Adrian Mills v Police No. Scgrg-00-309, Scgrg-00-310
[2000] SASC 362
•2 November 2000
POLICE v ADRIAN MILLS
[2000] SASC 362Magistrates Appeal
Civil
1................ GRAY J.......................... The appellant Adrian Mills has filed two appeals against sentences imposed by magistrates. They have been heard together.
The First Appeal
2 The first appeal was against the sentence of imprisonment imposed by Mr Frederick SM on 16 November 1999 for the following offences;
(a).. Unlawful possession of an air conditioning unit - committed on 9 January, 1999;
(b).. Receiving power tools to the value of $6,194 - committed between 15 and 20 August, 1999;
(c).. Unlawful possession of power tools - committed on 19 August 1999;
(d).. Driving a motor vehicle whilst disqualified - committed on 29 October, 1999;
(e).. Breaching a bail agreement - committed on 29 October, 1999;
(f).. Illegal use of a motor vehicle - committed on 29 October, 1999;
(g).. Failing to perform community service work ordered on 20 April 1999 as part of the penalty for an offence of driving a motor vehicle whilst disqualified.
The appellant pleaded guilty to all seven offences.
The Background Facts
3 On 9 January 1999, the appellant and his associate approached an electrical store with an airconditioning unit for sale. The owner became suspicious because of the low price. His concern increased when he saw that the unit had been forcibly damaged. He notified the police. The appellant and his associate returned to be paid, saw the police and fled. When apprehended, the appellant refused to be interviewed. Later he admitted the offence and his participation in the loading and transportation of the unit. He asserted that his associate was the principal offender and that he just assisted.
4 On 19 August 1999, the police attended at the home of the appellant and found a quantity of power tools. A number were identified as being stolen and were the subject of the receiving charge said to have occurred between 15 and 20 August 1999. The remainder were the subject of the unlawful possession charge said to have occurred on 19 August 1999. When questioned, the appellant declined to make any statement. In submissions, the only explanation offered was that he was storing the tools for a friend who delivered them and was to collect them.
5 On 29 October 1999, the appellant was apprehended whilst driving. The vehicle had been reported stolen and it transpired that the defendant was driving whilst disqualified. At that time, he was away from his home contrary to the terms of a bail agreement. He had also failed to perform the community service which had been imposed for an offence of driving whilst disqualified. When interviewed, the appellant declined to provide any information to the police or answer any questions. In submissions, it was put that he had become depressed, used amphetamines and had gone driving with a friend.
6 Most of the offences were committed whilst the appellant was on parole.
7 In 1992, the appellant was sentenced to a term of imprisonment of five years and six months for armed robbery. This was to be served concurrently with a term of imprisonment of seven years and six months for break and enter with intent to commit a felony. His criminal history extended over some 16 years and involved numerous offences for dishonesty, including the offences of illegal use and driving whilst disqualified.
The Sentence
8 The appellant was sentenced by Mr Frederick to 16 months' imprisonment. This sentence was to be served cumulatively upon an outstanding non-parole period of 1 year, 2 months and 20 days, making a total head sentence of 2 years, 6 months and 20 days. A non-parole period of 15 months was fixed and the sentence ordered to commence forthwith. The appellant was disqualified from holding or obtaining a driver's licence for a period of 12 months on the charge of illegal use.
9 The following sentencing remarks were made:
"The defendant has been charged with a number of offences to which he has pleaded guilty. The offences singularly are serious although as his learned counsel has pointed out, in the context of the different types of offences, breach of bail, drive disqualified, illegal use and so on, some are more serious than others. However, the defendant has some 21 pages of criminal convictions. It is a cause of some concern that he continues to offend, his first offence being at the age of 16 or 17. He is now 32 and whilst I am not going to do it now it would be interesting to add up all the breaks he has committed over the last 16 or so years. He was convicted of armed robbery in 1992 and was sentenced to 5 years 6 months. Then there is the 7 years 6 months for building break and felony. I must not impose a punishment that will crush him.
