Deering, M.E. v The Queen

NOT FOR GENERAL DISTRIBUTION

IN THE ETDIZAL COURT

OF AUSTRALIA

1 1

AUSTRALIAN CAPITAL TLTRITORY

)	No. ACT G 2 of 1986

DISTRICT REGISTRY

)

GENERAL DIVISION

)

BETWEEN :

MICHAEL EDWARD DEERING

Applicant

AND :

THE OULXN

Respondent

MINUTE OF ORDER

JITUGE MAKING ORDER	: Neavcs J.
DATE OF ORDER	: 27 June 1986
WHERE WD	: Canbcrra
THE CO7JRT ORDERS THAT:

The application

for

leave to filc and serve a

notice of appeal against the convictions recorded

against Michael Edward Deering

hy thc Supreme Court

of thc Australian Capital Terrjt-ory

on 17 September

1985

and against the severity

of the sentences

imposed

consequcnt

upon

those

convictions

dismissed.

--	Note: SeLtlcment and cntry	o€ orders is dealt with in Order	36
of thc Federal Court Rules.

---

IN THE FEIIERAL COURT OF AUSTRALIA

)

AUSTRALIAN CAPIla-TERRITORY

)

)	No. ACT G 2 of 1986

DISTRICT REGISTRY

) 1

GENERAL DIVISIQii

)

BETWF,EN:

MICHAEL EDWARD DEERING

Applicant

AND:

THE OUEEN

Respondent

CORAM: Neaves J.

DATA:

27 June 1986

REASONS FOR JUDGMENT

This

application

made

pursuant

Order

52,

suh-rule

1 5 ( 2 ) of

thc Federal Court Rules. Michael Edward

fleering

("the applicant") seeks

leave to flle and serve a

notice of appeal against the convictions

for five offences

under 5.112 of

the Crimes Act,

1900 of the Statc of New South

Wales in its application

to the Australian Capital Tcrritory

breaking, entering and stealing recorded against him by the

Supreme

Court of the

Australian

Capital

Territory

September

1985

and against the severity

the sentences

imposed by the Court consequent upon those convictions. Order

52, sub-rule 15(1) prescribes thc time within which a notice of

appeal is to be filcd and served. In the present case that

time cxpircd

21 days after the date whcn the convictions were

recorded

and

the

sentences

pronounced.

Order

52, sub-rule

15(2) provides:

"(2) Notwithstanding anything in the preceding sub-rule, thc Court or a Judge for special reasons may at any time give leave to file and serve a

notice of appeal."

On 21 August,

1985 the applicant was arraigned before a

judge of the Supreme Court of the Australian Capital Territory

(Kelly J.)

and

a jury upon an indictment containing nine

counts,

five

alleging

offences

of breaking,

entering

and

sLealing

and

four

alleging

offences

of recciving

stolen

property knowing the same to have been stolen. Those four

counts were alternative to

four of the counts of breaking,

entering and stealing.

To each count in the indictment the

applicant pleaded not guilty.

The Crown applied to amend

the particulars of the

goods said

to have been stolen or received

set out in

number

of the counts of the indictment. This application,

whlch was consented to by counsel for the applicant, was

granted and the applicant arraigned on the amended counts. To

cnch of thcse he pleaded not guilty.

The application to amend the particulars arose in this

way.

The Crown's

case was that the applicant had broken and

entered the followmg premises -

3 .

(a) The shop of NCA Marine Pty. Ltd.,

Xembla Street, Fyshwick between	12 and
15 July 1982;

(b)	The shop of Robert George Maidment and William Cape being Shops 5 and 6 Hawker Shopping Centre, Hawker between 3 and 6 November 1982;

and 17 December 1982;

(d) The

shop of Peter Evans and Beverley

Evans being Shop

5 Ainsworth Street,

Mawson between

20 and 21 April 1983; and

(e)

The shop

of Electricland Pty. Ltd.,

Townscnd Street, Phillip on or about	3
August 1983,

and had on each occasion stolen various goods. Those goods

included

prc-recorded

video

cassettes

and

video

recording

machines. The applicant was apprehended at Bateman's Bay by	!
members of the Ncw South Wales police and was found to have in

his possession 14 pre-recorded video cassettes and

3 video

recording machines. In respect;

the possession of those

goods a charge was laid in New South Wales against the

applicant under s.189A

of the Crimes Act, 1900 (N.S.W.).

The

charge alleged possession of goods stolen outside the State

knowing the same to have been stolen.

that charge

pleaded

guilty

and

30 August 1983 was

sentenced

imprisonment for two years with hard labour.

non-parole

period

9 months

was

fixed.

The

amendments

the

partlculars set out in the indictment upon which the accused was arralgned before the Supremc Court of the Australian Capital Tcrritory werc designed to remove any reference, or any

i '

specific reference, in the relevant counts to the goods which

had been the subject

of the criminal charge in

New South Wales.

