R v Young

[1999] NSWCCA 275

CITATION:	R v Young [1999] NSWCCA 275
FILE NUMBER(S):	CCA 60651/98
HEARING DATE(S):	19/7/99, 30/7/99 (Orders made)
JUDGMENT DATE:	9 September 1999
PARTIES :	Regina (Respondent) Jeremy Nathan Young (Appellant)
JUDGMENT OF:	Studdert J at 1; Dunford J at 2; Smart AJ at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/61/0105
LOWER COURT JUDICIAL OFFICER:	Twigg DCJ

COUNSEL:	R.D. Ellis (Crown) C.B. Craigie (Appellant)
SOLICITORS:	S.E. O'Connor (Crown) T.A. Murphy (Appellant)
CATCHWORDS:	Criminal law; application for leave to appeal against sentence; application out of time; subsequent abandonment; leave to withdraw notice of abandonment; relevance of merits of grounds of appeal to exercise of discretion
ACTS CITED:	Criminal Appeal Act
CASES CITED:	Grierson v The King 60 CLR 431 R v Sunderland 28 SR 26 R v Rigby 7 CAR 111 R v Moore 17 CAR 155 R v Lesser 27 CAR 69 R v Lawrence & 6 Ors (1980) 1 NSWLR 122 R v Unger (1977) 2 NSWLR 990 R v O'Donoghue (1987-1988) 34 A Crim R 397 R v Cartwright (1989) 17 NSWLR 243 R v Edward Malcolm Jeffery (unreported, NSWCCA, 16 December 1993) R v Brandy (unreported, NSWCCA, 28 October 1996) R v Coombe (unreported, NSWCCA, 24 April 1997)
DECISION:	See para 53

IN THE COURT OF
CRIMINAL APPEAL

60651/98

STUDDERT J
DUNFORD J
SMART A-J

Thursday 9 September 1999

REGINA v JEREMY NATHAN YOUNG

JUDGMENT

1   STUDDERT J: I agree with Smart A-J.

2   DUNFORD J: I agree with Smart A-J.

3   SMART AJ: Jeremy Nathan Young seeks an extension of time and leave to appeal against the severity of a sentence comprising a minimum term of three years and an additional term of three years for armed robbery committed on 14 April 1997 taking into account the offence of self-administering amphetamines on 13 April 1997. The Crown objected to an extension of time being granted and submitted that the sentence was not excessive. As will appear later the relief granted on the publication of these reasons will need to be reframed.

4   The applications were heard by a bench of two judges on 19 July 1999. It was then directed that it be re-heard before a bench of three judges. On the latter day (30 July 1999) fuller argument was presented on behalf of the applicant. At the conclusion of the hearing on that day the Court ordered that an extension of time be granted to the applicant within which to apply for leave to appeal against the sentence, that leave to appeal be granted, the appeal be allowed, the sentence imposed by Judge Twigg be quashed and that in lieu of the sentence imposed the applicant be sentenced to penal servitude comprising a minimum term of two years six months commencing on 21 April 1997 and ending on 20 October 1999 and an additional term of two years commencing on 21 October 1999. This Court also took into account the offence of self-administering amphetamines on 13 April 1997 and found that there were special circumstances warranting a longer than usual additional term. I now state my reasons for participating in those orders.

5   The current applications for an extension of time and leave to appeal bearing date 28 October 1998 were received in the Registry on the following day. An earlier application bore date 10 September 1997. This should probably be 10 October 1997 as the sentences were imposed on 12 September 1997. This application was received by the registry on 29 October 1997. While the application was signed within time it was not received within time in the registry. An application for legal aid was received on 20 October 1997. A Notice of Abandonment of the earlier application was filed on 27 November 1997 and noted by the Registrar on 15 December 1997. It is convenient to consider the twin hurdles of an extension of time and the filing of a Notice of Abandonment together.

6   The applicant in his affidavit of 29 July 1999 stated that he wanted to stay at Broken Hill where he had been held in gaol and was sentenced, to be near his family. The applicant explained that because he had already been in custody on remand he was classified C1 immediately after he was sentenced. After lodging his application the applicant spoke to the Gaol Governor who stated that the applicant would not be able to obtain his C2 classification until after his application for leave to appeal had been heard. This meant that there would also be delay in obtaining a C3 classification which would allow him to be given weekend leave to be with his family.

7   The applicant stated that he telephoned the Legal Aid Commission and spoke to a solicitor who told him that his application for leave to appeal should not affect his classification. The applicant's solicitor has confirmed that telephone call. She has stated that the applicant said that the gaol authorities had told him that he would not be classified C2 and would not be able to stay at Broken Hill unless he "pulled" the appeal. She gave him certain advice. He said "It's causing my wife stress, I'm going to 'pull' the appeal."

