to find special circumstances. Assuming in the applicant's favour that some error in relation to special circumstances could be established, the Court was not persuaded that any lesser sentence was warranted. The applicant had received the benefit of backdating his sentence to the date of arrest, had been in breach of conditional liberty at the time of the killing, and had already received a finding of special circumstances under the Children (Criminal Proceedings) Act. The proposed appeal did not disclose a sufficiently arguable case to justify the substantial extension sought.
Orders Made
- Extension of time within which to appeal refused.
Key Takeaways
- A substantial and inadequately explained delay in filing an application for leave to appeal against sentence will weigh heavily against the grant of an extension of time, even where Legal Aid was granted early in the period of delay.
- The principle of finality in litigation underpins the Court of Criminal Appeal's approach to extension of time applications, with the interests of the community and the victim's family forming part of the relevant discretionary considerations alongside those personal to the applicant.
- Where an extension of time is sought, the merits of the proposed appeal remain the primary consideration; they may be assessed in a more summary fashion than in a timely application, but they cannot be ignored.
- In assessing the merits, the Court of Criminal Appeal found that even if some error in the treatment of special circumstances could be assumed, the overall sentence remained appropriate given the gravity of the offending, the applicant's breach of conditional liberty at the time, and the sentencing benefits he had already received.
- Procedural timing matters: a proposed ground of appeal arguing that a juvenile offender should have served the entirety of a non-parole period in a juvenile facility is significantly undermined where, by reason of the applicant's own delay, the applicant has already been transferred to an adult facility before the appeal can be heard.
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 19
- Crimes Act 1900 (NSW), s 18
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Cases:
- Abdul v R [2013] NSWCCA 247
- Achurch v The Queen [2014] HCA 10
- Alpha v R [2013] NSWCCA 292
- Edwards v R [2009] NSWCCA 199
- Etchell v R [2010] NSWCCA 262; 205 A Crim R 138
- Golossian v R [2013] NSWCCA 311
- House v The King (1936) 55 CLR 499
- Jawish v R [2014] NSWCCA 62
- Miles v R [2014] NSWCCA 72
- Outram v R [2013] NSWCCA 329
- R v GDR (1994) 35 NSWLR 376
- Simon v R [2013] NSWCCA 328
- Simpson v R [2001] NSWCCA 534; 53 NSWLR 704