R v Rowe
[2015] SASCFC 124
•1 September 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Application)
R v ROWE
[2015] SASCFC 124
Judgment of The Honourable Justice Blue
1 September 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Applications for extension of time and permission to appeal against sentences.
In April 2004, the applicant was sentenced in the District Court for aggravated serious criminal trespass and assaulting a police officer to imprisonment for one year and eight months cumulative upon pre-existing unexpired head sentences totalling 10 years four months and nine days. A non-parole period of nine years and seven months was fixed.
In June 2005, the applicant was sentenced in the Supreme Court for shooting with intent to do grievous bodily harm to imprisonment for 12 years cumulative upon the pre-existing head sentences. A non-parole period of 17 years and seven months commencing in April 2004 was fixed.
In May 2014, the applicant sought an extension of time and permission to appeal against those two sentences.
Held:
1. It is reasonably arguable that the non-parole periods fixed were manifestly excessive. Extension of time and permission to appeal granted in relation to this proposed ground of appeal (at [141], [146], [152]).
2. It is reasonably arguable that the applicant’s counsel breached his duty in failing to advise the applicant about advancing on sentencing submissions in the Supreme Court different factual circumstances to those arising on the prosecution evidence. Applications in relation to this proposed ground of appeal referred to the Full Court (at [158]-[164]).
3. It is reasonably arguable that the applicant’s counsel breached his duty in relation to advising the applicant about challenging certain statements made by the prosecution and by the victim in a victim impact statement which were considered by the Supreme Court Judge. Applications in relation to this proposed ground of appeal referred to the Full Court (at [172, [175], [178]-[179]).
4. Applications in relation to the proposed ground that the head sentenced imposed by the Supreme Court Judge was manifestly excessive referred to the Full Court (at [182]).
Correctional Services Act 1982 (SA) Part 7; Criminal Law Consolidation Act 1935 (SA) ss 21, 169(1); Statutes Amendment (Correctional Services) Act 1994 (SA) s 4; Statutes Amendment Act (Truth in Sentencing) Act 1994 (SA) s 20; Summary Offences Act 1953 (SA) s 6(1), referred to.
Coulter v The Queen (1988) 164 CLR 350; Police v Warren [2000] SASC 285; R v Fyfe [2004] SASC 391; R v Parenzee [2007] SASC 316; R v Tait [1998] QCA 304, discussed.
Browne v Dunn (1893) 6 R 67; Owen v State of South Australia (1996) 66 SASR 251; R v Basha (1989) 39 A Crim R 337; R v McHugh (1985) 1 NSWLR 588; R v Newman [2004] NSWCCA 102; R v Prasad (1979) 23 SASR 161; R v Pugh [2005] SASC 427; R v Tilley [2010] SASCFC 73; R v Wilkes [2001] NSWCCA 97, considered.
R v ROWE
[2015] SASCFC 124Criminal: Application for permission to appeal
BLUE J.
Michael Dean Rowe applies for an extension of time and permission to appeal against two sentences.
The applicant was sentenced on 30 April 2004 by a District Court Judge for aggravated serious criminal trespass in a non-residential building[1] and assaulting a police officer in the execution of his duty[2] on 14 May 2001. The sentence imposed was imprisonment for one year and eight months cumulative upon pre-existing unexpired head sentences totalling 10 years, four months and nine days commencing on 30 April 2004. The Judge fixed a non‑parole period of nine years and seven months commencing on 30 April 2004.
[1] Criminal Law Consolidation Act 1935 (SA) s 169(1).
[2] Summary Offences Act 1953 (SA) s 6(1).
The applicant was sentenced on 3 June 2005 by a Judge of this Court for shooting with intent to do grievous bodily harm[3] on 19 June 2001 to imprisonment for 12 years cumulative upon the pre-existing unexpired head sentences of 12 years and nine days that commenced on 30 April 2004. The Judge fixed a non-parole period of nine years and seven months commencing on 30 April 2004. That period is not due to expire until 30 November 2021.
[3] Criminal Law Consolidation Act 1935 (SA) s 21 as at 19 June 2001.
The applicant seeks an extension of time in which to appeal and permission to appeal against the sentence imposed by the District Court Judge on the ground that the non-parole period of 17 years and seven months commencing on 30 April 2004 was manifestly excessive.
The applicant seeks an extension of time in which to appeal and permission to appeal against the sentence imposed by the Supreme Court Judge on four grounds:
1.The applicant was sentenced on an incorrect factual basis because his lawyers failed to adduce evidence from him on sentencing submissions as to the factual circumstances of the offence.
2.The applicant was sentenced on an incorrect factual basis because his lawyers failed to question or challenge parts of the Director’s summary of prosecution evidence and the victim impact statement or make submissions on implications that might be drawn by the Judge from them.
3.The head sentence of 12 years was manifestly excessive because the Judge failed to have sufficient regard to the principle of totality in taking into account the combined head sentences imposed in 1988, 1991 and 2004.
4.The non-parole period of 17 years and seven months commencing on 30 April 2004 was manifestly excessive.
Background
The applicant was born in September 1963.
Between 1978 and 1984, the applicant was sentenced initially in the Children’s Court and later in the Magistrates Court for burglary and other offences to which he pleaded guilty.[4]
[4] Exhibit P13 antecedent report 30 April 2003.
In September 1984, the applicant was sentenced in this Court for burglary to which he pleaded guilty. He was sentenced to imprisonment for two years and eight months with a non-parole period of 16 months commencing on 28 May 1984.[5] He was released on parole in April 1985.
[5] Exhibit P13 antecedent report 30 April 2003.
In June 1988, the applicant was sentenced by Jacobs J in this Court for inter alia robbery, burglary and escaping from prison between June 1985 and July 1987 to which he pleaded guilty.[6] He was sentenced to imprisonment for 21 years and six months backdated to commence on 5 July 1987. A non-parole period of 15 years was subsequently[7] fixed to commence on 5 July 1987.[8] Assuming that he was of good behaviour, under the system of remissions for good behaviour in force as at 1991,[9] the sentence was equivalent to imprisonment for 16 years and six months with a non-parole period of 10 years.[10]
[6] Exhibit P7 sentencing remarks 2 June 1988.
[7] On 8 December 1989.
[8] Exhibit P8 sentencing remarks 8 December 1989.
[9] 15 days remission per calendar month served with extra remissions for abnormal circumstances such as industrial disputes and deductions for bad conduct. See Correctional Services Act 1982 (SA) Part 7 ss 79, 79a and 80. Remissions were applied to both the non-parole period and head sentence: s 79(1)(a).
[10] Rounded down to whole months.
On 9 December 1990, the applicant escaped from prison and committed robbery and burglary. He resumed serving his existing sentences on 16 January 1991 after being at large for 37 days.[11]
[11] The 37 days were not counted as service of his term of imprisonment.
In August 1991, the applicant was sentenced by Duggan J in this Court for those new offences, to which he pleaded guilty.[12] He was sentenced to further terms of imprisonment totalling nine years and six months cumulative upon his existing sentences. This resulted in total head sentences of 31 years commencing on 5 July 1987. A non-parole period of 19 years was fixed commencing on 5 July 1987.
[12] Exhibit D9 sentencing remarks 30 August 1991.
On 1 August 1994, the Statutes Amendment (Truth in Sentencing) Act 1994 (SA) abolished remissions for good behaviour. Existing sentences were automatically reduced by the Act[13] and a subsequent Act[14] by past remissions and by the maximum future remissions that could have been earnt under the old system up to expiry of the non-parole period.[15] The effect was to convert the applicant’s head sentences to imprisonment for 24 years and four months and nine days with a non-parole period of 12 years and four months and nine days[16] commencing on 5 July 1987. The non-parole period was due to expire on 20 December 1999.[17]
[13] Statutes Amendment (Truth in Sentencing) Act 1994 (SA) s 20.
[14] Statutes Amendment (Correctional Services) Act 1995 (SA) s 4.
[15] Owen v State of South Australia (1996) 66 SASR 251 at 253 per Cox J (with whom Prior J agreed) and 259 per Olsson J.
[16] This was less than two thirds of the non-parole period fixed because industrial disputes had increased past remissions above one third.
[17] This was 37 days more than 12 years and four months and 9 days from 5 July 1987 because the 37 days at large did not count as time served or on parole.
On 20 December 1999, the applicant was released on parole. There remained 12 years unexpired of the 1988 and 1991 head sentences which were then due to expire on 20 December 2011.
On 14 May 2001, the applicant broke and entered a shed at a residential property at Torrens Park. Sergeant McDaid attended and was assaulted by the applicant. Detective Senior Constable Scott Merrett investigated these offences.
By operation of section 75(1) of the Correctional Services Act 1982 (SA), upon the applicant’s subsequent conviction of those offences, he became liable to serve the balance unexpired as at 14 May 2001 of his 1988 and 1991 head sentences. The balance unexpired was then 10 years seven months and six days.
On 7 June 2001, police attended at an address at Happy Valley and arrested K1. K1 was in a relationship with K2.
