Citation: R v Thomas [2000] NSWCCA 265 (revised 23 August 2000)
Court: NSW Court of Criminal Appeal
Date: 12 July 2000
Judges: James J; Bell J
Background
The applicant had been convicted after a jury trial in the District Court of three offences committed on 24 May 1993: aggravated sexual intercourse without consent, indecent assault, and common assault. All three offences were perpetrated against a fellow prisoner in a shared cell at Goulburn Gaol. The victim was 20 years old at the time; the applicant was 38 and was already serving a sentence for armed robbery.
In August 1994, the District Court sentenced the applicant to seven years' penal servitude on the principal charge, consisting of a minimum term of five years and three months commencing 1 July 1995, together with an additional term of one year and nine months. Fixed terms of 18 months and six months were imposed for the remaining charges, each running concurrently with part of the principal minimum term.
No appeal or application of any kind was lodged until May 1999, nearly five years after conviction and sentence. The applicant initially sought to appeal against conviction, but that appeal was abandoned. He then sought to appeal against sentence, requiring both an extension of time and leave to appeal.
Legal Issues
- Whether the court should grant an extension of time in which to apply for leave to appeal against sentence, given a delay of approximately five years
- Whether the sentencing judge failed to apply the totality principle when structuring a sentence that would be served cumulatively on an existing sentence
- Whether the sentencing judge erred by not finding special circumstances under s 5(2) of the Sentencing Act, which would have justified an additional term exceeding one-third of the minimum term
Decision
The Court refused the extension of time, finding no satisfactory explanation for the lengthy delay between sentencing in August 1994 and the first application in May 1999. The Court noted that the applicant had access to legal advice during this period, including in connection with a separate personal injury claim heard in the District Court in February 1999. The original ground advanced for the delay, namely that a medical condition had only come to light in February 1999, related to the abandoned conviction appeal rather than the sentence appeal.
On the totality principle, the Court was not persuaded that the sentencing judge had overlooked the existing sentence. The judge was clearly aware of it, and the Court declined to infer that he had been unmindful of totality simply because his remarks on sentence did not address it in detail.
On special circumstances, the Court held that the sentencing judge's finding against special circumstances was open on the whole of the evidence, including the relevant passage from the psychiatrist's report. The Court also rejected the submission that the R v Simpson principle required, in every case of cumulative sentencing, that the additional term in the new sentence be proportioned to the combined minimum terms. An additional term of almost two years was in place under the sentences as imposed.
A further consideration weighed against the application: the minimum term of the principal sentence was due to expire within approximately two and a half months of the hearing, meaning any reduction would have produced only a marginal extension of the period available on parole.
Orders Made
- Application for an extension of time in which to apply for leave to appeal against sentence refused.
Key Takeaways
- A delay of approximately five years in seeking to appeal a sentence, without a satisfactory explanation, will ordinarily be fatal to an application for an extension of time.
- Where an applicant has had access to legal advice during the period of delay, the Court of Criminal Appeal will scrutinise closely any explanation offered for why an application was not brought sooner.
- The principle in R v Simpson (1992) 61A Crim R 58 does not automatically require the additional term in a cumulative sentence to be proportioned to the combined total of minimum terms across all sentences; the principle must be applied having regard to the circumstances of the particular case.
- A sentencing judge's finding that there is no acceptable evidence a prisoner would benefit from extended post-release supervision can be sustained even where a psychiatric report expresses qualified support for ongoing treatment, if that report does not clearly establish the requisite benefit.
- In assessing whether to grant a discretionary extension of time, the Court of Criminal Appeal may take into account whether the practical benefit of a successful appeal would be marginal, particularly where the minimum term is close to expiry.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61 (common assault), 61J (sexual intercourse without consent in circumstances of aggravation), 61L (indecent assault)
- Sentencing Act 1989 (NSW), s 5(2) (special circumstances)
Cases:
- R v Simpson (1992) 61A Crim R 58