LEE v POLICE No. SCGRG-99-1198 Judgment No. S477

[1999] SASC 477

LEE  v  POLICE
[1999] SASC 477

Magistrates Appeal

1. DUGGAN J. The appellant appeared before the Elizabeth Magistrates Court charged with selling indecent material contrary to s 33(2)(b) of the Summary Offences Act, 1953.  He pleaded guilty to the charge and the learned magistrate imposed a fine of $1,500.  The indecent material was forfeited to the Crown.  The appellant has now filed a notice of appeal against the sentence.

2. The sentence was imposed on 11 February 1999 and the notice of appeal was filed on 27 September 1999.  As the notice of appeal was filed well out of time it is necessary for the appellant to obtain an extension of time before proceeding to the appeal.

3. The appellant has explained the reasons for the delay in an affidavit which has been filed.  He said that he was unrepresented at the hearing before the magistrate.  He said he was unaware of any right to appeal against the fine which was imposed until he spoke to an acquaintance who had been charged with a similar offence.  The conversation took place some days before the time for appeal was due to run out.  He said he decided to appeal after speaking to the acquaintance who was convicted of a similar offence and fined the same amount.  The acquaintance eventually decided not to appeal and the appellant took the view that there would be no merits in an appeal.  He decided, therefore, not to take the matter any further at that stage.  He said he also believed that, because the time for filing the notice had expired, he was not able to proceed with the matter.

4. According to the appellant’s affidavit his employee was also charged with an offence arising out of the same incident as the one in which the appellant was involved and on 19 April 1999 the appellant spoke to a solicitor on behalf of the employee.  It was then that he received some further advice about his own matter, including the fact that, in the view of the solicitor, the fine appeared excessive.  On the appellant’s instructions, the solicitor made some enquiries relating to a proposed appeal, but it was not until 16 September 1999 that the appeal was instituted and an application made for an extension of time within which to appeal.

5. When a notice of appeal is not filed within the required time, the right to appeal is lost.  It can be reinstated only if the court grants an extension of time within which to file the notice.  In cases such as the present where the delay in filing a notice of appeal is substantial, the court will not grant an extension unless there are exceptional circumstances to explain the delay or a miscarriage of justice will occur if the appeal is not entertained.  (R v Brown [1963] SASR 190 at 191; R v Foster (1996) 187 LSJS 135 at 139 and Gavin v The Queen (1992) 6 WAR 195 at 198, 201).

6. In the present case the explanation for the delay falls well short of amounting to exceptional circumstances which would justify an extension of the time within which to appeal.  The appellant made a decision not to appeal and then changed his mind after receiving legal advice.  There was then a long period of delay before the notice was lodged.

7. Nevertheless, it is necessary to look at the offence and the sentence in order to determine whether a miscarriage of justice would stand uncorrected if leave to appeal were not granted.

8. As I have pointed out, the range of penalties for the offence committed by the appellant includes a fine and imprisonment.  The penalty imposed in this case was one-tenth of the maximum fine.

9. Regard must be had to the fact that the appellant had no previous convictions and he suffered financial loss by reason of the forfeiture.  However an important aggravating feature of this offence is that the appellant was engaged in a commercial enterprise which included the offering of this material for sale and he decided to break the law in this respect well knowing that he was doing so.  In these circumstances specific and general deterrence are particularly relevant factors in the sentencing process.

10. I have had regard to the submission of Mr Griffin concerning the broad range of conduct which must be accommodated within the range of penalties prescribed for this offence.  However some of the instances to which he referred might well be regarded as serious enough to merit a sentence of imprisonment.  In the circumstances, I do not think that this fine could be said to be manifestly excessive.

11. The application for an extension of time within which to institute an appeal is refused.