Modra v Police - [2006] SASC 52

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MODRA v POLICE
Judgment of The Honourable Justice Besanko
24 February 2006
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Application for extension of time to appeal against sentence imposed by magistrate on 1 March 1994 and appeal against sentence – principles governing application for extension of time – appeal out of time by more than 11 years and 7 months – explanation for delay not satisfactory – no risk of miscarriage of justice if extension of time not granted – even if application granted, appeal would be dismissed on merits – application dismissed.
Supreme Court Rules 1987 r 96C.02; Criminal Law Consolidation Act 1935 ss 170 (repealed), 310 (repealed); Criminal Law (Sentencing) Act 1988 s 18A; Statutes Amendment (Truth in Sentencing) Act 1994 (generally); Offenders Probation Act 1931 (repealed), referred to.
R v Modra (Unreported, Supreme Court of South Australia, 16 May 1990, judgment no S2274); Jackamarra v Krakouer (1998) 195 CLR 516; Gikas v Police (1999) 202 LSJS 301; R v Spiero (1979) 22 SASR 543; Power v French (1973) 6 SASR 100; House v The King (1936) 55 CLR 499, considered.

MODRA v POLICE
[2006] SASC 52
Magistrates Appeal

BESANKO J: This is an application for an extension of time within which to appeal from a sentence imposed by a magistrate on 1 March 1994, and an appeal against the sentence should the extension of time be granted. I heard the application for an extension of time and submissions on the appeal together.
The appeal was instituted on or about 25 October 2005 and it is out of time by a very substantial period. The time limit prescribed by the rules of court is 14 days (Supreme Court Rules 1987, r 96C.02) and the purported appeal is out of time by a period in excess of 11 years and 7 months.
The facts
On 11 November 1993, the applicant was charged on an information with five counts of breaking and entering a building and committing an offence to which the now repealed s 170 of the Criminal Law Consolidation Act 1935 (“CLCA”) applied, namely, theft, and one count of breaking and entering a building intending to commit an offence to which the said section applied, namely, theft. The six offences were alleged to have been committed on various dates in 1987. Each involved a dwelling and may be described as a housebreaking offence.
On 18 January 1994, the applicant pleaded guilty to the six counts in the information and he asked the magistrate in sentencing him to take into account 19 other offences of breaking and entering, which, at that point, were not the subject of charges, and which were committed over what the magistrate described as “quite a substantial period”. Sixteen of the 19 offences were committed on various dates in 1987 and 1988, and the other three offences were committed on various dates between 1982 and 1984. Most of the offences involved a dwelling and may also be described as housebreaking offences.
Under the repealed s 170 of the CLCA, the offence of breaking and entering a building and committing an offence to which the section applied carried a maximum penalty of imprisonment for a term not exceeding 8 years, and the offence of breaking and entering a building intending to commit an offence to which the section applied carried a maximum penalty of imprisonment for a term not exceeding 7 years.
On 1 March 1994, the magistrate recorded convictions and, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, he imposed one penalty of 6 years, to be served cumulatively on an existing sentence that the applicant was serving of 16 years, 8 months and 15 days. The magistrate extended the existing non-parole period by a period of 18 months.
In sentencing the applicant, the magistrate said that he took into account the matters in the pre-sentence report that had been put before him, the circumstances in which the offences were committed, and the fact that the applicant had been in custody since 1988 and was due to be released on parole in July 1998. The magistrate also said that he took into account the fact that the applicant cooperated with the police, and that it was the applicant’s voluntary confession that “enabled” the charges to be brought before the court. The magistrate said, however, that the offences were extensive and serious and the penalty must reflect that fact and the need for deterrence. The magistrate took into account what he described as the applicant’s “extensive past history list of similar type of offending”.
The applicant was represented before the magistrate by Mr Stephen Charles Ey, a legal practitioner.
It is the sentence imposed by the magistrate on 1 March 1994 which is the subject of the proposed appeal.