During the course of discussing the amendments to the

particulars

the

trial

judge

raised

with

counsel

for

the

applicant whether the applicant proposed to enter

plea of

I ,

autrefois

convict

based

upon

the

circumstances

which

reference has been made. Counsel for the applicant stated that

the applicant did not raise that plea.

The trial proceeded and on 23 August 1985 the jury

found the applicant guilty on the five counts

of breaking,

entering

and

stealing.

verdict

appears

have

been

returned

the

alternative

counts

receiving.

September 1905 the

trial

judge

imposed

sentences

imprisonment 111

respect of each of the offences of which the

applicant

had

becn

found

guilty.

Relating

the

sentences

imposed to the offences identified in paragraphs

(a) to (e)

above, they were rcspectivcly

6 years, 4 years, 4 years, 5

yearn and

4 years. The sentences were directed

be served

concurrently and to date from 23 August 1985. The applicant

was thus effectively sentenced to imprisonment for a term of

years.	The period within which the applicant was not to	be	l
. .

eligible

for

parole

was

fixed

3 years 6 months.

sentencing the applicant the trial judge took into account,	at	i
...

the applicant's request, seven other offences

of dishonesty

committed between 30 November 1982 and

4 August 1983.

5. I

In explanation of the failure of the applicant to

institute an appeal within the time prescribed and

of the delay

of some four months in flling the application under Order 52,

sub-rule 15(2), reliance was placed on facts deposed to on

information and belief by John Dominic Burns, Solicitor, in

affidavits sworn respectively

on 29 January 1986 and 4 February

1986. According to those affidavits and certain annexures to

them,

being

letters

written

the

applicant

and

dated

respectively 5 Novcmber 1985 and 19 January 1986, the applicant

was advised by

his

counsel on 17

September 1985 that he had

little reason to lodge an appeal on sentence and no reason to

lodge an appeal against the convictions recorded against him.

Notwithstanding this advice, the applicant is said to have

completed on

2 Octobcr 1985

what is variously rcferred to as

"an application

to appeal", "an application for leave

appeal" and an

"application of notice

appeal".

The

completed

document

said

remain

the

applicant's

personal file at Goulburn Gaol, the applicant being informed,

so It is said,

that an appeal could not be lodged except by his

legal representative. The document referred to, whatever be

its form, is not before the Court.

By the lettcr dated

5 November

1985 the applicant

requested Messrs Gallens, Solicitors,

to examine the papers in

order to ascertain whether there were any grounds which would

justify an appeal.

Thereafter,

the

solicitors

obtained

6 .

transcript of the proceedings and sought legal aid for the

applicant whlch was granted. Subsequently, advice

of counsel

i -

was

sought

the

prospects

success

of an appeal

following which the application at present before the Court was

. I

filed on 15 January 1986.

If all that were necessary to sustain the present

application were the giving of a satisfactory explanation for the failure of the applicant to institute an appeal within the prescribed time and for the delay in making the application

under Order 52, sub-rule 15(2), I would regard the applicant as

having satisfied that requirement. However, the applicant must

establish that there are "special reasons" why leave to file

and serve a notice

of appeal out of time should be given. This

aspect requires a consideration of the proposed grounds of

appeal.

The principal ground of appeal on which

the applicant

would seek to rely in the event of the present application

being successful is that certain of the counts upon which the

applicant was found guilty, that

is to say counts alleging

offences of

breaking, entering and stealing, should have been

taken from the jury on

a plea

of autrefois convict and this

notwithstanding that that plca was not entered at the trial.

i '

The

conviction

upon

which

was

submitted

the

applicant could have relied

as founding a plea

of autrefois

convict is the conviction in New South Wales on

30 August 1983

for the offence under s.189A of the Crimes Act,

1900	( N . S . W . ) .

The elements of that offence were that the applicant, without lawful excuse and knowing the same to have been stolen, had in

his possession in

New South Wales certain goods, namely

pre-recorded vidco cassettes and	3 video recording machines,
stolen outside the State.

In support of the submission that that conviction was

a bar

to the conviction

of the applicant for certain of the

offences of

breaking, entering and stealing, counsel referred

to the

following passage in the judgment of Wells

v. O'Louqhlin; Ex parte Ralphs (1971) 1 S.A.S.R. 219 at

pp.266-7:

"For the

plea to be upheld it must clearly appear

from the formal legal ingredients of

the

two

offences and the structure of the factual issues

related to those ingredients, that the prosecution

is seekmg two

penal

sanctions

for, and

with

respect to,

almost identical conduct forming part

of the one incident or

transaction (whether brief

or prolonged)."	,
!

I	I am unable to see any basis upon which it could be

contended with any reasonable prospect

success that the

present casc falls within the principle

so stated. The formal

legal ingredients of the offence of breaking, entering and

stealing differ markedly from those of the offence of

which the

applicant was convicted in New South

Wales.