On 16 June 2001, several shots were fired from a Margolin pistol into a blue Commodore outside a house at which K2’s son was living at Black Forest. Detective Merrett also investigated this offence. The police recovered four bullets (projectiles) from the blue Commodore. The police later found in a green Commodore that the applicant had been driving a note addressed to T saying inter alia “I did a drive-by”. T was the name of the applicant’s girlfriend. The note expressed animosity towards K1 and K2. Evidence was given by a police officer at the applicant’s trial that he found a cartridge case in the green Commodore.
On 19 June 2001, the applicant shot V at his workshop at Lonsdale. The police recovered one bullet and two cartridge cases at the scene. Detective Acting Sergeant Paul Yeomans investigated this offence.
On 20 June 2001, Detective Merrett telephoned W, an associate of the applicant. W attended at Sturt police station and was interviewed by Detective Merrett and Detective Senior Sergeant Michael Johnson. Detective Merrett made notes of the conversation.[18] The notes included the following passages relating mainly to what W told them the applicant had told him:
[18] Exhibit D35. These were later tendered and admitted as exhibit VD D16 on a voir dire at the beginning of the applicant’s trial in September 2002.
- [K1] told [W] later that [the blue Commodore] has been shot up by ROWE at Forestville
- ...
- [ROWE] stated he was ripped off [K1]/[K2]
- Showed [W] .22 - 10 shot pistol stuck right side – $1800 – had to do job. Got it from Jim.
…
- Pistol 8” in length black
…
- Had a few beers.
- Admitted shooting drive-by.
…
[W] “Did you have anything to do with the crap at Lonsdale”
ROWE “What do you think.” laughed
“One down 2 to go.”
“[K1] + [K2]”
“Blames [K1] for T having a miscarriage … [K2] for ripping him off with a car”
On 21 June 2001, the police showed V a set of photos that included a photo of the applicant. V said that the photo of the applicant looked like his assailant but he could not be sure. Another witness did likewise.[19]
[19] David Howkins Trial Transcript Exhibit D33 2249, 2307.
On 21 June 2001, Detective Merrett prepared a four page witness statement by W based on his 20 June 2001 notes.[20] W declined to sign a witness statement at that time.
[20] Exhibit D36. The unsigned undated statement was tendered and admitted as exhibit VD D53 on a voir dire at the end of the applicant’s trial in December 2002.
On 22 June 2001, Detective Merrett met W at a supermarket carpark. Detective Merrett made notes of the conversation.[21] The notes included the following passages relating to what W told him the applicant had told him:
- Met ROWE between 6-9 pm.
- ROWE off his face + aggro
- Stated he did shooting at LONSDALE as a favour, for which someone was going to get [K1] for ROWE
[21] Exhibit D35. These were tendered and admitted as exhibit VD P64 on a voir dire at the end of the applicant’s trial in December 2002.
On 29 June 2001, police observed W and the applicant’s girlfriend T in a room at a motel with the applicant. On 30 June, the applicant was arrested in the room. The police found a Margolin .22 pistol and .22 ammunition in the room. The applicant was charged with attempted murder of V.
One of the cartridge cases recovered from the scene of the shooting of V on 19 June, the bullets recovered from the blue Commodore the subject of the Black Forest shooting on 16 June and the cartridge case said to have been found in the green Commodore all matched the Margolin pistol.
The Parole Board subsequently cancelled the applicant’s release on parole for 90 days from 30 June to 27 September 2001 due to breaches of parole conditions and he was imprisoned during that period. This counted towards service of his 1988 and 1991 sentences.[22]
[22] By operation of section 74(1) and section 75(1) of the Correctional Services Act 1982 (SA), the unexpired balance of 10 years seven months and six days as at 19 May 2001 resumed running as from 30 June 2001.
In the morning of 6 July 2001, the applicant had an off the record discussion with Detectives Merrett and Yeomans while in custody. No record of interview was made in contravention of section 74D of the Summary Offences Act 1953 (SA). Detectives Merrett and Yeomans later gave evidence on the voir dire at the applicant’s trial that the applicant admitted that he shot V on 19 June 2001 but said that he did not expect it to get past the committal. Detective Merrett gave evidence that the applicant said that he did not expect V to give evidence and he also admitted the assault of Sergeant McDaid.
In the afternoon, the applicant was formally interviewed by Detectives Merrett and Yeomans and a record of the interview was made.[23] The applicant declined to answer questions about the shooting of V or the assault of Sergeant McDaid, although he admitted to the shooting of the blue Commodore at Black Forest on 16 June 2001. It was put to him that the bullets recovered from the blue Commodore and the cartridge case recovered from the green Commodore matched a bullet recovered in the shooting of V.
[23] Exhibit P18.
From 27 September 2001 onwards, the applicant was remanded in custody on the attempted murder charge.[24]
[24] At that point, the unexpired balance of the 1988 and 1991 head sentences was 10 years, four months and seven days.
In November 2001, the applicant retained James Noblett as his solicitor in relation to the attempted murder charge.
In January 2002, the applicant was arraigned on the attempted murder charge and pleaded not guilty. In February 2002, Mr Noblett briefed Mr Ibbotson and on 25 February 2002 Mr Ibbotson first conferred with the applicant together with Mr Noblett.
In March 2002, the trial was listed to commence on 2 September 2002.
Before trial, Mr Ibbotson advised the applicant that the prosecution would find it very hard to prove that the assailant had an intent to kill and hence to obtain a conviction for attempted murder.[25] He also advised the applicant that the prosecution had no identification that he was the shooter other than the record of interview which did not go that far.[26] Mr Ibbotson devised the strategies for the trial adopted from time to time. Mr Ibbotson’s strategy essentially involved putting the prosecution to proof.
[25] Appeal Transcript 240/1-11; 241/20-23.
[26] Appeal Transcript 241/27-31.
On 20 August 2002, the Director laid a fresh information charging shooting with intent to cause grievous bodily harm in lieu of the information charging attempted murder.
On the evening of 29 August 2002 and afternoon of 30 August, W attended at Sturt police station and was interviewed by Detective Merrett. Detective Merrett typed a witness statement during the interview. W signed the witness statement.[27] W said that the applicant admitted to him that he committed the drive-by shooting, that he drove the green Commodore and then abandoned it and that he shot V. W’s statement was provided to Mr Noblett late on that Friday.
[27] Exhibit D36. The statement was tendered and admitted as exhibit VD D54 on the voir dire at the end of the applicant’s trial in December 2002.
On Monday 2 September 2002, when the matter was called on for the commencement of trial, Mr Ibbotson applied to Wicks J for a permanent stay due to the late change of charge, late disclosure of W’s evidence and failure by the prosecution to disclose other matters.
On 4 September 2002, Mr Ibbotson prepared typed instructions by the applicant.[28] Each paragraph was to be answered either yes or no. For example, paragraph 1 said “I wish to plead guilty/not guilty”. The remaining paragraphs set out the anticipated prosecution allegations to be answered yes or no. They included instructions that the applicant did/did not discharge a firearm in the Black Forest shooting and did/did not shoot V. The applicant initialled the deletion of each alternative denying each prosecution allegation and signed the document in the presence of Mr Noblett. Mr Ibbotson prepared two other sets of factual instructions concerning the green Commodore and the Black Forest shooting which the applicant also signed in the presence of Mr Noblett.[29]
[28] Exhibit D21.
[29] Exhibits D22 and D23.
On 4 September 2002, Wicks J dismissed the application for a permanent stay. There was then argument on various applications by Mr Ibbotson to exclude evidence.
Between 11 and 26 September 2002, various witnesses gave evidence on the voir dire or by way of Basha inquiry.[30]
[30] R v Basha (1989) 39 A Crim R 337.
On 11 to 13 September 2002, W gave evidence of the admissions by the applicant of the Black Forest shooting on 16 June and the Lonsdale shooting on 19 June 2001 and of the applicant buying the pistol from Jim broadly in accordance with Detective Merrett’s notes and witness statements, which were tendered on the voir dire.[31]
[31] Exhibits D35, D36 (VD D16, VD P64, VD D53 and VD D54).
On 13 to 18 September 2002, Detective Yeomans gave evidence that before commencement of the formal record of interview on 6 July 2001 the applicant admitted shooting V. He said:
He indicated he was responsible for the shooting of [V] prior to the activation of the tapes.… He said something like ‘[V] asked for it. He owed me some money and I doubt if this will get past the committal.’[32]
[32] Exhibit D33 Trial Transcript 672.
On 19 and 20 September 2002, Detective Merrett gave evidence that before commencement of the formal record of interview the applicant admitted shooting V and assaulting Sergeant McDaid. In relation to V, he said:
Mr Rowe, quite surprisingly to me came out and discussed the shooting. He made admissions to the shooting at Lonsdale, basically stated… that he didn’t expect the matter to get past committal; the victim in the matter, [V], who had been shot, he did not expect to give evidence against him. And he also went on to explain – the gist of the conversation was he went on to explain, he had gone there in relation to a drug debt. [V] had owed him money in relation to a drug debt. On his arrival, he was confronted by [V], who was holding an iron bar. [V] came at him. Rowe was in possession of a pistol, which he produced and shot [V] in the legs.[33]
[33] Exhibit D33 Trial Transcript 923.
At the conclusion of the voir dire, the Judge excluded evidence of the 6 July 2001 interview.
On 11 October 2002, the jury was empanelled and the trial commenced.