In order to consider the application for an extension of time, and the submissions made on the appeal, it is necessary to examine a number of events that occurred before 1 March 1994. The events in the period up to March 1988 are expressed in rather general terms because that is how they are described in the pre-sentence report.
The applicant was born on 25 July 1959. At the age of 11 years, he was charged with what is described as “church breaking” with some other young boys and was placed on a 3-year bond. In 1977, the applicant appeared before the Juvenile Court over several serious charges of arson and he was placed in care as a result and spent approximately 18 months in custody. In 1978 or 1979, the applicant committed some breaking offences, and in July 1979 he received a suspended sentence bond, which included probation, supervision and no-alcohol conditions. In about 1984, the applicant was sentenced to 5 years’ imprisonment for arson and dishonesty offences. The author of the pre-sentence report states that the applicant served his sentence without major difficulty and was released on parole in 1986.
On 30 March 1988, the applicant was taken into custody. He was charged with two counts of rape upon a woman committed on 29 November 1987, one count of rape on a woman committed on 19 March 1988, and 11 counts of breaking and entering offences (which may also be described as housebreaking offences) committed in 1987 and 1988. The applicant was on parole at the time these offences were committed, and the unexpired portion of the sentence in respect of which he was on parole was 21 months and 15 days. I will refer to this as the “unexpired sentence”. The applicant was sentenced by a judge of this Court on 19 December 1989. However, it seems that there was an error in the sentencing process, and the applicant was re-sentenced by the same judge on 2 March 1990. The judge sentenced the applicant to 8 years’ imprisonment with respect to each rape committed on 29 November 1987, such sentences to run concurrently. The judge sentenced the applicant to 7 years’ imprisonment for the rape committed on 19 March 1988, such sentence to commence at the conclusion of the sentence of 8 years previously referred to. The judge sentenced the applicant to 3 years and 3 months’ imprisonment for each of the housebreaking offences, such sentences to run concurrently, but to commence at the conclusion of the sentence of 7 years’ imprisonment for the rape committed on 19 March 1988. The total sentence imposed by the judge was therefore 18 years and 3 months, such sentence to commence at the expiration of the unexpired sentence of 21 months and 15 days. The judge could not order that the sentence commence when the applicant was taken into custody so he took the time the applicant had spent in custody into account when determining the appropriate sentence.
The applicant appealed to the Court of Criminal Appeal: R v Modra, unreported, 16 May 1990, judgment no S2274. The appeal was successful. The sentence imposed by the judge of 18 years and 3 months was reduced to 15 years. That was achieved by making the sentence of 3 years and 3 months for the housebreaking offences concurrent with the two concurrent sentences of 8 years’ imprisonment for the rapes committed on 29 November 1987. The 15 years was to commence at the expiration of the unexpired sentence, thereby resulting in a total period of imprisonment of 16 years, 9 months and 15 days. The Court of Criminal Appeal fixed a non-parole period of 12 years, commencing on 19 December 1989. There were two grounds upon which the Court of Criminal Appeal considered it appropriate to intervene. The applicant had spent 21 months in custody before being sentenced by the judge. The judge deducted 21 months from the sentence which he would otherwise have passed for the housebreaking offences and made what he considered to be a corresponding adjustment to the non-parole period. However, the judge overlooked the fact that the time spent in custody would not be subject to good conduct remissions. The other ground was that, although the Court considered that moderate sentences had been imposed with respect to each of the offences, the total sentence was so crushing that the intervention of the Court was required, having regard to the principle of totality.
On 15 October 1992, the applicant committed offences of escape custody, larceny and drive or use a motor vehicle without consent. On 22 April 1993, a judge of the District Court sentenced the applicant to a term of imprisonment of 20 months for those offences, such sentence to be served cumulatively upon the sentence the applicant was, at that time, serving. That meant that the total period of imprisonment was increased to 18 years, 5 months and 15 days. The judge extended the non-parole period by 15 months, making a non-parole period of 13 years and 3 months, commencing on 19 December 1989.