The defendant has said that he proposes to change his life. He proposes to do some courses and obtain regular employment to support his wife and children rather than have the community support him and his family for the rest of their lives on social service benefits. If he is telling the truth that is to his credit but if he is lying then no doubt he will lapse into further criminal behaviour and go back to gaol. It is difficult in the context of sentencing standards to impose what is a reasonable penalty without crushing him. I have regard to the highly persuasive submissions of learned counsel. Having regard to all that has been put to me pursuant to S.18A of the Sentencing Act and taking into account all files including the breach of bond file I impose one penalty. I sentence the defendant to 16 months to be served cumulative upon his outstanding non-parole period of 1 year, 2 months 20 days, total 2 years 6 months 20 days. I set a non-parole period of 15 months to commence forthwith. On the illegal use the defendant will be disqualified from holding or obtaining a driver's licence for a period of 12 months forthwith. I have just realised that I have given him 2 months credit, not one month but I will let it go. Court fees payment forthwith."
The Appeal
10 Counsel for the appellant submitted that the sentence was manifestly excessive. He further said that error was discernible in the magistrate’s approach to sentencing. It was submitted that he had not indicated his approach to each offence before he considered the exercise of his discretion pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) ("Sentencing Act") or the principle of totality. It was further said that he had not made any reduction for the pleas of guilty. Finally it was submitted that the magistrate had failed to give proper weight to the appellant's submissions. This was said to arise from anger, illustrated by intemperate language.
11 Counsel did not complain that an immediate custodial sentence had been imposed. There was no challenge to the licence disqualification.
The Sentence was Appropriate
12 I reject the submission that the sentence is manifestly excessive. I do so having regard to the extensive criminal history of the appellant, including the offences of a similar kind, the number of separate and distinct offences committed over the period from January 1999 to October 1999, the fact that most of the offences were committed whilst he was subject to release on parole; the need for both personal and general deterrence, and the need to protect the community from his ongoing criminal conduct. I consider that the sentence imposed is moderate and within the appropriate range, having regard to all of the circumstances, including the totality of the appellant's criminal conduct.[1]
[1] Postiglione v R (1996-1997) 189 CLR 295
13 A starting point of two years is not inappropriate. Allowing for a reduction of 15-20% for the pleas of guilty leaves the sentence imposed as an appropriate penalty. I accept the submission put by the Crown that the non‑parole period of less than one half of the head sentence was lenient.
Section 18 A and The Totality Principle
14 Section 18A of the Sentencing Act enables a court to impose one sentence for a number of offences. General sentencing principles, including the principle of totality continue to apply.
15 The principle of totality was described by King CJ in R v Rossi[2] as follows:
"There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect ..."
[2] (1988) 142 LSJS 451 at 453
16 Following the approval of this passage in Postiglione v R[3] McHugh J continued:
"The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. (R v Holder [1983] 3 NSWLR 245 at 260). Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. ...
Recent decisions in the Court of Criminal Appeal (R v Bakhos (1989) 39 A Crim R 174; R v Harrison (1990) 48 A Crim R 197; R v Gordon (1994) 71 A Crim R 459) have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence."
[3] (1997) 189 CLR 295 at 308
17 Counsel for the appellant drew attention to the remarks of Doyle CJ in R v Major[4] where he said :
"I agree with Olsson J that if a single sentence is imposed, using 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”), the judge must first consider the sentence that would have been imposed had separate sentences been imposed in respect of each offence. As part of that process the judge must consider whether the sentences imposed would be concurrent or cumulative. I agree that in the present case the starting point is that each sentence would be cumulative.
If the judge does not do this, there is a real danger that a single sentence imposed under s.18A of the Act, will lack a proper basis, and will not appropriately reflect the overall criminality involved. The process of imposing a single sentence is not a process under which a lesser sentence than would otherwise be appropriate is to be imposed.
In saying this I do not mean that the sentencing judge must determine the sentence that would have been imposed, in respect of each separate offence, with complete precision. But, because the single sentence must represent an adequate punishment for the criminal conduct involved, it is necessary that it be closely related to the separate sentences that would otherwise have been imposed."
[4] (1997-1998) 70 SASR 488
18 However these remarks were clarified and qualified in R v Symonds[5] where Doyle CJ said: (with the concurrence of Prior and Mullighan JJ)
'In Major the Court was not stating a process that must be followed in the sense that failure to follow it is itself an error of law in the sentencing process. The Court did no more than remind sentencing judges of the need to relate a single sentence imposed under s18A of the Criminal Law (Sentencing) Act 1988 (SA) to the sentence that would have been imposed if the power conferred by s18A were not available. What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s18A, but not to impose upon them a rigid formula that must be followed.