On 18 October 2002, V gave evidence.[34] He said that on 19 June 2001 a stranger walked up to him. He said “What can I do for you mate?”, to which the stranger replied “You’ve pissed off a mate of mine” and shot him three times in the left leg, right leg and right arm. He described the stranger in general terms consistent with the appearance of the applicant.
[34] Exhibit D33Trial Transcript 2220-2242.
On 22 October 2002, Detective Merrett was due to give evidence, but his evidence was postponed because Mr Ibbotson sought production of telephone and property seizure records.
On 23 October 2002, Detective Merrett committed suicide. He recorded a conversation in which he said that he had not properly complied with a subpoena, had not provided the defence with a report and a tape of a conversation had gone missing. He said that, if he had been able to walk into the courtroom with a gun, he would have shot Mr Ibbotson.[35] His death was reported to the Coroner on 24 October 2002.[36]
[35] Appeal Transcript 196/31-197/10; 214/28-36.
[36] Exhibit P15.
After Detective Merrett’s suicide, Mr Noblett, Mr Ibbotson and the applicant expected that there would be a coronial inquest and that this was likely to assist the applicant’s case.
Between 20 November and 3 December 2002, W gave evidence. He gave evidence of the admissions made by the applicant of the Black Forest shooting on 16 June and the Lonsdale shooting on 19 June 2001 and of the applicant buying the pistol from Jim broadly in accordance with his evidence on the voir dire.
On 1 December 2002, Mr Ibbotson advised the applicant that it would be in his interests to give evidence. Mr Ibbotson wrote out instructions to this effect which the applicant signed.[37]
[37] Exhibit D19.
On 3 December 2002, the prosecution closed its case.
Between 3 and 6 December, Mr Ibbotson applied for a permanent stay of proceedings, alternatively sought a Prasad direction[38] and alternatively sought reservation of a question of law to the Full Court whether a permanent stay should have been granted. Mr Ibbotson told Wicks J that there would be a defence case.
[38] R v Prasad (1979) 23 SASR 161.
On 6 December 2002, Mr Ibbotson advised the applicant that it would be against his interests to give evidence and in his interests to make another application for a permanent stay of proceedings. Mr Ibbotson advised the applicant that if he gave evidence it would compromise an appeal. The applicant was keen to give evidence and it took some convincing from Mr Ibbotson to persuade him to accept advice not to give evidence. Mr Ibbotson wrote out instructions that the applicant would not give evidence which the applicant signed.[39]
[39] Exhibit D20.
On 9 December 2002, Wicks J refused the three applications made by Mr Ibbotson. The applicant elected not to give evidence. Addresses commenced.
On 13 December 2002, the jury returned a majority verdict of guilty. Wicks J fell ill almost immediately after the verdict. Lander J assumed the task of sentencing the applicant.
On 16 December 2002, Mr Ibbotson wrote to Mr Noblett saying that the applicant had a reasonable prospect of success in an appeal against conviction and there would be numerous grounds of appeal including that the verdict was unsafe and unsatisfactory, the trial Judge erred in not permanently staying the prosecution and the trial Judge erred in failing to give certain directions to the jury.[40]
[40] Exhibit D17.
Mr Ibbotson held a strong view that the trial Judge should have stayed the prosecution in light of the conduct of the police and the prosecution and Detective Merrett’s suicide. There was discussion between Mr Noblett, Mr Ibbotson and the applicant that a coronial finding might well assist an appeal against the conviction. Mr Ibbotson played a decisive role in initiating the decision to appeal to the Court of Criminal Appeal.
On 30 December 2002, Mr Noblett filed a notice of appeal against the conviction. Mr Ibbotson and Mr Noblett agreed to act pro bono because the Legal Services Commission funding cap had been exceeded.
In May and June 2003, the applicant was interviewed by psychologist Mark Holmes at the request of Lander J. The applicant told Mr Holmes that, without taking responsibility, he was sorry that V got injured and the circumstances around his injuries. He said “the offence that I find myself being sentenced for is not as the prosecution case has portrayed it, there was no deliberate plan on my behalf to injure anybody, to shoot anybody”. When asked why his offending was wrong, he said he did not know how to answer that because he was appealing against his conviction.
In June 2003, Mr Holmes provided a report on his assessment of the applicant. He said that the applicant clearly suffered from an antisocial personality disorder of moderate to severe severity, compounded by alcohol and polysubstance abuse. This disorder developed in response to his having been raised in a non-nurturing environment, being exposed to a violent adoptive father, leaving home at 13 to escape being beaten and living on the streets before being made a ward of the State. Anti-social personality disorders usually begin to wane by the fourth decade of life due to ongoing maturational processes, disillusionment with the cycle of crime and imprisonment and increased insight. Frequently this results in increased amenability to treatment. Mr Holmes reported his discussion with the applicant about the circumstances in which V was injured as set out in the previous paragraph.
On 16 July 2003, the matter came on for the first time before the Judge who ultimately sentenced the applicant. During this and subsequent hearings, Mr Ibbotson applied to defer sentencing until the conclusion of the District Court trial of the May 2001 charges and the determination of the appeal against conviction for the June 2001 offence.
On 31 October 2003, in making submissions in support of deferral of sentencing until after the hearing and determination of the conviction appeal, Mr Ibbotson said “depending what happens in the appeal, would depend on whether Mr Rowe will be called as a witness in his sentencing procedures”. The Judge posited an example of a rape trial where the prosecution was put to proof on identity, the jury convicted and the defendant appealed but his instructions were that if the appeal was lost he wanted to tell the judge that he did it, he was sorry but there were mitigating circumstances about his belief.
In February 2004, the trial of the applicant for the May 2001 offending proceeded before the District Court Judge and a jury. Mr Noblett was solicitor and Mr Ibbotson was counsel for the applicant. The issue at trial was identity. The applicant was convicted. He appealed against his conviction to the Court of Criminal Appeal.
On 30 April 2004, the District Court Judge sentenced the applicant for the May 2001 offending.[41] The Judge adopted a starting point of imprisonment for five years, reduced on account of totality to four years and three months. The Judge imposed a sentence of imprisonment for one year and eight months commencing on 30 April 2004, reduced by two years and seven months for time spent in custody since 27 September 2001. The sentence was made cumulative upon the unexpired portion of the head sentences previously imposed totalling 10 years, four months and nine days as at 27 September 2001.[42] This resulted in total head sentences of 12 years and nine days. The Judge fixed a non-parole period of nine years and seven months.
[41] Exhibit P11 sentencing remarks 30 April 2004.
[42] The unexpired portion was overstated by two days: see footnote 24 above.
On 17 December 2004, the Court of Criminal Appeal dismissed the applicant’s appeals against his convictions for the May and June 2001 offences.[43]
[43] Exhibits P10 and D28.
On 17 December 2004, Mr Noblett wrote to Mr Rowe enclosing a copy of the Full Court’s judgment dismissing his appeal against conviction for the June 2001 offence and advising him that consideration would be given to an appeal to the High Court.
On 19 January 2005, the sentencing Judge in this Court convened a further directions hearing following dismissal of the applicant’s conviction appeal. Mr Pearce for the Director agreed to provide a summary of prosecution evidence.[44]
[44] Exhibit D1 transcript of directions hearing.
On 21 January 2005, Mr Noblett wrote to the applicant foreshadowing that the Director was preparing a summary of prosecution evidence.[45]
[45] Exhibit P14 affidavit of Mr Noblett dated 4 March 2015 [15].
On 3 February 2005, Mr Pearce provided a summary of prosecution evidence to Mr Ibbotson. Mr Noblett did not subsequently write to the applicant enclosing the summary of prosecution evidence and could not say that the applicant received it.
On 23 February 2005, there was a further directions hearing. Mr Ibbotson told the Judge that he had received a summary of prosecution evidence. He said that the applicant was currently in Port Augusta. He said that he had handed the applicant a copy of the summary of prosecution evidence that day.[46]
[46] Exhibit D2 transcript of directions hearing.
On 14 April 2005, sentencing submissions were made.[47] Mr Pearce referred to the summary of prosecution evidence previously provided to the Court[48] and Mr Ibbotson said that he did not dispute it. Mr Pearce provided a victim impact statement by V[49] to the Judge and it was not read in court. Mr Ibbotson made no comment about it. Mr Ibbotson made submissions concerning the applicant’s personal circumstances and background.
[47] Exhibit D3 transcript of sentencing submissions.
[48] Exhibit D4 at 19.
[49] Exhibit D5.
On 3 June 2005, the Judge sentenced the applicant for the June 2001 offending.[50] The Judge adopted a starting point of imprisonment for 16 years, reduced on account of totality to 12 years, cumulative upon the head sentences of 12 years and nine days as at 30 April 2004. This resulted in total head sentences of 24 years and nine days. The Judge fixed a non-parole period of 17 years and seven months commencing on 30 April 2004.
[50] Exhibit D29 sentencing remarks 3 June 2005.
Following the sentence, the applicant told Mr Noblett that he wished to appeal against the sentence. Mr Noblett sought funding from the Legal Services Commission but it was not prepared to fund an appeal if the only ground was manifest excess.
On 7 June 2005, Mr Noblett wrote to Mr Ibbotson seeking further grounds of appeal against the sentence other than that the sentence was manifestly excessive. Mr Ibbotson did not reply.
