R v Kijurina

[2017] NSWCCA 59

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v Kijurina [2017] NSWCCA 59

Hearing dates:

24 March 2017

Decision date:

24 March 2017

Before:

Basten JA, Hoeben CJ at CL, Walton J

Decision:

(1)   Vacate the hearing of the appeal listed for today.

 

(2)   Return the matter to the Registrar to fix a new date for hearing of the Director’s appeal.

 (3)   The matter be listed before the Registrar for a call-over on Thursday, 30 March 2017.

Catchwords:

PRACTICE AND PROCEDURE – criminal appeal – prosecution appeal against inadequacy of sentence – application by offender to vacate hearing – late withdrawal of legal representation – failure to obtain private funding – application for legal aid pending

Category:

Procedural and other rulings

Parties:

Director of Public Prosecutions (Appellant)
Jacob Kijurina (Respondent)

Representation:

Counsel:
Mr N J Adams SC (Appellant)
Ms S Goodwin (Respondent)

  Solicitors:
Solicitor for Public Prosecutions (Appellant)
Salvos Legal Humanitarian (Respondent)

File Number(s):

2014/144612

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

27 October 2016

Before:

Jeffreys DCJ

File Number(s):

2014/144612

Judgment

1. THE COURT: On 28 October 2016 Mr Kijurna was sentenced by Jeffreys DCJ for two offences of supplying a prohibited drug in an amount being not less than a commercial quantity. The supplies took place on 13 May 2014 and involved methylamphetamine oil. There were two such charges, for which the offender was sentenced to be imprisoned for two years and 15 months respectively, the sentences to be served concurrently and in each case to be served by way of an intensive correction order.

2. The sentences were imposed on 28 October 2016. On 14 December 2016 the Director of Public Prosecutions filed a notice of appeal contained a single ground, namely that the sentences pronounced were manifestly inadequate. Amended written submissions were filed in support of the appeal on 21 March 2017.

3. In a matter such as this, it is in both the public interest and the interests of the offender that the appeal be heard and determined expeditiously.

4. On Tuesday, 21 March the Registrar received an email from the offender’s father stating that, on the previous evening, the offender’s solicitor and barrister had withdrawn from the case.

5. No formal application was made on behalf of the offender, nor was any affidavit filed in support of the application, until this morning. Nevertheless the Registrar was advised last night that Ms Goodwin of counsel would be appearing on the adjournment application, which she did. The Court is grateful for her assistance in this matter.

6. On the basis of affidavit material read by Ms Goodwin it is clear that the reason behind the withdrawal was the failure of the offender and his family to raise the funds for private representation. As the communication noted and as the affidavit explained, assistance is being sought by way of legal aid, but has not yet been obtained.

7. An application for an adjournment of an appeal in this Court, long after it has been listed and very close to the time of the hearing, is not encouraged. Not only does it delay the proper disposal of the case in question, but it means that another case will have been unnecessarily delayed. It is particularly undesirable to adjourn matters which have been listed expeditiously, as this matter was, for the reasons noted.

8. Nevertheless the primary concern must be fairness to the offender, who faces the possibility of an increased sentence. There is no suggestion that the adjournment application has been manipulated in order to delay the determination of the appeal. There is obvious merit in the proposition that fairness to the offender requires that he be given the opportunity to obtain legal representation, through available providers. Accordingly, the Court should vacate the hearing of the appeal listed for today and return the matter to the Registrar to fix a new date for hearing. Nevertheless, the relisting should occur without undue delay, the intention being that the offender have a reasonable opportunity to obtain representation, not that the matter will not be relisted until representation is obtained. From what Ms Goodwin has said today, it is likely that representation will be obtained in the near future.

9. Accordingly the Court should make the following orders:

1. Vacate the hearing of the appeal listed for today.

2. Return the matter to the Registrar to fix a new date for hearing of the Director’s appeal.

3. Direct that the matter be listed before the Registrar for call-over on Thursday, 30 March 2017.

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Decision last updated: 31 March 2017