Although he appears to have overlooked at least the head sentence imposed by the judge of the District Court on 22 April 1993, the effect of the magistrate’s sentence on 1 March 1994 was to increase the sentence to 24 years, 5 months and 15 days and the non-parole period to 14 years and 9 months, commencing on 19 December 1989.
Under the Statutes Amendment (Truth in Sentencing) Act 1994, which came into operation on 1 August 1994, the applicant’s head sentence was adjusted to 19 years, 3 months and 25 days and his non-parole period to 9 years, 7 months and 12 days.
The applicant’s non-parole period expired on 30 July 1999. The applicant’s total head sentence will expire on 12 April 2009.
On 6 January 2000, the applicant applied for parole. His application was deferred. The applicant subsequently withdrew the application. On 25 November 2002, the applicant again applied for parole.
On 19 December 2003, the applicant instituted a second appeal against the sentence imposed on 19 December 1989 and he sought a review of the calculation of his entitlement to remissions. On 9 February 2004, the applicant filed a notice of abandonment in relation to his second appeal. Subsequently, the applicant applied to the Full Court for leave to withdraw the notice of abandonment.
On 14 April 2004, the applicant’s application for parole was refused.
On 16 April 2004, the applicant abandoned his application for leave to withdraw the notice of abandonment. On 23 October 2004, the applicant filed a third notice of appeal in relation to the sentence imposed on 19 December 1989. He again sought a review of the calculation of his entitlement to remissions in addition to seeking a five-month reduction in his sentence. On 24 January 2005, leave to appeal on the third notice of appeal was refused.
On 18 July 2005, the applicant’s most recent application for parole was refused.
On 25 October 2005, the applicant instituted the present appeal.
The application for an extension of time
I received a number of affidavits on the hearing of the application. The applicant tendered an affidavit of himself, sworn on 25 January 2006, and an affidavit of Mr Ey, also sworn on 25 January 2006.
The respondent tendered three affidavits. The first is an affidavit of Ms Pamela Rogers, sworn on 21 November 2005. Ms Rogers is a police officer, and she appeared as the police prosecutor before the magistrate on 1 March 1994. The second is an affidavit of Ms Glenys Madigan, sworn on 12 December 2005. Ms Madigan is the Acting Senior Administrator of the Parole Board of South Australia. The third is an affidavit of Mr Allan McDonald, sworn on 14 December 2005. Mr McDonald is a police officer.
I will briefly summarise the affidavit evidence and then set out the findings that I make.
I start with the affidavit of the applicant. The applicant states that he was represented by Mr Stephen MacFarlane in relation to the matters before this Court in 1988 and 1990 and by Mr Greg Mead in relation to the matters before the District Court in 1993. He has no recollection of being represented in the Magistrates Court in 1994, or of Mr Ey appearing on his behalf. The applicant states that he did not understand that there were time limits in relation to the institution of an appeal against a sentence until he was advised as much by his current lawyers. He states that he believed until then that if a sentence was to be appealed, the lawyers acting for him at the time of the sentence being imposed would decide whether or not an appeal should be lodged. The applicant states that he can remember Mr MacFarlane advising him to institute an appeal, and he can recall Mr Mead advising him not to appeal. He states that he is certain he did not receive any advice in relation to appealing against the sentence imposed in 1994. He states that had he known that there might be reasonable prospects of succeeding on an appeal and that an appeal had to be instituted within 14 days of the sentence being imposed, he would have instructed a lawyer to appeal. The applicant states that after he received the above sentences, he believed that he would be eligible for automatic parole upon the expiration of his non-parole period. He continued to hold that belief until he was advised to the contrary some time in 2000. The applicant states that because of that belief, he did not obtain legal advice after he was sentenced in 1994 as to whether there was any possibility of appealing against that sentence. The applicant refers to various enquiries he has made of the Department of Correctional Services from about 2003 about the calculation of remissions in relation to his sentence, and to conflicting advice he has received from the Department. The applicant does seem to have received some contradictory advice, but it is not necessary for me to set out the details.
