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Supreme Court Rules 1987 r 96C.02; Criminal Law Consolidation Act 1935 ss 170 (repealed), 310 (repealed); Criminal Law (Sentencing) Act 1988 s 18A; Statutes Amendment (Truth in Sentencing) Act 1994 (generally); Offenders Probation Act 1931 (repealed), referred to.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on an information with five counts of breaking and entering a building and committing an offence to which the now repealed s 170 of the Criminal Law Consolidation Act 1935 (“CLCA”) applied, namely, theft, and one count of breaking and entering a building intending to commit an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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Modra v Police

Details

AGLC: Modra v Police [2006] SASC 52
Case: [2006] SASC 52
Decision Date: 24 February 2006

CaseChat Overview and Summary

Modra sought an extension of time to appeal against the sentence imposed by the magistrate on 1 March 1994, and to appeal the sentence itself. The applicant was charged with six counts of breaking and entering a building and committing an offence to which the repealed s 170 of the Criminal Law Consolidation Act 1935 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 applicant was also asked the magistrate to take into account 19 other offences of breaking and entering at sentencing, which were not the subject of charges. The magistrate imposed a sentence of 6 years imprisonment, 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.

The legal issues to be decided were whether the time for the institution of the appeal should be extended, and if so, whether the appeal should be allowed. The court considered the principles governing applications for an extension of time, and whether the applicant had provided a satisfactory explanation for the delay in instituting the appeal. The court also considered whether there was a risk of a miscarriage of justice if the extension of time was not granted, and whether the appeal would be dismissed on the merits if the extension of time was granted.

The court held that the applicant had not provided a satisfactory explanation for the delay in instituting the appeal, and that the appeal was out of time by a very substantial period. The court held that even if the extension of time was granted, the appeal would be dismissed on the merits. The court held that there was no risk of a miscarriage of justice if the extension of time was not granted. The court held that the application for an extension of time was dismissed.

The court dismissed the application for an extension of time to institute the appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.