In some cases the only safe course to follow will be to approach the sentencing process initially as one would do so if the powers conferred by s18A were not available. The power conferred by s18A will then be used to express the sentence as a single sentence, rather than as a number of separate sentences with orders as to concurrence and accumulation as may be appropriate. But there will be other cases when this approach is not necessary, and it is appropriate and convenient to go directly to the single sentence to be imposed. The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outlined in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major. Subject to that, however, I adhere to what I said in Major and to the desirability, as a general rule, of relating a single sentence to be imposed to the individual sentences that would otherwise be imposed."
[5] Judgment No [1999] SASC 217
19 The magistrate invoked s 18A. On two occasions he made reference to not wishing to impose a crushing sentence. I infer that these remarks were a reference to the totality principle. There was no need for him to elaborate on the way in which he considered the individual sentences. The totality principle operated to reduce the otherwise appropriate sentences. There is no basis for concluding that the magistrate did not properly consider each offence before coming to his conclusion. No error has been demonstrated.
Reduction for Pleas of Guilty
20 In R v Wall and Richards[6] the South Australian Court of Criminal Appeal when reviewing the long standing practice of reducing a sentence for a plea of guilty said:
"The same public interest which calls for a substantial reduction in sentence is best served by making public the reasons for and the extent of the reduction. The disclosure of these matters by sentencing judges is of the utmost importance. There may be exceptional cases where the fact of or extent of any discount should be suppressed. However such cases will be rare.
A distinction can and should be drawn between matters going to a judge's general sentencing discretion and matters calling for a particular reduction in the public interest. The former may best be left without explicit disclosure of each component considered and the weight given to it. Reductions in sentence for public interest reasons such as a plea of guilty and cooperation with the police as an informer, raise very different considerations. As has been pointed out, there is a public interest in the disclosure of the fact and extent of the reduction. This is by reason of the benefit to the community. It is only public disclosure that will lead to public awareness. The public interest is best served by disclosure. Non disclosure is a disservice to the public interest.
Sentencing Judges should identify the fact that a reduction is to be made, the reason for it, and the extent of the reduction, unless there is good reason for not doing so."
[6] Judgment No [2000] SASC 177
21 It is to be acknowledged that the magistrate failed to make any reference to the pleas of guilty. He should have done so.
22 Having regard to the serious nature of these crimes and to the appellant's record, it would have been open to the magistrate to have imposed a heavier sentence. I consider that the relatively moderate sentence imposed indicates that substantial credit was given for the pleas of guilty. It is important that the appellant should realise that he has received full credit for his pleas and that the sentences imposed upon him would almost certainly have been heavier had they not been made. Further, the tenor of the magistrate's remarks about the appellant's proposed change of life is in part, a reference to the appellant facing up to his crimes. His pleas of guilty were part of that process.
Intemperate Language
23 It was submitted that Mr Frederick used inappropriate language during the course of submissions and sentencing. It was the appellant’s case that this resulted in him failing to give proper weight to counsel’s submissions and focussing too heavily on the appellant’s criminal history. An affidavit of the appellant’s solicitor sworn 8 May 2000 provides as follows:
“Mr Frederick SM accused Mr Mills of ‘latching onto the social nipple’, and suggested that his wife does not care about her husband’s offending ways. His Honour bet Mr Mills ‘my next 2 years salary that your two children will be crims.’ He (sic) Honour appeared to become particularly angry towards Mr Mills during the course of his sentencing remarks”
24 It is important that magistrates communicate effectively with a wide range of people. The effectiveness of this communication is dependent upon their ability to be flexible and to adopt language which is most suited to the particular individual involved.
25 Dealing with numerous cases under pressure forms a normal part of a magistrate’s day. It is understandable that magistrates may feel frustrated with recidivist offenders but as judicial officers they must maintain their composure and refrain from using language which may be considered offensive by those appearing before them and their families.
26 The remarks of Moore J in Dang v Minister for Immigration & Multicultural Affairs[7] are apposite:
“A court must accord some real latitude to a decision maker concerning the way their reasons for decision are expressed. However that does not provide a licence for a decision maker to use extravagant, offensive or unnecessarily colourful language.”
[7] [1999] FCA 38
27 In Saunders v SA Police[8] Debelle J had occasion to consider the use of inappropriate language by a magistrate. His Honour said:
"There are, no doubt, occasions when plain or blunt speaking, even robust language is required. The appellant's poor record justified plain speaking on this occasion. However, there is an enormous gulf between plain speaking and robust language on the one hand and, on the other hand, language as crude and as crass as that used by the magistrate on this occasion, language which can only be construed as insulting. A defendant appearing in court is entitled to be treated with courtesy. The position is no different in the case of a defendant with a poor record. This defendant had pleaded guilty and had come to court to be punished. He was not there to be publicly insulted.