In his affidavit, Mr Ey states that his file in relation to the 1994 matters involving the applicant has been destroyed. He states that he is unable to recall anything about the matters “including details of the charges, any instructions I received from the applicant, the submissions I made to the Magistrates Court in mitigation of penalty or any advice I gave to him about the sentence imposed by the judge or his appeal rights”.
The affidavit of Ms Rogers outlines the course of the proceedings before the magistrate in 1994.
The affidavit of Ms Madigan outlines how the Parole Board dealt with the applicant’s various applications for parole, and provides details as to the various sentences imposed.
The affidavit of Mr McDonald proves the applicant’s offender history report as at 29 November 2005.
The principles which govern an application for an extension of time have been discussed in a number of cases. It is sufficient to refer to Jackamarra v Krakouer (1998) 195 CLR 516; Gikas v Police (1999) 202 LSJS 301. In Gikasv Police (supra) Lander J said (at 306):
In summary, any application for an extension of time within which to appeal must be supported by an explanation for the failure to comply with the time limits prescribed by the statute or any Rules of Court regulating the time limit. When the delay is very short and there is no obvious prejudice to any party the explanation need not be in great detail. Where the delay is lengthy or prejudice may be suffered by some other party then there is an obligation on the party seeking the extension of time to give a detailed explanation for the party’s failure to comply with the prescribed time limit.
When a party is not able to proffer a satisfactory explanation for failing to observe a time limit, or where another party might suffer prejudice by reason of the delay, an extension of time will only be granted if the party seeking the extension of time can point to the real possibility that a miscarriage of justice might occur by the failure to extend time.
In this case, it is not easy to understand the applicant’s explanation for the delay. He would have been aware that an appeal might be brought from the decision of the magistrate, because he had on a previous occasion successfully brought an appeal from the sentence imposed by a judge of this Court in 1990 and he had been advised not to appeal from the decision of the judge of the District Court in 1993. I find it difficult to accept that anyone would think there was an unlimited time within which to appeal and indeed no one would wish to leave the exercise of such a right for any length of time. I find it difficult to accept that the applicant did not ask about the prospects of an appeal from the sentence imposed by the magistrate if he was unhappy about the sentence, or that Mr Ey, as an experienced practitioner in criminal law, did not provide some advice about the prospects of appeal. It is possible that advice was given as to the likely range before sentencing and the sentence imposed was within the range.
Even if I accept that the applicant did not receive any advice as to the prospects of an appeal, the thrust of his evidence was, I think, that he did not ask for any such advice because he was focused on the extension of the non-parole period of 18 months, which seems to have been moderate. It is hard to believe that the applicant could think that he had an automatic right to parole at the expiration of the non-parole period, as distinct perhaps from being very confident that he would be released on parole. In any event, even if I accept that the applicant had this belief, he had been disabused of it by 2000. Thereafter, he has explored a number of avenues for securing his release from custody. Ultimately, advice about a challenge to the sentence imposed by the magistrate on 1 March 1994 was one of those avenues.
The delay in this case was not caused by an untoward vicissitude of life, or by the fault of a third party. In those circumstances, I do not think the explanation for the delay can be described as satisfactory. Furthermore, the delay is very substantial. Although there will be no direct prejudice to the respondent if an extension of time is granted, there is an important public interest in the finality of litigation. On the other hand, there is an obvious prejudice to the applicant if he is prevented from challenging the head sentence imposed by the magistrate of 6 years’ imprisonment.
An applicant for an extension of time within which to appeal is not entitled to have the application and the appeal heard together. In a particular case that may be a convenient course, as indeed it was in this case. Even if they are not heard together, some examination of the merits of the appeal will often be necessary for the purposes of determining the application for an extension of time. In this case, I did hear full submissions on the merits of the appeal, because it was convenient to do so.