8   After his conversation with the solicitor, the applicant again spoke to the Governor and told him what she had said. The Governor replied that the applicant could not have any further classification while he was an applicant. The Deputy Governor said that a lower classification was at the Governor's discretion. The applicant stated:

"I believed that the Governor of the gaol had the power to decide whether I was given a C2 classification and that if he didn't want to do it, he wouldn't. I also believed that he had the power to transfer me to Sydney and that he might do this unless I abandoned the appeal. My mother and my de facto wife and child were all in Broken Hill. I did not want to be transferred away from them."

9   In abandoning his appeal, the applicant still believed that his sentence was too harsh. In April 1998 he spoke with Mr Kingston, the solicitor who had appeared for him at the sentence hearing. The applicant apparently told Mr Kingston that he wanted to proceed with his appeal. Mr Kingston relayed this to an officer of the Legal Aid Commission.

10   In September 1998 the applicant was transferred to Bathurst Gaol. He said that he decided to lodge his appeal again as he still believed that his sentence was too long. He was still hoping to be transferred back to Broken Hill Gaol.

11   There was a period when appellants and applicants complained to this Court that they could not obtain an appropriate classification until after any appeal or application for leave to appeal against sentence had been determined. This approach seemed to cause problems. As far as I am aware such an approach is no longer taken. Of course, classification should not be held up pending the outcome of any appeal or application.

12   The catalyst for the current applications seems to have been the transfer of the applicant from Broken Hill to Bathurst. It is not clear why the applications of late October 1998 did not come on for hearing until 19 July 1999.

13   The applicant contended that there had been a miscarriage of justice in that a manifestly excessive sentence had been imposed and that this was the most significant, indeed the determining factor in deciding whether to grant an extension of time.

14   On 14 April 1997 the applicant was at his home unit with some family members and some friends about 10 am. The group started drinking and they continued throughout the day. About 6.30pm the applicant started to behave in a silly fashion. He became embroiled in a pointless argument and even wanted to take the family car for a drive. He was described as drunk. About 7.30 pm members of the group were in the lounge room watching "Australia's Most Wanted". There was a story about a robbery. This intrigued the applicant and he declared that he too could do a robbery and get away with it and that he would do so that night. One of his friends told the applicant that they would see him in gaol and another told him not to be silly and to go to bed as he was drunk.

15   The applicant went to his bedroom and came out a short time later wearing a pair of tracksuit trousers and a big coat. He had a pink T-shirt around his neck like a balaclava and a pair of white socks on his hands. The group told him to go to bed as he was "a mess". He left via the kitchen taking a knife with him. He called out "Catch youse later". The group did not see the applicant again that night. They did not believe that he would commit an armed robbery and continued drinking.

16   About 9.05 pm the applicant entered the Shell Memorial Station, Williams Street, Broken Hill, disguised with a pink top as a bandanna on his head and wearing the socks as gloves. He walked straight up to the counter, and started waving the knife in the face of the console operator and demanding money. The shift manager was close by her. The applicant took the money and waved the knife at both of them. The applicant demanded the rest of the money, took it and left. The amount stolen was $2415. The applicant disposed of the pink top, the socks and the knife. Then he hid for a short period in nearby premises and secreted some of the stolen money. Shortly afterwards he was seen by a police officer running from the vicinity of those premises; he was pursued and arrested.

17   Initially he denied participation in the robbery. In his electronically recorded interview the applicant admitted his involvement after it became clear that his image had been captured on the service station video.

18   The applicant indicated his intention to enter a plea of guilty at the earliest opportunity, namely on 21 April 1997, notwithstanding that this led to a refusal of bail. This enabled a s.51A brief to be prepared promptly and led to his committal for sentence on 14 May 1997. He adhered to his plea of guilty before the judge.

19   On the day prior to the armed robbery the applicant had injected himself with in excess of one gram of amphetamine. He attributed what he had done to the combination of alcohol and the injection. The circumstances of the offence were extraordinary. They bespeak of a young man who had taken leave of his senses and was engaging in a display of false bravado. However, it was a terrifying experience for the victims. They were not physically hurt but the shock was great and the experience long lasting.