On 1 September 2005, the Coroner made an in chambers finding and closed the file on Detective Merrett’s death.[51]
[51] Exhibit P15.
In June 2012, the applicant attempted to escape from Mobilong prison. In February 2014, in the course of sentencing submissions before a District Court Judge in relation to that offence, he was provided with a copy of the sentencing remarks of 3 June 2005.[52]
[52] Exhibit P30 transcript of sentencing submissions 20 February 2014.
On 3 April 2014, the applicant was sentenced by the District Court Judge to imprisonment for one year cumulative upon his existing sentences and his non-parole period was extended by three months.[53] No complaint is made about this sentence.
[53] Exhibit P12 sentencing remarks 3 April 2014.
On 2 May 2014, the applicant filed an application for permission to appeal against the April 2004 and June 2005 sentences.
The evidence
The applicant, who was self represented, gave evidence in support of his applications. Mr Noblett and Mr Ibbotson gave evidence under subpoena issued by the Director. The applicant was then cross-examined by the Director.
Both parties tendered various documents.
The applicant gave evidence about the events on and leading up to 19 June 2001. He said that about three weeks beforehand W drove a four wheel drive vehicle into V’s workshop to be re-sprayed. The applicant drove W’s vehicle into the workshop at the same time and W drove it out of the workshop with the applicant as passenger. The applicant and V, who had not previously met, greeted each other but did not engage in conversation. On 19 June 2001, the applicant and W returned to V’s workshop to retrieve the four wheel drive vehicle. W drove away. V, who was driving a forklift, saw the applicant, stopped the forklift, picked up an iron bar from the forklift’s skip and approached the applicant. The applicant tripped and fell. V brought the steel bar down towards the applicant’s legs. The applicant reached into his pocket for the Margolin pistol and fired, the bullet passing through V’s arm into his leg. A second bullet passed into V’s other leg, this discharge being due to the applicant’s elbow hitting the ground.[54]
[54] Appeal Transcript 31/7-34/13.
The applicant gave evidence that on the morning of 6 July 2001 he had a discussion off the record with Detectives Merrett and Yeomans. He told them about the events on 19 June 2001 as set out in the previous paragraph except that he omitted any reference to W. The detectives told the applicant that V had not been really cooperative and they did not believe that he would give evidence against the applicant or that the attempted murder charge would ultimately proceed. It was agreed that the applicant be formally interviewed and make admissions to some less serious offences but would make no comment to questions about the shooting on 19 June 2001.[55]
[55] Appeal Transcript 274/12-279/24; 284/1-8.
The applicant gave evidence that he did not do the Black Forest shooting of the blue Commodore on 16 June 2001 but admitted to doing it to Detectives Merrett and Yeomans on 6 July 2001 to protect his associates and in the belief it was not a serious charge. He gave evidence that he did not have the Margolin pistol until just before he entered V’s premises on 19 June 2001 and did not have it again until 30 June 2001 when it was brought by W into the motel room.
The applicant gave evidence that during one of his early meetings with Mr Noblett he told Mr Noblett that on 6 July 2001 he had an off the record discussion with the detectives in which various offences were discussed and it was agreed that during a formal record of interview he would make admissions to lesser offences but not to shooting V on 19 June 2001. He told Mr Noblett that what occurred on 19 June 2001 was not attempted murder. He told Mr Noblett about V’s background and that he did not believe that V would give evidence against him. He believed that he could not say outright to Mr Noblett that he had shot V but he hinted this without actually saying it.[56] He said that he may have referred to self defence but could not say that he did.[57]
[56] Appeal Transcript 273/13-274/4; 282/1-13.
[57] Appeal Transcript 273/35-38.
The applicant gave evidence that Mr Noblett introduced him to Mr Ibbotson at Yatala. After that, he met with Mr Ibbotson alone on approximately three occasions. On one of those occasions, he told Mr Ibbotson about V’s background and that he did not believe that V would give evidence against him. He told Mr Ibbotson that he had been asked for $60,000 compensation for V. He told Mr Ibbotson that it was not attempted murder.[58]
[58] Appeal Transcript 287/7-27.
The applicant gave evidence that on one of the occasions when he met with Mr Ibbotson alone he would have raised or possibly raised with Mr Ibbotson the possibility of a guilty plea to a lesser charge with agreed facts but Mr Ibbotson did not take it up.[59]
[59] Appeal Transcript 297/4-298/25.
The applicant gave evidence that, when the Director changed the charge shortly before trial to wounding with intent to do grievous bodily harm, he was advised by Mr Ibbotson that the change should be opposed and admission of evidence of the interviews with the police on 6 July 2001 should be opposed.[60]
[60] Appeal Transcript 288/9-289/21.
The applicant gave evidence that after the prosecution closed its case and before the jury’s verdict Mr Ibbotson advised him that there should be an appeal against any conviction and that Mr Ibbotson proceeded with the appeal on this basis.[61]
[61] Appeal Transcript 309/19-310/19.
The applicant gave evidence that when the Court of Criminal Appeal dismissed his appeal Mr Ibbotson said that it should be taken to the High Court.[62]
[62] Appeal Transcript 310/20-33.
The applicant gave evidence that he believed that there would be an appeal to the High Court but this was awaiting a finding in a coronial inquest into Detective Merrett’s death.[63] He was also waiting for the emotions associated with the case, and in particular with Detective Merrett’s suicide, to die down.[64]
[63] Appeal Transcript 8/1-12; 11/1-32; 311/27-32.
[64] Appeal Transcript 37/17-38/5; 310/38-311/8; 312/27-313/6.
The applicant gave evidence that he did not seek to put forward his account of what occurred on 19 June 2001 during sentencing submissions before the Supreme Court Judge in 2005 because he believed it would compromise an appeal to the High Court in respect of his conviction. If he had been advised by Mr Ibbotson before sentencing submissions that a High Court appeal was hopeless and had accepted that advice and given up on any idea of an appeal, he would have provided his account of what happened to the sentencing Judge.[65]
[65] Appeal Transcript 312/10-26; 315/13-28; 318/1-319/38.
The applicant gave evidence that he believed that an appeal against sentence would not be pursued until the High Court appeal against conviction had been determined.[66]
[66] Appeal Transcript 311/27-312/17.
The applicant gave evidence that in about 2010 he gave up on the prospect of a High Court appeal. He did not take steps then to seek to appeal against the sentences because he was devastated, did not know what to do and did not think about appealing against the sentences. He was prompted to seek to appeal against the sentences in February 2014 when he was given the 3 June 2005 sentencing remarks in connection with the sentencing in the District Court for the attempt to escape prison charge.[67]
[67] Appeal Transcript 16/33-17/17; 18/29-19/36; 317/10-27.
Mr Noblett gave evidence that he adopts a general practice when preparing for trial. His priority is to ensure that he and counsel and his client have all of the materials from the prosecution, the prosecution case is fully analysed by counsel for its strengths and weaknesses and his client understands the prosecution case, its strengths and weaknesses. His general practice is to defer taking instructions from his client on the factual circumstances until he reaches that position. When there is continuing disclosure of materials by the prosecution up to the eve of the trial, this might result in deferring taking instructions on the factual circumstances until just before trial.[68]
[68] Appeal Transcript 155/6-25.
Mr Noblett gave evidence that once a client provides instructions on the factual circumstances, it might result in ethical constraints upon counsel as to counsel’s conduct of the trial. For example, if the client admits guilt, it would constrain counsel to conduct a negative as opposed to affirmative case. If the client later wishes to give evidence contrary to the factual instructions provided, it could result in the solicitor and counsel having to cease to represent the client.[69]
[69] Appeal Transcript 158/3-15; 160/22-29.
Mr Noblett gave evidence that these constraints result in counsel generally being reluctant to see a factual account obtained from the client earlier than necessary and in general taking instructions on the factual circumstances is deferred as late as possible consistently with obligations arising from the rule in Browne v Dunn.[70]
[70] (1893) 6 R 67; Appeal Transcript 158/18-159/23.
Mr Noblett gave evidence that in general terms these considerations result in there being a delicacy in communications with clients to ensure that clients do not provide factual instructions earlier than necessary.[71] He distinguished between instructions and general discussions. Instructions are the subject of notes by the solicitor or counsel, are typed and usually signed by the client. They are addressed formally. General discussions are not the subject of notes and might be more or less indirect and elliptical. They are informal and are treated differently to instructions.[72]
[71] Appeal Transcript 155/26-156/8; 158/17-36-38; 159/17-32
[72] Appeal Transcript 155/29-37..
The applicant asked Mr Noblett in cross-examination “do you recall any conversation between ourselves along the lines of ‘it wasn’t attempted murder, [V] attempted to take my head off. It was self defence’?” Mr Noblet answered that he did not independently recall this but accepted that it was possible that the applicant said words to this effect to him.[73] Mr Noblett said that he believed that the applicant did seek to convey to him his version of the events which gave rise to the attempted murder charge during an informal discussion and he would not have made a written record of it at that point in time.[74]
[73] Appeal Transcript 82/27-33.
[74] Appeal Transcript 155/26-156/15.