For the reasons I will give, I have reached the conclusion that even if the appeal had been instituted within time, it must be dismissed on the merits. The application for an extension of time within which to appeal should be dismissed because, there being no satisfactory explanation for the delay, I am not satisfied that there is a risk of a substantial miscarriage of justice if the time for appeal is not extended.
The appeal
In essence, the magistrate’s decision was challenged on two grounds.
First, it was submitted by the applicant that the magistrate had erred because he had not placed proper weight on the sentence imposed in 1990. There were two aspects to this submission. The first was that the sentence imposed by the Court of Criminal Appeal in 1990 effectively punished the applicant for housebreaking offences committed in 1987 and 1988, and the separate and additional sentence imposed by the magistrate in 1994 for further and additional housebreaking offences committed in 1987 and 1988 was, in a sense, punishing the applicant twice for the same conduct. In support of this submission, counsel referred to the decision of this Court in R v Spiero (1979) 22 SASR 543. The second aspect of the submission was closely related to the first and it was that the magistrate should have, in effect, “deferred” to the Court of Criminal Appeal and the sentencing package it formulated for the offending in 1987 and 1988, which included similar offending to that before the magistrate. In support of this submission, counsel referred to the decision of this Court in Power v French (1973) 6 SASR 100.
Secondly, it was submitted by the applicant that the magistrate imposed the sentence of 6 years and increased the non-parole period by 18 months on the basis that the existing sentence was a term of imprisonment of 16 years, 8 months and 15 days and that the existing non-parole period was 12 years. In other words, he overlooked the sentence imposed by the District Court judge on 22 April 1993.
In relation to the first submission, the applicant referred to the following passage in the reasons of King CJ (with whom White J agreed) in R v Spiero (supra) (at 546):
Where offences are connected, the court in imposing a sentence for one offence is entitled to take into account that it is in reality sentencing for more than one offence. This is also obviously the position where an offender asks the court to take into account offences other than those charged. It is important, of course, in all these circumstances that the court should make clear what it is taking into account in order to avoid any risk of a person being subsequently convicted and punished for the same conduct.
That case was dealing with a problem which arose in the context of the then s 310 of the CLCA, which provided for a limitation on the number of cumulative sentences which could be imposed. It is not directly relevant to the circumstances of this case. Nevertheless, it is no doubt the case that the sentencing court should make clear what, if any, uncharged offences it is taking into account in sentencing the defendant so as to avoid any risk of a person being subsequently convicted and punished for the same conduct.
In the course of his sentencing remarks on 19 December 1989, the judge of this Court said:
As far as the breaking and entering offences are concerned, it’s apparent that they constituted a course of conduct, not offences committed randomly and, in that case, it appears that although they are separate offences, that in the overall package of sentencing which I must put together for the purposes of sentencing you for these many offences, I have no alternative but to treat them concurrently as far as the sentences are concerned, although I recognise that really they are not concurrent offences, due to the wide separation in time over which they were committed. I, therefore, propose to pass one sentence on each of the housebreaking and larceny offences, even though the amount of property is widely different in each case.
The judge’s correction to the sentence on 2 March 1990 does not impact on these remarks.
The judge of this Court who imposed sentence on 2 March 1990 and the Court of Criminal Appeal were not aware of the six housebreaking offences for which the applicant was later sentenced by the magistrate, or the 19 housebreaking offences the magistrate was asked to take into consideration. He was not sentenced by the judge or the Court of Criminal Appeal for those offences. They were not part of the course of conduct referred to by the judge. The offences were separate offences, which were committed on different days and at different places. This aspect of the applicant’s first submission must fail.