20   The applicant was born on 27 August 1978. He had a deprived and distressing childhood of uncommon severity. The applicant's father died when the applicant was 18 months old. His mother entered into a de facto relationship with another man. This relationship was unstable and marred by alcohol related domestic violence on the part of the stepfather and the mental instability of the mother. She was diagnosed schizophrenic and experimented with LSD. The applicant was one of the victims of the stepfather's violence. He also witnessed many assaults upon his mother from a very young age. The applicant's mother ran away on several occasions, sometimes with and sometimes without the children. On those occasions she was taken into care at various hospitals. The applicant was left in the care of the stepfather while his mother was away. They did not have a father/son relationship. The stepfather used marijuana.

21   With this background it is not surprising that the applicant did poorly at school and was a handful. He thought that he was being picked upon by his teachers and was expelled in Year 7 from Broken Hill High School. He was sent to see a psychiatrist (or perhaps a psychologist) but he walked out during the first counselling session. He attended Sacred Heart High School for four or five months in Year 9 but left when he found a job at a country outback station. One of his reasons for wanting to leave Broken Hill was the problem he was having with his step-father. He worked at other stations with his work including chasing goats. He has been on unemployment benefits for most of the time since he turned 16.

22   The applicant has been using marijuana and drinking since he was about 13 or 14.

23   Upon the applicant turning 18 the Public Trustee in September 1990, paid him $44,213.85 representing the proceeds of a damages trust fund established as a result of his father's death in a motor vehicle accident. The applicant squandered all but $2000, using the money to purchase drink and drugs. If ever there was a lad ill-equipped to handle a substantial sum of money it was the applicant.

24   The applicant's 15 year old girl friend gave birth to their son on 3 May 1997. She and his mother have visited him regularly in gaol and he hopes to settle down with her on his release

25   The materials reveal a young man who was immature and ill-equipped to deal with life. No-one close to him seems to have tried in any sustained way to wean him from a life of alcohol, drugs and foolishness. His close friends and his family appear to have been heavy drinkers.

26   The applicant's criminal record comprised some 14 offences, twelve of which were in the Children's Court. None resulted in a custodial sentence. They included assaults, malicious damage to property, drug offences, driving offences and one dishonesty offence. They were at the lower end of the criminal scale. There was nothing approaching the gravity of armed robbery.

27   The judge found that the applicant was truly contrite and that he was sorry for what he had done to his family, his girl friend, his son and the service station employees. The judge noted "All the money was recovered from this foolish, impetuous episode." He also found that whilst in gaol since April 1997 the applicant had commenced to rehabilitate himself. He was attending literacy and numeracy courses, a drug and alcohol course, a carpentry course and a chainsaw course. There had been no behaviour problems in gaol.

28   The judge stated that he took into account the youth and background of the applicant, his contrition, his early plea of guilty and his adherence to that plea. The judge found that there were special circumstances requiring a longer than usual additional term being his youth and his need for rehabilitation.

29   There is no specific identifiable error of fact or law in the judge's careful and extensive reasons. However, in the circumstances of the present case the sentence, when looked at overall is manifestly excessive. The offence was very serious even though it was committed in such an impetuous and amateurish manner. The critical factor is the objective gravity of the offence. Nevertheless, the subjective factors are compelling. The applicant was denied a reasonable start in life by a dysfunctional family. He admitted the offence shortly after committing it and entered an early plea of guilty and adhered to that plea. He is very contrite for what he has done. He is a young man in need of help and rehabilitation. He has a lot of catching up to do. This is his first time in an adult gaol. The gravity of the offence will be sufficiently met by a sentence comprising a minimum term of two years and six months and an additional term of two years. More than that is excessive.

30   I have dealt with the substantive merits before dealing with the application for an extension of time. I am persuaded on the merits that the appeal should succeed to a significant extent. The prospects of success of an application for leave to appeal are important when considering an application for an extension of time or withdrawal of an abandonment.

31 Section 10 of the Criminal Appeal Act 1912 relevantly provides:

"(1) Any person convicted on indictment desiring to appeal to the court, or to obtain the leave of the court to appeal from any conviction, or sentence, shall give notice of appeal or notice of application for leave to appeal, in such manner as may be prescribed, within 28 days of the date of such conviction or sentence.

(2) (Repealed)

(3) The court may, at any time, extend the time within which notice of appeal or notice of an application for leave to appeal, is required to be given to the court."

32 Section 10 has been the subject of a number of amendments over the years. It was not until 1991 that the time for appealing or seeking leave to appeal was amended from 10 to 28 days. Section 10(2), which was repealed in 1985, provided that a conviction involving sentence of death or corporal punishment should not be carried out until the 10 days had elapsed and any appeal or application had been determined. It imposed a duty on the court to hear the appeal or the application with as much expedition as practicable. Section 10(3), as originally framed, provided that except in the case of sentence of death the court could extend the time within which notice of appeal or notice of an application for leave to appeal may be given at any time.