Mr Noblett gave evidence that he does not have an independent recollection but it is quite possible that the applicant raised the possibility of pleading guilty to a lesser charge than attempted murder. Mr Noblett expected that in the particular circumstances of the case there would have been discussion about an alternative resolution of the case.[75]
[75] Appeal Transcript 87/9-23.
Mr Noblett gave evidence that when the Director withdrew the attempted murder charge and substituted the shooting charge within days before trial, Mr Ibbotson was outraged, frustrated and upset.[76] Mr Ibbotson was also frustrated and upset about the late disclosure of witness statements and documents.[77]
[76] Appeal Transcript 89/4-13; 119/1-30.
[77] Appeal Transcript 119/1-30.
Mr Noblett gave evidence that Mr Ibbotson devised the strategy for the trial and it essentially involved putting the prosecution to proof.[78] Mr Ibbotson generally was responsible for dealing with the case including the applications for permanent stays.[79] Mr Ibbotson advised that the applicant had reasonable prospects of an acquittal at trial.[80]
[78] Appeal Transcript 82/21-25; 83/34-84/21; 115/1- 8.
[79] Appeal Transcript 83/34-84/3.
[80] Appeal Transcript 119/1-30.
Mr Noblett gave evidence that he was aware that the applicant made admissions to the shootings to Detective Merrett during a discussion connected to the record of interview.[81]
[81] Appeal Transcript 87/30-33.
Mr Noblett gave evidence that after Detective Merrett’s suicide the atmosphere in the courtroom was tense and the relationship between Mr Pearce and Mr Ibbotson became frosty.[82] He expected that there would be an inquest into Detective Merrett’s suicide and he discussed this with the applicant and probably with Mr Ibbotson. It was anticipated that an inquest might assist the applicant’s case.[83]
[82] Appeal Transcript 94/30-95/27.
[83] Appeal Transcript 97/29-98/28.
Mr Noblett gave evidence that in December 2002 when there were discussions with the applicant about whether he would give evidence a narrative of what he would say in evidence had not been prepared.[84] Mr Ibbotson advised the applicant around 6 December 2002 that if he gave evidence it would adversely affect an appeal.[85] The applicant was keen to give evidence and it took some convincing from Mr Ibbotson to persuade him to accept advice not to give evidence.[86]
[84] Appeal Transcript 134/21-29.
[85] Appeal Transcript 143/4-9.
[86] Appeal Transcript 142/29-143/9.
Mr Noblett gave evidence that after the conviction Mr Ibbotson advised that an appeal against conviction should be pursued.
Mr Noblett gave evidence that in December 2004, when the appeal to the Court of Criminal Appeal was dismissed, there were discussions with Mr Ibbotson and the applicant about applying to the High Court for special leave to appeal. Mr Noblett asked Mr Ibbotson to provide advice on applying to the High Court but Mr Ibbotson did not ever give him a substantive response.[87] The question of an appeal to the High Court was allowed to drift and there was no point at which a decision was made not to pursue it or at which the applicant was advised that it would not be pursued.
[87] Appeal transcript 104/10-105/12.
Mr Ibbotson gave evidence that he no longer has any documents or records relating to the matters in which he represented the applicant. He gave evidence from his recollection.[88]
[88] Appeal Transcript 177/24-31.
Mr Ibbotson gave evidence that his general practice was to prepare a set of formal written instructions from a client allowing for yes or no alternatives for the client to circle one or other alternative as to the factual elements of the offence and the prosecution case. His general practice was to do this shortly before the commencement of trial.[89]
[89] Appeal Transcript 188/35-190/23.
Mr Ibbotson gave evidence that his general practice was that, if an issue arose during trial that required instructions such as whether the client was to give evidence, he would give advice to the client and obtain written signed instructions. Usually, he would rely on the earlier signed instructions in giving that advice rather than taking further instructions about the evidence the client would give.[90] However, if the client elected to give evidence, there would then be a more detailed proofing done.[91]
[90] Appeal Transcript 192/2-34.
[91] Appeal Transcript 194/34-168/17.
Mr Ibbotson gave evidence that he did not follow a practice of exercising discretion in taking instructions from clients concerning the factual circumstances but preferred to get it all out in the open and see where the cards fell.[92]
[92] Appeal Transcript 194/13-29.
Mr Ibbotson gave evidence that the applicant told him that W would not give evidence against him. Mr Ibbotson denied that the applicant told him that V would not give evidence against him because Mr Ibbotson did not know the applicant knew V.[93]
[93] Appeal Transcript 199/3-38; 239/35-38.
Mr Ibbotson denied that the applicant told him that V had asked him for $60,000.[94] He denied that the applicant told him that it was not attempted murder and that V had attempted to decapitate him with a steel bar because, if this had occurred, he would have explored whether self defence was available.[95]
[94] Appeal Transcript 200/1-11.
[95] Appeal Transcript 202/2-26.
Mr Ibbotson gave evidence that when the Director changed the charge from attempted murder to wounding with intent to do grievous bodily harm he gave some advice in conjunction with Mr Noblett to the applicant but he does not now recall what that advice was.[96]
[96] Appeal Transcript 177/32-178/36.
Mr Ibbotson gave evidence that he did not believe that after the charge was downgraded the applicant told him that he would be prepared to plead guilty to the shooting offence with agreed facts because, if he had, there would have been draft agreed facts prepared and there would have been an instruction in writing signed by the applicant to that effect.[97]
[97] Appeal Transcript 243/16-23.
Mr Ibbotson gave evidence that he believed at the time that the outcome of any inquest into Detective Merrett’s suicide would have been relevant to the issues on the wounding charge and this was discussed with the applicant and Mr Noblett.[98]
[98] Appeal Transcript 185/28-38; 187/14-21; 187/35-188-7.
Mr Ibbotson gave evidence initially that he did not recall discussing with the applicant at any time about a High Court appeal. He said that there were no grounds for a High Court appeal.[99] He later said that there may have been discussion about whether there were grounds for an appeal to the High Court during the voir dire hearing or when the applications for a permanent stay were refused or when considering the grounds of appeal to the Court of Criminal Appeal following conviction.[100] However, he said that when the Court of Criminal Appeal dismissed the appeal there was no basis to appeal to the High Court and he told the applicant this.[101] He did not recall discussing the topic of an appeal to the High Court with Mr Noblett.[102]
[99] Appeal Transcript 185/14-27.
[100] Appeal Transcript 186/4-187/13.
[101] Appeal Transcript 209/34-210/15; 245/34-246/21.
[102] Appeal Transcript 219/26-33.
Mr Ibbotson gave evidence that he did not have a recollection of giving to the applicant the summary of prosecution evidence and did not know of his own knowledge whether it was given to the applicant but assumed it was given to him by Mr Noblett.[103] He did not receive instructions from the applicant to disagree with the summary or to agree with it.[104] He accepted that, if the applicant had read it, he probably would not have agreed with it.[105]
[103] Appeal Transcript 204/32-205/3.
[104] Appeal Transcript 206/29-207/17.
[105] Appeal Transcript 207/8-17.
Mr Ibbotson gave evidence that he addressed the jury in 2002 on the topic of whether there were two or three bullets fired. However, he did not take issue with the summary of prosecution evidence in this respect in 2005 because he took the view that it was open to the sentencing Judge to make a finding in accordance with the prosecution case.[106]
[106] Appeal Transcript 229/3-27.
Mr Ibbotson gave evidence that his dealings with the applicant finished once the sentencing finished and he had nothing more to do with the applicant from that time.[107]
[107] Appeal Transcript 187/25-33.
There are several factual issues that arise on the evidence that I do not resolve in this judgment as they will need to be determined by the Court of Criminal Appeal on the hearing of the applications for permission and an extension of time or the appeal itself if those applications are granted.
The first factual issue is the difference between the evidence given by Mr Noblett and Mr Ibbotson whether obtaining factual instructions was approached with delicacy as opposed to simply getting it all out in the open as soon as possible. Without forming any view whether a finding should be made that the matter was approached with delicacy, it cannot be dismissed as untenable because the only record of instructions by the applicant to Mr Noblett or Mr Ibbotson is on the formal occasions at the start of the trial and when deciding whether the applicant would give evidence.
The second factual issue is whether it was V or W of whom the applicant told Mr Ibbotson would not give evidence against him. Without forming any view whether a finding should be made that it was V and not W in accordance with the applicant’s evidence, it cannot be dismissed as untenable because Detective Merrett gave evidence on the voir dire that the applicant told him that he believed V would not give evidence and because there was no suggestion by the prosecution that W would be called as a witness until the last day before trial.
The third factual issue is whether the applicant conveyed in an elliptical way to Mr Noblett that he might be prepared to accept that he shot V but that the circumstances were different to the prosecution case, that it was not attempted murder and that he might be prepared to consider a guilty plea to a lesser charge based on agreed facts. Without forming any view whether such a finding should be made, it cannot be dismissed as untenable for several reasons. Mr Noblett in his evidence accepted that, while he did not recall it, it was quite possible. Mr Noblett gave evidence that he discouraged clients from conveying definitive instructions too early but clients tended to communicate with him in a delicate manner and this accords with the applicant’s evidence. The applicant had in the past always admitted offences he committed The applicant admitted to Detectives Merrett and Yeomans that he shot V. The applicant elliptically admitted to Mr Holmes in June 2003 that he shot V and told Mr Holmes that the circumstances were different to the prosecution case when he had a similar ostensible reason not to make an outright admission given his appeal against conviction then on foot.