The dangers in using language of a kind used by the magistrate have already been adverted to in Walsh v Stevens (1992) 57 SASR 418 at 420. The use of such language may not appear to be consistent with impartiality and the administration of justice in an even-handed and temperature manner... A magistrate who uses such language does little service to the administration of justice in a fair and even-handed manner."
[8] Judgment No S5422 9 January 1996
28 In Walsh v Stevens[9] Perry J remarked at (420):
"I must say that I am concerned at the language used by the learned magistrate, ... One can imagine situations in which a robust use of the vernacular might be necessary in order to impress some sort of message upon an offender. However, the language in question goes beyond that and is inappropriate language for use by a judicial officer. Courts must maintain decorum and their use of language must be consistent with maintenance of the appearance of impartiality."
[9] (1991-92) 57 SASR 418
29 His Honour further addressed the issue of intemperate language in Coombs v R[10] in the following terms at (276):
"Be that as it may, some of the remarks made by the learned sentencing magistrate were unfortunate. The occasion for sentencing an offender should not be regarded by a magistrate as an opportunity to embark on a process of sounding off to the world at large about perceived evils in the community or other social issues. While it may be perfectly in order on occasions to give a defendant, in plan language, a dressing down, as it were, some sense of decorum must be preserved. Any such remarks should be couched in terms which maintain the dignity of the proceedings. Some of the remarks in question would have been best left unsaid, and it would have been better for the learned sentencing magistrate to have confined his observations to the case in hand and couched them in more appropriate language.
This is not the first time upon which I have come across instances where this magistrate has been responsible for intemperate outbursts of this kind. The stage has well and truly been reached where he must heed the concern expressed by this Court that he should continue to conduct proceedings before him in this fashion."
[10] (1996) 88 A Crim R 273
30 Mr Frederick’s language (in the present case) was colourful. ‘Latching onto the social nipple’ is an unconventional expression used to explain that the appellant had become dependent upon the social welfare system and was exploiting that system. Mr Frederick was clearly attempting to communicate with the defendant in a way that he believed would be understood. Viewed in this way, there can be no real substance to the claims advanced by the appellant in regard to this comment.
31 Mr Frederick’s comments about the children's future were unnecessary and bordered on the offensive. Betting one’s salary is inappropriate. However, again it seems Mr Frederick used language, albeit inapt, to try to encourage the appellant to critically reassess his offending. He sought to remind the appellant of his parental obligations of setting a good example and being a good role model for his children. I take the reference to the bet to be a means by which the magistrate emphasised his concern. He apparently thought that if the appellant did not change his criminal behaviour, there was a good chance that his children would copy that behaviour and end up in a similar position. Mr Frederick showed obvious concern for the appellant's children and it could not be said that his decision making process was prejudiced by such thinking.
32 The magistrate's suggestion that Mrs Mills did not care about her husband's offending was an unnecessary and gratuitous insult. The preparedness of an offender and his family to accept the decision of a magistrate may well be diminished by the use of inappropriate language.
33 There is no evidence which justifies a conclusion that Mr Frederick had a preconception about the appellant which coloured his thinking or inappropriately influenced his ultimate conclusions. However the language was superfluous and inappropriate. Such language should not have been used.
The Second Appeal
34 The appellant was sentenced by Mr Baldino SM on 14 March 2000 to a term of imprisonment of three months for the offence of illegal use and resist arrest. This is the subject of the second appeal.
35 On 19 August 1999 the appellant was a passenger in a motor vehicle which was being used illegally. He was going for a walk at about 5.30 am when a friend pulled alongside of him in the vehicle. He was offered a lift which he accepted. Once in the vehicle he realised that it was stolen. He did not leave the vehicle when opportunity arose. The police followed the vehicle. When it collided with another vehicle they sought to apprehend the appellant. He resisted being handcuffed by forcefully pulling his arms away.
36 In sentencing the appellant, Mr Baldino made the following remarks:
"Defendant, I take all those matters into account. [referring to submissions made].
