R v Marsh

[2004] VSCA 240

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 158 of 2004

THE QUEEN

v.

ALLAN JOHN MARSH

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APPLICATION FOR EXTENSION OF TIME

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JUDGES:	WINNEKE, P., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 December 2004
DATE OF JUDGMENT:	8 December 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 240

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Criminal law - Practice and procedure - Applications for leave to extend time for appealing against conviction and sentence - "Conviction application" not pursued - Court refusing application for extension of time for appealing against sentence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr M.C. Kowalski	Causovski Lawyers

WINNEKE, P. (for the Court):

1. In this matter the applicant, Allan John Marsh, seeks this Court's leave to extend the time within which he may lodge an application for leave to appeal against his sentence. 

1. He pleaded guilty in the County Court to one count of trafficking in cannabis and one count of cultivating cannabis in not less than a commercial quantity.  He pleaded guilty as well to a summary offence of using cannabis.  He admitted a number of prior convictions which were mainly irrelevant to the offences before the court.  He was sentenced on 22 April of this year to 12 months' imprisonment on count 1 (the trafficking of cannabis) and 18 months on count 2 (the trafficking by way of cultivation of a commercial quantity).  The judge cumulated six months of the sentence imposed on count 1 upon the 18 months imposed on count 2.  The total effective sentence was therefore one of two years, and his Honour fixed a non-parole period of 12 months before the applicant should become eligible for parole.  He also fined the applicant $200 for the summary offence.

1. On 3 June of this year the applicant filed documents seeking leave to appeal against his sentence out of time.  On the same day he had filed in the Registry an application to extend the time to appeal against the convictions recorded, notwithstanding his pleas of guilty.  The Court was informed yesterday that he was now abandoning that application, and that has been confirmed by Mr Kowalski on his behalf in this Court today.  The Court will therefore give the applicant leave to withdraw and, indeed, to abandon his application to extend the time for applying for leave to appeal against his conviction.  He wishes, nevertheless, to pursue his application to extend the time to appeal against sentence.  We have granted leave to submit argument as to why the Court should extend the time on the basis of an additional ground.  We have reserved our right to refuse leave to do so in the absence of leave to extend time being granted. 

1. Having heard the argument, the Court has formed the view that the time for seeking leave to appeal against sentence should not be extended because, on any view, there are insufficient merits in the application for leave to appeal against the sentence.  The grounds upon which leave is sought are as follows:  first, that the sentencing judge accorded insufficient weight to the applicant's addiction to cannabis use in the sentencing process;  secondly, that the judge gave insufficient weight to the applicant's efforts to rehabilitate himself;  and, thirdly, that the sentence in the circumstances was manifestly excessive.  In our view, there is insufficient basis in these grounds to satisfy the Court that leave to extend the time should be given, both in respect of the reasons for the delay and the merits of the application.

1. So far as the reasons for delay are concerned, the affidavit of the applicant suggests that he received legal advice on the date upon which sentence was imposed to the effect that an appeal would not succeed.  At a later stage he received different advice, which convinced him that he ought to make application.  In this Court, Mr Kowalski, who appears for the applicant and who, as usual, has made submissions in a very attractive form, suggested that the reason why he did not accept the earlier advice was because that advice had an addendum attached to it to the effect that this Court might well increase the sentence if an appeal was taken, and later, when he was told differently, he decided to act on that later advice and seek to have the time extended for appealing.

1. We have formed the view that the reasons which are now given for seeking an extension of time do not appear to be entirely meritorious, having regard to the history of the matters that we have described.  In any event, we take the view that there would be no merits in the appeal which would warrant the Court extending time. 

1. The proposed grounds 1 and 2 are really particulars of ground 3, namely, that the sentences are manifestly excessive, and in our view that ground is hopeless.  The police found in the premises occupied by the applicant, in what they described as "false rooms" designed by him, a sophisticated cannabis crop comprising a commercial quantity of cannabis.  In the applicant's favour, he was co-operative with the investigating police.  Nevertheless, as his Honour said, the cultivation process and the trafficking was "carefully planned and cleverly organised". 

1. Mr Kowalski has submitted to us this morning that his Honour insufficiently recognised, in coming to these conclusions, the connection between the applicant's cannabis use and his offending.  The offending, he said, was based more on need than greed.  Certainly, he submitted, there was enough here to extend the time for leave to appeal and submitted that there was a reasonable prospect of the appeal being successful.

1. Having carefully taken into account everything that Mr Kowalski has submitted, we must say that we cannot agree.  In imposing what we believe is a very lenient sentence, his Honour did take into account the applicant's pleas of guilty, his level of co-operation, his background and his addiction to cannabis.  Although the applicant's trial counsel suggested that it would be open to his Honour to suspend any sentence imposed, his Honour regarded such a course as inappropriate.  In our view, his Honour was correct in coming to that conclusion, and we take the view that the Court would not interfere with his discretion on that account.  The sentences which his Honour imposed were, we think, very lenient for this type of offending, and lenient to the point that we have formed the view that this Court would not in any circumstances be likely to overturn those sentences if leave was given to extend the time for appealing.

1. For those reasons, we refuse the application for leave to extend the time for appealing against the convictions recorded and the sentences imposed.

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