R v Harrington

[2015] ACTCA 2

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

R v Harrington

Citation:

[2015] ACTCA 2

Hearing Date:

4 February 2015

DecisionDate:

4 February 2015

Before:

Murrell CJ

Decision:

Grant leave to appeal out of time

Category:

Procedural and other rulings

Catchwords:

APPEAL – Application to appeal out of time – appeal against sentence − prejudice

Legislation Cited:

Court Procedure Rules 2006 (ACT) rr 5332(2), 5405(2)

Cases Cited:

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Parker v The Queen [2002] FCAFC 133

R v Meyboom [2012] ACTCA 2

Parties:

The Queen (Applicant)

John Phillip Harrington (Respondent)

Representation:

Counsel

Ms S Cronan (Applicant)

Mr F J Purnell SC (Respondent)

Solicitors

ACT Director of Public Prosecutions (Applicant)

Kamy Saeedi Law(Respondent)

File Number:

ACTCA 64 of 2014

Decision under appeal: 

Court:  Supreme Court of the ACT

Before:  Burns J

Date of Decision:         13 November 2014

Case Title:  R v Harrington

Citation: [2014] ACTSC 321

Court File Number:       SCC 83 of 2012

MURRELL CJ:

1. The Applicant seeks leave to appeal out of time from sentences imposed by Burns J on 13 November 2014. His Honour imposed a sentence of four years and six months’ imprisonment for an offence of attempt to possess a marketable quantity of an unlawfully imported border controlled drug, namely cocaine, and a wholly concurrent sentence of 10 months’ imprisonment in relation to an offence of trafficking in cocaine.

1. On 12 December 2014, one day out of time, the Applicant filed a notice of appeal. The Applicant had made a mistake as to when the 28 day appeal period expired. On 27 November 2014 (prior to the expiry of the appeal period), the Applicant had advised the Respondent that it was considering an appeal.

1. On 16 December 2014, the Applicant lodged an application for leave to appeal out of time. Regrettably, the incorrect form was lodged. When advised of the mistake, the Applicant lodged the correct form.

1. Having received no further contact from the Applicant, on 5 January 2015, the Respondent sent an email to the Applicant seeking confirmation that it had decided to lodge no appeal. On 12 January 2015 the Applicant informed the Respondent that it proposed to pursue an application for leave to appeal out of time.

Proposed Grounds of Appeal

1. The grounds of appeal that the Applicant wishes to pursue are that:

(a)The wholly concurrent sentences breach the principles in Pearce v R (1998) 194 CLR 610 and totality principles;

(b)Overall, the sentences are manifestly inadequate;

(c)The Respondent was not, in any practical sense, a first time offender and should not have been dealt with as such; and

(d)The sentences were discounted for utilitarian reasons, contrary to R v Cameron (2002) 209 CLR 339

Submissions on the Application

1. The Respondent opposed the grant of the application on several bases. The Respondent referred to the Court Procedure Rules 2006, particularly r 5332(2). That Rule sets out requirements for an application for leave to appeal out of time. It refers…