The fourth factual issue is whether the applicant conveyed in an elliptical way to Mr Ibbotson that he might be prepared to accept that he shot V but that the circumstances were different to the prosecution case and that it was not attempted murder. Without forming any view whether such a finding should be made, it cannot be dismissed as untenable for several reasons. The reasons why it is not untenable that the applicant said it to Mr Noblett generally apply also to Mr Ibbotson. There is no obvious reason why the applicant would say it to Mr Noblett but not to Mr Ibbotson. There is no other apparent explanation for Mr Ibbotson having told the sentencing Judge in October 2003 that he was instructed to seek deferral of sentencing until after the conviction appeal because, depending what happens in the appeal, would depend on whether the applicant would be called as a witness in his sentencing procedures.
The fifth factual issue is whether the applicant received the summary of prosecution evidence in February 2005. Without forming any view whether a finding should be made that the applicant did not receive it, it cannot be dismissed as untenable for several reasons. Mr Ibbotson did not have a recollection of providing it to the applicant and thought that was rather Mr Noblett’s role. Mr Noblett did not provide it to the applicant. Mr Ibbotson accepted that, if the applicant had read it, he probably would not have agreed with it. The applicant did not provide instructions to Mr Ibbotson that he agreed with or did not challenge it nor did he provide instructions that he disagreed with it. While Mr Ibbotson told the Judge on 23 February 2005 that he had handed the applicant a copy of it that day, it is not clear whether the applicant was present in court at the time and the applicant gave evidence that he did not in fact receive it.
Criteria for permission and extension of time to appeal
The criterion for the grant of permission to appeal is whether the ground or grounds of appeal are reasonably arguable.[108] It operates as a filter of unmeritorious cases.[109]
[108] R v Parenzee[2007] SASC 316; (2007) 101 SASR 456 at [22] per Doyle CJ (with whom Anderson and Kelly JJ agreed).
[109] Coulter v The Queen (1988) 164 CLR 350 at 356 per Mason CJ, Wilson and Brennan JJ and 359 per Deane and Gaudron JJ.
In Coulter v The Queen,[110] Mason CJ, Wilson and Brennan JJ said:
The jurisdiction which the Court exercises in determining an application for leave is not a proceeding in the ordinary course of litigation. It is a preliminary procedure recognized by the legislature as a means of enabling the Court to control in some measure the volume of appellate work requiring its attention. Oral argument is a valuable aid to adjudication in some cases but an application may be so patently meritorious or unmeritorious that oral argument would be an unnecessary occupation of the court's time.[111]
[110] (1988) 164 CLR 350.
[111] At 356. (Citation omitted)
In R v Parenzee,[112] Doyle CJ (with whom Anderson and Kelly JJ agreed) said:
The longstanding practice of the CCA is to grant permission to appeal against conviction if the proposed ground of appeal is reasonably arguable. Permission to appeal is usually refused if the ground is not reasonably arguable, or is found to lack any substance, or to have no reasonable prospect of success. Once again, each of these formulations is only a slightly different way of identifying the central issue of whether the proposed ground of appeal has a sufficient prospect of success to warrant the grant of permission to appeal. In other than exceptional cases permission to appeal should not be granted to enable an appellant to pursue grounds of appeal that have no prospect of success.[113]
[112] [2007] [2007] SASC 316; (2007) 101 SASR 456.
[113] At [22].
The criteria for the grant of an extension of time in which to appeal are more complex.
In R v Tait,[114] McMurdo P, Thomas JA and Cullinane J said:
…the Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension. That may involve some assessment of whether the appeal seems to be a viable one. It is not to be expected that in all such cases the Court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the Court will often find it appropriate to make some provisional assessment of the strength of the applicant's appeal, and take that into account in deciding whether it is a fit case for granting the extension. Other factors include prejudice to the respondent, but in the case of criminal appeals this is not often a live issue. Another factor is the length of the delay, it being much easier to excuse a short than a long delay.[115]
[114] [1998] QCA 304, [1999] 2 Qd R 667.
[115] At [5]. (Footnote omitted)
In R v Fyfe,[116] Doyle CJ (with whom Perry and Vanstone J agreed) said:
In considering whether to extend time the Court has to consider the length of the delay, the reasons for the delay, and whether the grounds for appeal disclose matters that suggest that an extension of time should be granted. In other words, the Court has to give some consideration to the merits of the proposed appeal.[117]
[116] [2004] SASC 391.
[117] At [10].
In Police v Warren,[118] Gray J summarised the principles on an application to extend time to appeal:
[118] [2000] SASC 285.
The following rules guide the court in considering an application to extend time:
(1) The discretion exists for the sole purpose of doing justice between the parties.
(2) Some material must be advanced upon which the court can exercise its discretion.
(3) There is an obligation to explain with frankness and candour the reason for delay.
(4) The longer the delay the more exceptional or substantial the explanation required.
(5) If no sufficient grounds of appeal are disclosed an extension will not be granted.
(6) The court is not obliged to consider the merits in detail.
(7) The court will consider whether any substantial grounds exists for apprehending a miscarriage of justice.
(8) Absent satisfactory explanation about delay an applicant is still entitled to an extension if otherwise there will be a miscarriage of justice.
The above rules are subservient to the overriding principle that the court should grant of extension of time to avoid a miscarriage of justice.[119]
[119] At [16]-[17]. (Footnotes omitted)
Non-parole period
I first address the applicant’s ground of appeal common to both sentences that the non-parole periods were manifestly excessive.
Permission to appeal: non-parole period fixed in April 2004
The applicant contends that the non-parole period fixed by the District Court Judge on 30 April 2004 of nine years and seven months was manifestly excessive. The applicant makes three interrelated contentions. First, the Judge did not take into account his time spent in custody of two years and seven months between September 2001 and April 2004. Secondly, the Judge did not take into account the original length of the 1988 and 1991 sentences and the fact that he had served 12½ years of those sentences between July 1987 and December 1999. Thirdly, the non-parole period was manifestly excessive in absolute terms and as a proportion of the total head sentences.
When a defendant who falls to be sentenced to imprisonment has spent time in custody before being sentenced, alternative methods can be adopted to recognise that time in fashioning an appropriate sentence. The sentence can be backdated to commence when the defendant was taken into custody. Alternatively, the time spent in custody can be deducted from the term of imprisonment that would otherwise have been imposed. At least in cases in which the period of custody has been continuous and even in some cases in which it has been discontinuous, the former alternative is preferable because it gives a true indication of the sentence imposed and avoids the risk that periods of custody will in future be overlooked or misunderstood.[120]
[120] R v McHugh (1985) 1 NSWLR 588 at 590-591 per Street CJ (with whom Hunt J and Enderby J agreed); R v Newman [2004] NSWCCA 102, (2004) 145 A Crim R 361 at [27], [29], [30], [32] per Howie J (with whom McColl JA agreed); R v Tilley [2010] SASCFC 73 at [23]-[24] per Duggan J (with whom Anderson J and Peek J agreed).
If the District Court Judge had adopted the former alternative, the applicant would have been sentenced to imprisonment for four years and three months cumulatively upon the balance of the pre-existing sentences totalling 10 years, four months and nine days. This would have resulted in total head sentences of 14 years, seven months and nine days and a non-parole period of 12 years and two months, both commencing on 27 September 2001. The ratio of non-parole period to total head sentences would have been 83 percent.[121] The maximum period on parole would have been approximately two years and five months.
[121] Rounded to the nearest whole percentage.
There can be no suggestion of error per se by the Judge in adopting the latter alternative of deducting time spent in custody rather than backdating the sentence and the Judge may have considered that this was preferable or even necessary in the particular circumstances. However, whenever the latter alternative is adopted, for the reasons given above it is essential that the length of the non-parole period be considered on the hypothetical assumption that the former alternative had been adopted so as to avoid distortion. It is reasonably arguable that the Judge did not do this.
The ratio of non-parole period to head sentence of 83 percent referred to above does not take into account the fact that the applicant had already served approximately 11 years and six months of his pre-existing sentences in addition to the balance yet to be served. If that period were also taken into account, it would result in a higher ratio of non-parole period to total head sentences.
In fixing the non-parole period, it was appropriate for the Judge to take into account that by the May 2001 offending for which he was to be sentenced the applicant had breached the conditions of his parole. However, the position might be compared with the approach of Duggan J who sentenced the applicant in August 1991 in analogous circumstances in which the applicant had escaped from prison and committed a series of offences when he should have been in prison. Duggan J fixed a non-parole period being the modern equivalent of 12 years and eight months in respect of head sentences being the modern equivalent of 24 years and eight months. The ratio of non-parole period to head sentences was just over 50 percent.
By 2001, the applicant was 10 years older than in 1991 and had committed the May 2001 offences in breach of parole and in the circumstances a non-parole ratio in excess of 50 percent was called for. However, given that he had spent the vast majority of his adult life in custody, a substantial period of supervision under conditions on parole was in the interests of the community.