It is a difficult task to try to contemplate what Mr Frederick would have done had these matters also been before him when he dealt with you on 16 November 99. The matters that Mr Frederick dealt with were matters which had occurred at about the same time as these offences, presently before the court, which occurred on 18 August 99. I am told that some offences dealt with by Mr Frederick had occurred prior 18 August 1999 and some after that date, but obviously before 16 November 99.
Whilst the totality principle is a matter which must always be borne in mind I am not one that readily supports a view that credit should be given to offenders, when sentencing for multiple offences, because the offences all occurred about the same time. These offences, as it happens, occurred on a different day from the rest of the offences and to me, calls for a separate penalty. It cannot simply be lost in the wash as it were, simply because other offences occurred around the same time. They are separate offences which occurred on a separate day from the others.
You may have been a mere passenger in a vehicle stolen by another person. You now plead guilty to that. That indicates to me that, at the time that you entered into that car and whilst using it, you knew that the car was stolen, otherwise you would not be entering a guilty plea. You may have been a victim of circumstances if one can use that term, but at that early hour of the morning when a mate pulls up alongside of you at 5.30 a.m., obviously by your plea today, you knew that the vehicle he was driving and offered you a lift in was a stolen car.
You have previous convictions for illegal use of motor vehicles. You have a bad record. You are a law breaker. You have been a law breaker since the age of 14. You have not desisted, you have committed offences on a regular basis. You have been dealt with by the Supreme Court, District Court and the Magistrates Court. You have been imprisoned previously. I can only say one thing that Mr Frederick must have taken a very compassionate view of the matters before him on 16 November last year when one looks at the overall matters which he dealt with and the prior record. Of course, one must not be punished for his past conduct for which he has been dealt with by the courts, but the past conduct is used by the courts as a guide when sentencing, as to what leniency should be given to an offender in respect to the matters which the court is currently dealing with.
You will be convicted of both these counts. I impost (sic) one sentence. You will be imprisoned for three calendar months. That term of imprisonment is to be served cumulatively on the total head sentence imposed by the court on the 16th day of November 1999.
In reviewing the non-parole period I now fix a new non-parole period of 17 calendar months that will be backdated to the 16th day of November 1999.
Defendant to pay court costs, the levy and prosecution costs totally $207. That amount is to be paid forthwith."
37 Section 86A(1) of the Criminal Law Consolidation Act 1935 (SA) provides:
"A person who, on a road or elsewhere, drives, uses or interferes with a motor vehicle without first obtaining the consent of the owner of the vehicle is guilty of an offence.
Penalty: for a first offence - imprisonment for 2 years. For a subsequent offence - imprisonment for not less than 3 months and not more than 4 years."
38 There is a difference between the appellant's assertion that he only became aware that the car was stolen once inside the vehicle and Mr Baldino's factual conclusion that he knew prior to entering the vehicle that it was stolen. No complaint was made of this difference on the hearing of the appeal.
The Totality Principle
39 It was submitted that Mr Baldino had misunderstood or misapplied the totality principle. It was said that he should have treated the offences as part of the same course of conduct for which he had been sentenced by Mr Frederick and that there should be in the circumstances no extension of the non parole period.
40 Mr Baldino had specific regard to the principle of totality. He considered the total criminality of the appellant, not only for the offences for which he was to be sentenced but also those for which he was currently serving a sentence. When imposing the sentence and reviewing and extending the non-parole period, he considered that the offences to be separate offences to those dealt with by Mr Frederick.
41 It is apparent that the offences occurred in the early hours of 19 August 1999 and not on 18 August 1999 as stated by Mr Baldino. The 19th was the day on which the police located the stolen tools at the appellant's home, the subject of the unlawful possession charge dealt with by Mr Frederick. Despite this inconsistency as to the dates, the magistrate correctly identified that the two offences were distinct and unrelated and that there should be a separate penalty for each. There was no suggestion that the illegal use and resist arrest offences were related to the unlawful possession or receiving offences.
42 It was open to Mr Baldino to order that the sentence be cumulative upon the sentence of imprisonment then being served. The appellant did not contend to the contrary.
43 No error in his approach has been identified. Mr Baldino was entitled to take the view that he did on the facts before him.