The second aspect of the first submission is closely related to the first. It is said the magistrate should have followed the approach taken in Power v French (supra). In that case, the appellant had been sentenced by a judge of this Court on 9 April 1973 for the offence of breaking, entering and stealing, and causing grievous bodily harm with intent to disable. Both offences were committed on 25 December 1972. In sentencing the appellant, the judge also took into account three further cases of breaking, entering and stealing. The judge imposed a sentence of imprisonment with hard labour for 3 years, but she suspended the sentence under the provisions of the now repealed Offenders Probation Act 1913. The appellant appeared before a court of summary jurisdiction on 3 May 1973. He pleaded guilty to an offence of unlawful possession committed on 25 October 1972 and he also asked the special magistrate to take into consideration the illegal use of a motor vehicle by him on 25 December 1972. The special magistrate sentenced the appellant to 15 months’ imprisonment and he did not suspend the sentence. On appeal, the appellant submitted that the special magistrate should have suspended the sentence of imprisonment bearing in mind that, shortly prior to the date on which the sentence was imposed, he was given a suspended sentence of imprisonment by a judge of this Court.
Bray CJ (with whom Zelling J agreed) said that although the order of the judge did not make the function of the special magistrate automatic, the special magistrate should have hesitated long before disturbing the judge’s plan. In considering the applicant’s submission, Bray CJ said that one important consideration was whether, had the judge known about the offences which were before the special magistrate, she would have acted differently. He concluded that if the judge had known about the circumstances of the offence before the special magistrate, she would not have altered her decision. He said that the special magistrate should have suspended the sentence of imprisonment which he imposed. Bray CJ did add the following qualification (at 104):
I repeat that in a case like this the offences dealt with by the court of summary jurisdiction and unknown to the higher court may well be offences of such a nature as to make it dangerous to the community for the defendant to be at large or to indicate such inveteracy in wrongdoing as to make rehabilitation hopeless. This is not, in my view, such a case.
The applicant’s submission in this case comes down to this. When sentencing the applicant in 1994, the magistrate should have noted that the housebreaking offences for which the applicant was sentenced by the Court of Criminal Appeal in 1990 were committed at about the same time as the housebreaking offences before him, and that the Court of Criminal Appeal had limited the overall sentence by reference to the principle of totality, or the need to avoid a crushing sentence. The submission is that, paying proper regard to these matters, the magistrate should have imposed a quite nominal sentence, or one which was concurrent with the existing sentence.
The implication in the submission was that, had the Court of Criminal Appeal in 1990 known of the offences before the magistrate and the offences he was asked to take into consideration, it would have added little, if anything, to the sentence it in fact imposed, and that the magistrate should have reached that conclusion. In my opinion, the submission fails because, if for no other reason, that proposition is not made out. It cannot be said with any confidence what the Court of Criminal Appeal would have done if it had also been sentencing for a further six housebreaking offences, and been asked to take 19 other housebreaking offences into consideration. It must also be remembered that disclosure of the offences by the applicant at an earlier point in time might have meant that they could have been taken into account by the Court of Criminal Appeal.
As far as the head sentence of 6 years’ imprisonment is concerned, it is arguable that the magistrate might have placed greater weight on the fact that the offences only came to light because the applicant disclosed them to the relevant authorities, but what he did was within the proper exercise of the discretion entrusted to him and no ground for appellate intervention has been established: House v The King (1936) 55 CLR 499. The extension of the non-parole period of 18 months was well within the appropriate range.
I reject the applicant’s first submission.
In relation to the second submission, it is not entirely clear from the magistrate’s reasons or the court file that the magistrate did overlook the extension of the non-parole period ordered by the District Court judge on 22 April 1993. In any event, it is no longer relevant to consider the submission in relation to the non-parole period, because it expired on 30 July 1999. The magistrate does appear to have overlooked the head sentence of 20 months’ imprisonment imposed by the District Court judge. However, there is no firm reason to think that had the magistrate taken into account the sentence imposed by the judge of the District Court it would have made any difference to the sentence of 6 years’ imprisonment which he imposed. I agree with counsel for the respondent that the magistrate would not have taken an approach that would in any way have resulted in leniency being shown for the offence of escaping from custody, which called for a separate and substantial penalty.
I reject the applicant’s second submission.
Even if I had considered it appropriate to extend the time for the institution of the appeal, I would dismiss the appeal.
Conclusion
The application for an extension of time within which to institute the appeal is dismissed.