In the circumstances, it is reasonably arguable that the non-parole period fixed by the District Court Judge was manifestly excessive and resulted from the Judge overlooking the very lengthy periods spent in custody before 30 April 2004, being the date on which the sentence imposed by the Judge commenced. Apart from the applicant needing an extension of time in which to appeal, the criterion for permission to appeal is satisfied.
Permission to appeal: non-parole period fixed in June 2005
The applicant contends that the non-parole period of 17 years and seven months from 30 April 2004 fixed by the Judge of this Court on 3 June 2005 was manifestly excessive. The applicant makes the same contentions as in respect of the non-parole period fixed by the District Court Judge on 30 April 2004. The applicant contends that the Judge of this Court perpetuated errors made by the District Court Judge by adopting a starting point of nine years and seven months and extending that period by eight years.
Considered in isolation, the Judge extended the non-parole period by eight years upon imposing a head sentence of imprisonment for 12 years in respect of the May 2001 offending. This represents a ratio of non-parole period to additional head sentence of 67 percent. However, section 32(1)(b) of the Criminal Law (Sentencing) Act 1988 (SA) requires a court when sentencing a person subject to an existing non-parole period to review that period and extend it by such period as the court thinks fit rather than fixing an independent non-parole period for the new head sentence.
On the assumption that the head sentences and non-parole period had been backdated to 27 September 2001 in accordance with the former approach identified at [134] above, the non-parole period fixed by the Judge would have been 20 years and two months in respect of total head sentences of imprisonment for 26 years, seven months and nine days. This is a ratio of 76 percent.
The applicant’s non-parole period is not due to expire until November 2021. As at June 2005, when he was sentenced, the applicant was 42 years old. Any non-parole period fixed was liable to entail that the applicant would not become eligible for parole until he was in his fifties. When he was 42 years old, it was inherently difficult to predict what type of person he would be in his fifties. This was particularly so given Mr Holmes’ expression of opinion that he had developed an antisocial personality disorder as a result of his upbringing in the first two decades of his life and such disorders usually begin to wane by the fourth decade of life as a result of ongoing maturational processes and anti-social burnout.
In the circumstances, it is reasonably arguable that the non-parole period fixed by the Judge of this Court was manifestly excessive. Apart from the applicant needing an extension of time in which to appeal, the criterion for permission to appeal is satisfied.
Extension of time to appeal
Unlike some other grounds upon which the applicant seeks to appeal, this ground is to be considered on the face of the materials before the sentencing Judges. No issue of prejudice or potential prejudice to the Director arises. While the issue of prejudice is only one of several factors to be considered in the exercise of the discretion, it can be put aside in respect of this ground.
An important factor in the exercise of the discretion is whether the ground is reasonably arguable. I have concluded that, leaving aside the lateness of the application, the criterion for permission to appeal is satisfied in respect of this ground.
Other important factors are the length and reason for the delay in seeking permission to appeal. Mr Noblett gave evidence that the applicant expressed his wish to appeal, that he left it in the hands of Mr Noblett and Mr Ibbotson, that the reason no application for permission to appeal was lodged within 21 days was a lack of response by Mr Ibbotson to Mr Noblett about grounds of appeal and the question of an appeal against sentence then drifted without any active decision being made not to appeal.
The question what was an appropriate non-parole period to be fixed by the District Court Judge and then by the Supreme Court Judge was a very complex one due to the pre-existing sentences imposed in 1988 and 1991 that had not yet expired, the complex changes to those sentences effected by the 1994 and 1995 truth in sentencing legislation, the applicant being in custody from 30 June 2001 in different capacities but not being sentenced until May 2004 and June 2005 respectively, the applicant being sentenced first for the May 2001 offences although he had been in custody on remand in connection with the June 2001 offences, the District Court Judge being obliged to make the new sentence cumulative upon the pre-existing sentences, the District Court Judge taking into account time in custody since September 2001 but not backdating the sentence imposed and the Supreme Court Judge being obliged to make a new sentence cumulative upon the pre-existing sentences. Elucidating these matters on the hearing of the applicant’s application for an extension of time required extensive consideration. As a layperson, the applicant could not be expected to understand the objective reasons why it is reasonably arguable, as I have concluded, that the non-parole periods fixed successively by the District Court Judge and Supreme Court Judge are manifestly excessive until the hearing of this application.
While the length of the delay is very great, under the sentences against which the applicant seeks to appeal he is still not eligible for release on parole until November 2021 which is still more than six years hence. If the Court considers that permission to appeal should be granted on this ground, the Director does not oppose the grant of an extension of time on this ground.[122]
[122] Appeal Transcript 326/9-16.
Taking into account the above factors and ultimately whether it is in the interests of justice to grant an extension, I am satisfied that I should exercise my discretion to grant an extension of time for the application for permission to appeal and grant permission to appeal on the ground that the non-parole periods fixed successively by the District Court Judge and Supreme Court Judge are manifestly excessive. Because the non-parole period fixed by the Supreme Court Judge superseded the non-parole period fixed by the District Court Judge, it is not strictly necessary for the applicant to appeal against the latter. However, if the matter is to proceed, it is preferable that the Court of Criminal Appeal considers both matters because the Supreme Court Judge fixed the non-parole period against the historical background that the District Court Judge had earlier fixed the non-parole period.
Incorrect factual basis: failure to adduce evidence
I next address the applicant’s ground of appeal that he was sentenced on an incorrect factual basis because his lawyers failed to adduce evidence from him on sentencing submissions as to the factual circumstances of the offence.
Mr Ibbotson gave categorical evidence that in his own mind when the Court of Criminal Appeal dismissed the applicant’s conviction appeal there was no basis to appeal to the High Court, there were no grounds of appeal available and he never contemplated making an application for special leave to appeal.
However, Mr Noblett gave evidence that Mr Ibbotson did not convey this to him or the applicant and that he was awaiting advice from Mr Ibbotson which he never received. Mr Noblett gave evidence that, after the dismissal of the applicant’s appeal against conviction, he had discussions with the applicant and Mr Ibbotson about an application for special leave to appeal to the High Court.[123] Mr Noblett said that it was clear between Mr Ibbotson and himself that Mr Ibbotson was to provide advice about the prospects of obtaining special leave to appeal from the High Court but to the best of his recollection he never received that advice.[124] There is no reason to doubt that the applicant believed in April and May 2005 that an appeal to the High Court might be pursued.
[123] Appeal Transcript 101/18-26
[124] Appeal Transcript 123/6-124/7.
There is no reason to doubt that, if the applicant had been advised that there was to be no such application, he would have sought to put forward his own account of what occurred on 19 June 2001 during sentencing submissions. Both the account he gave to Mr Holmes in June 2003 (albeit highly qualified because of the extant appeal) and his instructions to Mr Ibbotson conveyed to the sentencing Judge on 31 October 2003 demonstrate this.
There is no reason to doubt that, if the applicant had sought to put forward his own account, it would have been that he attended at the workshop, was confronted by V holding an iron bar, V came at him, he was in possession of a pistol, he produced the pistol and shot V in the legs. Detective Merrett gave evidence on the voir dire in September 2002 that this was what the applicant said during the off the record discussion on 6 July 2001 and the applicant effectively admitted to Mr Holmes that he shot V, saying that there was no deliberate plan to shoot anybody and he found himself being sentenced as the prosecution case portrayed it which was not accurate. This was also the effect of the applicant’s sworn evidence on the application before me.
Leaving aside issues of delay and permission to appeal, the ultimate test to be applied by the Court of Criminal Appeal in determining whether the applicant should be permitted to appeal against the sentence on this ground is whether otherwise there would be a miscarriage of justice. In considering that question, it would be important to consider whether the failure of the applicant to advance his own factual account was the result of imprudent or inappropriate advice or lack of advice in breach of duty by his solicitor or counsel. The position is very broadly analogous to an application for permission to appeal against a conviction when a guilty plea has been entered and the applicant contends that it was entered as a result of imprudent or inappropriate advice or lack of advice by his solicitor or counsel.[125]
[125] See, for example, R v Wilkes [2001] NSWCCA 97 at [18]-[20] per Wood CJ at CL (with whom Giles and Simpson JJ agreed); R v Pugh [2005] SASC 427 at [13] per Doyle CJ, [110] per Bleby J and [202]-[203] per Gray J.
It is reasonably arguable that Mr Ibbotson breached his duty in failing to advise the applicant about advancing on sentencing submissions different factual circumstances to those arising on the prosecution evidence. By way of context, counsel in Mr Ibbotson’s position must have known that, regardless of admissible evidence, objectively there was a high likelihood that the applicant shot V having regard to:
1.the (inadmissible) evidence of the applicant’s admission to the Black Forest shooting during the formal interview on 6 July 2001,
2.the (inadmissible) evidence by Detectives Merrett and Yeomans of the applicant’s admission to the Lonsdale shooting on 6 July 2001,
3.the contemporaneous descriptions by two eyewitnesses of the shooter being consistent with the applicant’s appearance, and
4.the note to T saying “I did a drive-by” and the evidence of the Margolin pistol being used on the occasion of the Black Forest drive-by shooting.
