R v Rogers

[2011] SASCFC 95

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Application)

R v ROGERS

[2011] SASCFC 95

Judgment of The Court of Criminal Appeal (ex tempore)

(The Honourable Chief Justice Doyle, The Honourable Justice David and The Honourable Justice Peek)

19 August 2011

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - NOTICES OF APPEAL - TIME FOR APPEAL AND EXTENSION THEREOF

Application for an extension of time within which to apply for permission to appeal against sentence - whether the explanation for the significant delay in filing the application was satisfactory - whether an appeal, if an extension of time and permission were granted, would have reasonable prospects of success.

Held (Doyle CJ with David and Peek JJ concurring):  the overall delay was not satisfactorily explained - if permission were granted, there was no reasonable prospect of success.

Application for an extension of time within which to apply for permission to appeal against sentence refused.

R v ROGERS
[2011] SASCFC 95

Court of Criminal Appeal:  Doyle CJ, David and Peek JJ

1. DOYLE CJ (ex tempore):              Mr  Rogers has applied for an extension of time within which to apply for permission to appeal against a sentence imposed by the District Court.

2. Mr Rogers pleaded guilty to a charge of aggravated causing death by dangerous driving.  The maximum penalty for that offence is life imprisonment.  It was alleged and admitted that at the time in question there was present in his blood a concentration of 0.08 grams per 100 millilitres of blood or more.

3. The Judge imposed a sentence of imprisonment for six years nine months.  That sentence had been reduced by 10 per cent, taking into account a late plea of guilty.  The Judge fixed a non-parole period of five years five months.  The sentence was imposed on 22 October 2009, and took effect from that date.

4. The application now before the Court was filed on 24 May 2011. It is about 18 months out of time.

5. A Judge of this Court refused the application for an extension of time within which to appeal.  Mr Rogers now renews that application to this Court.

6. There are two main issues for the Court to consider.  First, the delay in making the application and the explanation for the delay.  Second, the prospects of an appeal succeeding, if an extension of time and permission to appeal are granted.

7. Mr Rogers has provided an explanation which does cover some of the delay.  However, it is far short of adequately explaining the delay in its totality. For example, by letter dated 12 November 2009, Mr Rogers was informed that counsel had advised that his appeal had no reasonable prospect of success, and he was advised to contact his solicitor urgently.  Mr Rogers realised that the appeal had not been instituted, but thought he needed to have legal representation to appeal.  Nothing seems to have happened until June 2010 when his parents spoke to another solicitor.  Advice was given again that an appeal had no reasonable prospect of success.  Again, nothing much more seems to have happened until March this year, when a third solicitor was approached resulting in the application being made to this Court.

8. As I have said, I consider that while there is an explanation for some of the time that has elapsed, the overall delay is not satisfactorily explained.

9. I turn to the merits of the appeal, were the appeal to be instituted.

10. Mr Rogers complains that in a number of respects submissions put to the sentencing Judge did not reflect his instructions.  It is appropriate for the Court to consider those complaints without inviting those involved to provide their answer, bearing in mind that at this stage the Court is considering only whether an extension of time should be granted, and whether permission to appeal should be granted.

11. The offence in question occurred when a motorcycle driven by Mr Rogers collided with a motor car.  A pillion passenger on the motorcycle was killed in the accident.

12. One matter that arose from submissions before the Judge was whether, in the context of an argument between the pillion passenger and his wife, Mr Rogers had encouraged the passenger to go with him.  In submissions before the Judge, it was acknowledged that he had encouraged the pillion passenger to travel with him, but Mr Rogers now says that was contrary to his instructions.  The Judge noted that the pillion passenger made his own decision, but also recorded that Mr Rogers had persuaded him to go with him.

13. There is no indication that the Judge regarded this as being of any great significance.  I do not go so far as to say it was of no significance at all, but its significance must have been minor at best.

14. Mr Rogers complains that certain aspects of the collision were not adequately dealt with.  He says that vegetation obscured his view.  In my opinion, that could not have assisted his cause.  He says that adequate submissions were not put to demonstrate that he was travelling at a relatively slow speed, but the fact is the Judge made no finding about his speed, and the real issue was his lookout.

15. There was material before the sentencing Judge indicating that Mr Rogers had made difficulty over providing a blood sample.  He also complains that submissions about the amount of time he spent drinking were not adequate.  As to the first matter, I consider that his prospect of challenging the evidence that he was uncooperative is very slight.  As to the second matter, it was the level of alcohol in his blood that counted, not the time over which he was drinking.

16. He complains that counsel acknowledged that he was an alcoholic.  It is clear that counsel is not suggesting any formal diagnosis, but was reflecting on something that was an undeniable aspect of the matter.  That is, the circumstance that Mr Rogers had a very poor record, including six offences involving driving and alcohol.  Whether or not he was an alcoholic is really neither here nor there.  The significant thing was the record, and his failure, apparently, to learn from past experiences.

17. Standing back and considering as a whole the matters that Mr Rogers wishes to put before the Court, I cannot accept that they are of great significance.  I am prepared to acknowledge they might have some slight significance.

18. Assuming the matters Mr Rogers wishes to put were before the Court, in my opinion there is still no reasonable prospect of the Court concluding that the sentence was manifestly excessive.  When one bears in mind that the maximum punishment was life imprisonment, and bears in mind Mr Rogers’ very bad record, and the circumstances of the offence, I do not think it is arguable that the sentence was manifestly excessive.

19. For those reasons, bearing in mind also that delay is not satisfactorily explained, and that the prospects of any appeal succeeding are remote, I would refuse to grant an extension of time within which to appeal.

20. DAVID J (ex tempore):     I would refuse to grant an extension of time within which to appeal.  I agree with the reasons of the Chief Justice.

21. PEEK J (ex tempore):       I also would refuse to grant an extension of time for the reasons given by the Chief Justice.