Obligation to Review and Extend the Non-Parole Period
44 The respondent submitted that as the appellant was subject to an existing non-parole period, s 32(1)(b) of the Sentencing Act applied and the magistrate was obliged to extend the non-parole period. Section 32(1)(b) provides as follows: -
"Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must -
(b).... if the person is subject to an existing non-parole period - review the non-parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court);”
45 This subsection directs the court to review and extend the non-parole period. Reference was made to Heal v Police[11] where Duggan J said at (479):
"After sentencing the appellant to the further periods of imprisonment and arriving at the sentence of imprisonment for 30 months the magistrate was required by s 32(1)(b) to:
......... '... review the non-parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court)'.
The court is required to extend the non-parole period under this provision. It is not permitted to allow the existing non-parole to remain as it is; nor is it permitted to reduce the period. As I have pointed out, the only provision permitting reduction is s 58(4)."
[11] (1999) 204 LSJS 477; see also SA Police v Holland (1994) 178 LSJS 310
46 Lander J said at (485):
"Having arrived at that point the Magistrate had to then proceed under s32 of the Act and, because the appellant was subject to an existing non-parole period, review the non-parole period and extend it by such period as he saw fit (s 32(1)(b)), subject to the limitation in that subsection."
47 As the appellant was subject to an existing non-parole period, the court was obliged to extend that non-parole period.
48 I reject the appellant’s submission that the magistrate erred in extending the non-parole period.
49 The decision to extend the non-parole period by two months was within Mr Baldino's discretion. No error has been identified in the exercise of this discretion.
Extension of Time - Obligation of Candour
50 The respondent accepted that the appellant had given instructions to his solicitor to appeal immediately following sentencing by Mr Frederick. He was advised to wait until the other charges were dealt with. He accepted this advice but confirmed that his instructions were to appeal. No notice of the appellant's intentions was given to the respondent.
51 The other charges came before Mr Baldino on 14 March 2000. He was not informed of the instructions to appeal or about the advice that had been provided. He proceeded to sentence the appellant on the basis that the sentence imposed by Mr Frederick was not challenged. The substance of the submission to Mr Baldino was that he should not extend the non-parole period as Mr Frederick had decided upon an appropriate regime of punishment and rehabilitation.
52 When making submissions to a court it is the obligation of a legal practitioner to provide accurate information and to ensure, as far as possible, that the court is not misled. As was said by the New South Wales Court of Appeal in Re Gruzman Ex Parte Prothonotary[12] at 323:
"Frankness should be one of the main attributes of a barrister. It is his duty not to keep back from the court any information which ought to be before it, and he must in no way mislead the court by stating facts which are untrue, or mislead the judge as to the true facts, or knowingly permit a client to attempt to deceive the court. How far a barrister may go on behalf of his client is a question too difficult to be capable of abstract definition, but when concrete cases arise one can see for oneself whether what he has done is fair or not."
[12] (1967-70) 70 SR (NSW) 316 - See also NSW Bar Association v Thomas (No 2) (1989) 18 NSWLR 193 per Kirby P at (204-5)
53 Candour required disclosure of the fact that the appellant had instructed his solicitor to appeal against the sentence imposed by Mr Frederick and the reasons for the delay in lodging the appeal. It is of the utmost importance that legal representatives attend fully to their obligations as officers of the court.
54 In these circumstances there was deliberate non-compliance with the rules of court[13]. No satisfactory explanation has been offered. The advice given put the rights of the appellant in jeopardy.
[13] Rule 96c.02 of the Supreme Court Rules
55 The respondent did not oppose an extension of time as the appellant had followed legal advice. This was an appropriate attitude to take in the circumstances. As this matter has not been fully explored, it is inappropriate to make any specific findings.
Conclusion
56 In my view, no error has been established. I propose to grant extensions of time for the lodging of the appeals.
57 Both appeals will be dismissed.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN THE JUDGMENT1 Postiglione v R (1996-1997) 189 CLR 295
2 (1988) 142 LSJS 451 at 453
3 (1997) 189 CLR 295 at 308
4 (1997-1998) 70 SASR 488
5 Judgment No [1999] SASC 217
6 Judgment No [2000] SASC 177
7 [1999] FCA 38
8 Judgment No S5422 9 January 1996
9 (1991-92) 57 SASR 418
10 (1996) 88 A Crim R 273
11 (1999) 204 LSJS 477; see also SA Police v Holland (1994) 178 LSJS 310
12(1967-70) 70 SR (NSW) 316 - See also NSW Bar Association v Thomas (No 2) (1989) 18 NSWLR 193 per Kirby P at (204-5)
13 Rule 96c.02 of the Supreme Court Rules