Against that background, Mr Ibbotson received and read Mr Holmes’ report recording a further tacit admission in June 2003 by the applicant to being the shooter. Mr Ibbotson discussed with the sentencing Judge in October 2003 the prospect that after the conviction appeal the applicant would give evidence on sentencing submissions about different factual circumstances of the shooting. If, as Mr Ibbotson believed in April 2005, there was no prospect of a successful application for special leave to appeal to the High Court against conviction, there was no reason not to explore the possibility of the applicant giving evidence on sentencing submissions.
Whether there was a miscarriage of justice raises complex considerations beyond merely whether Mr Ibbotson breached his duty as counsel. Those considerations include the fact that the Director might wish to call evidence from V or others on a disputed facts hearing and the general principle of finality.
The question whether permission to appeal on this ground ought to be granted is inextricably intertwined with the question whether an extension of time ought to be granted. One of the considerations whether an extension of time should be granted is the explanation given by the applicant for the very lengthy delay in seeking permission to appeal.
Mr Noblett gave evidence that the applicant was keen to appeal against the sentence imposed in June 2005.[126] Mr Noblett requested Mr Ibbotson to identify specific grounds of appeal that he could put to the Legal Services Commission in support of a request for funding.[127] Mr Noblett did not receive instructions from the applicant not to appeal against sentence.[128]
[126] Appeal Transcript 124/8-28.
[127] Appeal Transcript 124/17-28.
[128] Appeal Transcript 166/33-37.
The applicant’s explanation for the initial failure to seek permission to appeal within the required time is that he was awaiting action by his lawyers in relation to the potential High Court appeal and believed that a sentence appeal would await any such appeal. When he realised that there was not going to be a High Court appeal, he was not focused at that time on a sentence appeal. It was his reading in February 2014 of the sentencing Judge’s June 2005 sentencing remarks that prompted his consideration of seeking permission to appeal against his sentences.
Given the complexity of the considerations, those questions should be referred for hearing and determination by the Court of Criminal Appeal.
Incorrect factual basis: failure to challenge
I next address the applicant’s ground of appeal that he was sentenced on an incorrect factual basis because his lawyers failed to challenge parts of the Director’s summary of prosecution evidence and the victim impact statement or make submissions on implications that might be drawn by the Judge from them.
The applicant contends that Mr Ibbotson should have advised him about challenging and should have challenged:
1.statements in the summary of prosecution evidence and the prosecutor’s sentencing submissions that V was shot three times;
2.statements in the victim impact statement that V closed his business and sold the business premises as a result of the injuries caused by the shooting and this caused him financial loss and that he sold his house as a result of the shooting; and
3.statements in the summary of prosecution evidence and the prosecutor’s sentencing submissions that the applicant told V that he was paid to do a job, was supposed to bash somebody up and shot him instead.
I consider each contention individually before considering the application for permission to appeal and an extension of time on this ground.
Three shots
The summary of prosecution evidence referred to V’s evidence that he was shot three times[129] and the prosecutor drew attention to that evidence in his sentencing submissions.[130] The Judge sentenced the applicant on the basis that he shot V three times.[131]
[129] Exhibit D4 [1] and [2].
[130] Exhibit D3 page 19/20.
[131] Exhibit D29 sentencing remarks [3].
There was a substantial body of evidence suggesting that only two shots were fired. Only two cartridge cases and one bullet were recovered. Six witnesses gave evidence that they heard two bangs or shots.[132] While V was wounded in both legs and an arm, Sergeant Maiden gave evidence in re-examination in answer to a question from Mr Pearce that it is possible that one of the bullets passed through V’s arm and into his leg accounting for two of the three wounds.[133] While two witnesses gave evidence that they heard three bangs or shots,[134] given the evidence of the other six witnesses they may have been inaccurate in what they heard or recalled. At trial, Mr Pearce did not advance an affirmative case that there were three shots.[135]
[132] Exhibit D33 Trial Transcript Brenton Koch T2098/10 “two loud bangs”; Kerrie Koch T2123/19-21 “bang and then another bang…two [bangs]”; Elizabeth Alstrom T2130/36-37 “a couple of like gunshots”; Jacquiline Howkins T2164/38 “couple of bangs”; David Howkins “two noises…appeared to be a starting pistol” T2175/30-32; Tony Baker “two loud bangs” T2271/18.
[133] Exhibit D33 Trial Transcript T4227/16-29.
[134] Exhibit D33 Trial Transcript David Reeves T2139/28; Roy Wade T2153/20.
[135] Mr Ibbotson advanced an affirmative case that there were three shots in support of a contention or speculation that the police wrongfully planted a third cartridge case in the green Commodore.
On the evidence adduced at trial, if Mr Ibbotson had challenged before the sentencing Judge there being more than two shots proved beyond reasonable doubt, it is likely that a reasonable doubt would have arisen.
While the same sentence might still have been imposed on the basis that there were two shots, there is a possibility that the fact that the applicant was sentenced on the basis that there were three shots rather than two influenced the sentence imposed.
Mr Ibbotson as trial counsel was aware of the evidence arguably giving rise to a reasonable doubt that there were three shots. There is no obvious reason for the prosecution statements about three shots not being questioned or challenged. On questioning, the prosecutor may have accepted that there was a reasonable possibility that there were only two shots and on a challenge the sentencing Judge may have accepted this. It is reasonably arguable that Mr Ibbotson breached his duty in failing to advise the applicant about challenging the statement that V was shot three times.
Financial loss by V
In his victim impact statement, V said that he closed his business and sold the business premises as a result of the injuries caused by the shooting and this caused him financial loss and that he also sold his house as a result of the shooting.[136] The Judge sentenced the applicant on the basis that these losses were caused by the shooting.[137]
[136] Exhibit D5.
[137] Exhibit D29 [7], [9].
V did not give evidence at trial of any financial loss caused by the shooting. Dr Liptak gave evidence at trial. He was not asked whether V had any permanent disability. In his witness statement provided on 30 July 2001, he said that V had been last seen in the outpatient department on 11 July 2001, the prognosis was very good, the left thigh femoral fracture should not restrict his outcome at all and he should mobilise well. He said there should not be any residual physical impairment from the wounds to the right thigh and right arm.
Mr Ibbotson was aware of Dr Liptak’s witness statement and the absence of any evidence at trial one way or the other whether V suffered any permanent disability. There is no obvious reason why he did not question the statements in the victim impact statement. If he had done so, it is not known what attitude the prosecutor would have taken or what evidence V would have given if the prosecutor chose to call him as a witness. It is reasonably arguable that Mr Ibbotson breached his duty in failing to advise the applicant about challenging the statements that V closed his business and sold the business premises as a result of the injuries caused by the shooting and this caused him financial loss.
Payment to harm V
The summary of prosecution evidence referred to W’s evidence that he was told by the applicant that he was paid $1,000 to do a job[138] and he was supposed to bash somebody but shot him instead.[139] The prosecutor conflated that evidence in his sentencing submissions, describing it as on any version “a ‘hit’ or a ‘job’ committed on [V]”.[140] The Judge sentenced the applicant on the basis that he shot V for personal gain.[141]
[138] Exhibit D4 [55].
[139] Exhibit D4 [57].
[140] Exhibit D3 page 19/29-20/9.
[141] Exhibit D3 [4] and [6].
Mr Ibbotson was aware of the evidence given at trial by W and of the various statements by him recorded in Detective Merrett’s notes and unsigned and signed witness statements in the name of W. There is no obvious reason why he did not question the prosecutor’s conflation of the two separate items of evidence given by W. It is reasonably arguable that Mr Ibbotson breached his duty in failing to advise the applicant about questioning or challenging this suggestion by the prosecutor.
Permission to appeal and extension of time
Whether permission to appeal should be granted involves more complex issues than merely whether Mr Ibbotson breached his duty by failing to advise the applicant about questioning or challenging the material placed by the prosecution before the sentencing Judge. These include what would have happened if that material had been questioned or challenged, what effect if any this would or may have had on the sentence imposed by the sentencing Judge and whether there has been a miscarriage of justice. The question whether permission to appeal on this ground ought to be granted is inextricably intertwined with the question whether an extension of time ought to be granted. Given the complexity of the considerations, those questions should be referred for hearing and determination by the Court of Criminal Appeal.
Head sentence manifestly excessive
I next address the applicant’s ground of appeal that the head sentence of 12 years was manifestly excessive.
The applicant does not contend that the head sentence in isolation was manifestly excessive on the materials actually before the sentencing Judge which were not challenged by Mr Ibbotson. However, the applicant contends that the sentencing Judge failed to have sufficient regard to the principle of totality in taking into account the combined head sentences imposed in 1988, 1991 and 2004 given that the result was head sentences equivalent to a total of 26 years, seven months and nine days from 27 September 2001.
Given my conclusion that I should refer the questions of permission to appeal and extension of time in respect of the two grounds contending that an incorrect factual basis was before the sentencing Judge as a result of default by the applicant’s lawyers, it is appropriate to refer also those questions in respect of this ground to the Court of Criminal Appeal.
Conclusion
I grant an extension of time and permission to appeal against the non-parole period fixed by the District Court Judge on the ground that it was manifestly excessive.
I grant an extension of time and permission to appeal against the non-parole period fixed by the Supreme Court Judge on the ground that it was manifestly excessive.
I refer to the Court of Criminal Appeal the application for an extension of time and for permission to appeal against the head sentence imposed and the non-parole period fixed by the Supreme Court Judge on the other grounds.
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