So far as the

evidence necessary to establish the two offences is concerned,

the only relevant connection is that the charges arose out of

what may, speaking generally, be referred to as the same set of

circumstances namely the theft of the goods in the Australian

Capital Territory and the possession of those goods in New

South Wales. That connection is clearly not enough to found

plea of autrefois convict. In the end,

think, counsel for

the applicant conceded that the conviction under s.189A of the breaking, entering and stealing.

Other grounds

appeal upon which the applicant

would rely are

(a) that certain evidence should not have

been

admitted,

being

evidence

admissions made by the applicant upon

his apprehension in New South Wales to

officers of police of that State; and

(b)	that the Crown should not have been allowed to reopen its case.

The first of the suggested grounds appears to relate

I .

to evidence given by Sergeant Christopher

John Ingram of the

, .

New South Wales police.

He gave evidence of having searched,

pursuant to a warrant, certain premises at Batehaven, New South

Wales on 11 August 1983 and of having there taken possession of

certain

goods.

also

gave

vidence

having

taken

possession of

certain other articles from a green Mazda sedan

motor

car

with

ACT registration

plates.

Subsequently,

Detective Bellis, in the presence of Sgt. Ingram, interviewed

the applicant and Sgt. Ingram gave evidence of what was said

that interview.

No objection to the admissibility

of the evidence was

taken at the trial but it is submitted that it should not have

been received as it related principally to goods which,

as the

result of the amendments to the indictment to which reference

has been made, were not specifically referred to in the

relevant counts of the indictment.

The second

of the two suggested grounds referred to

above relates to the recalling of Detective Senior Constable

Cootes

after

the

case

for

the

defence

circumstances which are sufficiently indicated in the following

statement which his Honour addressed to thc jury:

“Ladies

and

gentlemen

of the jury,

an unusual

circumstance has arisen	in this case. It arises
from the fact that the	evidence which was led in

respect

the

breaking

and

entering

the

premises of Electricland Proprietary Ltd showed

that break and enter to have occurred on 3 August 1982. I only noticed It last night when I was going through the material, and the indictment says

10.

3 August 1983.

I have inquired of counsel what the

situatlon is and in the circumstances

I propose to

allow a most unusual course and that is the Crown

to re-open its case to give evidence concerning the

actual date,

so that there is evidence upon which

you can act in the case concerning the date of the

breaking in at that time."

In my

opinion there is no substance in either of the

suggested grounds of appeal. They

do not provide any warrant

for acceding to the present application.

In relation to the severity of the sentences imposed,

the applicant wishes to contend that the trial judge erred in

the exercise of his discretion in giving

no, or no sufficient,

weight

to the

fact that the applicant had served

term of

imprisonmcnt in

New

South Wales in relation to the offence

under s.189A

of the Crimes Act, 1900 ( N . S . W . )

of which he was

convicted.

further suggested ground of appeal is that his

Honour gave insufficient weight to subjective factors in favour of the applicant.

A	perusal of the lengthy and very detailed reasons

which his Honour gave when sentencing the applicant	- reasons
which are not reproduced in full in the transcript of the

proceedings of

17 September

1985 but are recorded separately

and to which counsel for the applicant

had apparently not had

access when the present application was heard

- demonstrates

11.

that his Honour gave careful consideration to the subjective

factors urged upon him on behalf of the applicant. His Honour

also expressly said that he had taken into account "that

he has

received some punishment in respect of the theft of some

of the

goods", and this can, I think, only be read

as a reference to

the term of imprisonment served by the applicant in respect of

the offence against s.189B of the Crimes Act, 1900 (N.S.W.) to

which referencc was made earlier in his Honour's reasons.

The principles on which this Court will interfere

with

I .

the exercise

of a sentencing judge's discretion have been

examined and enunciated

on many occasions: see,

for example,

i i

Kovac v. L (1977) 15 A . L . R . 637;

Tait & Bartlev (1979)

21 A.L.R.

473

p.476;

and

(1979) 28 A.L.R. 107 at

pp.113,

120. The

Court will not interfere with

the sentence

imposed merely because

it is of the view that that sentence is

insufficient or excessive.

It will interfere only if it be

shown that the sentencing judge

was in error in acting on

wrong principle or in misunderstanding or in wronqly assessing

some salient feature of the evidence. With those principles in

mind and having regard to the applicant's extensive criminal

record and the other matters to which the trial judge adverted

in passing sentcnce, no substantial ground

has been shown to

support a contention that the sentencing discretion miscarried.

In my opinion, the applicant has failed

to demonstrate

that

here

are

"special

reasons"

justifying

the

Court

exercising in his favour the discretion which is conferred upon

it by Order 52, sub-rule 15(2) of the Federal Court Rules.	The
application is, therefore, dismissed.

certify that this and

! '

the preceding 11 pages are

a true copy of the Reasons

for Judgment herein

of the

Honourable Mr Justice

Dated: 27 June

1986

I-

[1986] FCA 264

27 Jun 1986