33   In the course of summarising the effect of the Criminal Appeal Act 1912, Dixon CJ in Grierson v The King 60 CLR 431 at 436 said:

"It limits the time within which appeals and applications for leave to appeal may be brought, subject, however, to a discretionary power in the court to extend the period except where the sentence is capital."
and
"No considerations controlling or affecting the conclusion to be deduced from these provisions are supplied by analogous civil proceedings"

34 While s10(3) permitted the court to extend the time except where the sentence was capital, the presence of s10(2) and the exception in s10(3) indicated generally the importance of the time limits.

35 Section 10(3) confers an unfettered discretion upon the court to extend the time where it is just under the circumstances that such an order should be made. Regard must be had to all the circumstances. It is impossible to foresee all the various circumstances. Illustrations can be given as to when it is desirable or permissible to exercise the power in a particular way but the fundamental principle earlier mentioned must be kept in mind when exercising the discretion. In recent years if there has been a miscarriage of justice in the verdict or the sentence imposed that has often been sufficient

36   The Crown contended that where there has been a long delay, exceptional circumstances must be established before the time for appealing will be extended. Support for such a proposition can be found in R v Sunderland 28 SR 26; R v Rigby 7 CAR 111; R v Moore 17 CAR 155; R v Lesser 27 CAR 69. The Crown relied upon two more recent decisions of this court. In R v Lawrence & 6 Ors (1980) 1 NSWLR 122, there was gross delay in filing the grounds of appeal although the Notice of Appeal was filed within the time permitted. The Court deplored the failure to file proper grounds of appeal with the Notice of Appeal and the increasing practice of seeking to add grounds of appeal out of time. At p148 Nagle CJ at CL and Yeldham J said:

"On many occasions, it has been observed by Courts of Criminal Appeal that intending applicants should not assume that delay in filing notices of appeal or applications for leave to appeal, and especially considerable delays will automatically be excused ... This Court takes the opportunity to emphasise again that it should not be assumed that a failure to give notice of appeal, or notice of intention to appeal or to furnish proper grounds of appeal within time will be excused. Certainly, where any considerable delay has occurred, exceptional circumstances will be required before the appeal is permitted to proceed."

37   At 165-166 after an extensive review of the facts and a number of questions of law including the difficult and developing area of duress and after concluding that the trial judge had correctly directed the jury they said:

"In these circumstances we think the appropriate course is to refuse the applicants the extension of time which they seek, having regard to the delays and the failure to comply with orders of this Court [to file grounds of appeal by a series of nominated dates] ... But, before doing so, we have satisfied ourselves that no injustice has been caused to the applicants, and that no miscarriage of justice has occurred,"

It seems, by inference, probable that if those two judges had thought there was either an injustice or a miscarriage of justice an extension of time would have been granted..

38   The Crown also relied upon the decision of this Court in R v Unger 1977 2 NSWLR 990 but that case is of no assistance. Some two years three months after conviction and sentence the applicant sought an extension of time to appeal against his conviction on the basis that a court had subsequently decided that a regulation whose validity was central to his conviction was ultra vires. Street CJ, with whom Begg and Ash JJ agreed, stated that the Court had an ultimate discretion in the matter to be exercised by regard not only to all of the facts and circumstances of the particular application but also the general policy of the law not to permit the re-opening of a conviction after a lengthy period of time in consequence of the subsequent exposure of a misconception as to the prior state of the law. Street CJ held that there was no difference in principle between a subsequent judicial decision which has the effect of exposing a prior misconception in relation to a principle of law which was wrongly regarded as well founded at the time of the trial and a subsequent judicial decision exposing the invalidity of regulations that were wrongly treated as valid at the time of the trial. Street CJ pointed out that the effect of a conviction is to merge in that conviction all of the material upon which it proceeded. The Court found it unnecessary to decide whether the regulation had been validated retrospectively by the Poisons (Amendment) Act 1977. Unger is far removed from the present case..

39   In R v O'Donoghue (1987-1988) 34 A Crim R 397 the applicant was over a month late in signing his notice of appeal or application for leave to appeal. It contained no grounds of appeal. Those were not finalised for another eight months. There was no affidavit in support of the application for an extension of time. Hunt J, with whom Carruthers and Wood JJ agreed, said:

"Whether or not the extension of time sought should be granted depends therefore upon whether the applicant's grounds of appeal, finally filed, raise any questions which give rise to a reasonable misgiving that he had not received a fair trial according to law. For this purpose, the parties were invited to argue the appeal as if leave had been granted."

After an examination of all grounds of appeal it was held that none of the grounds of appeal had been established. Leave to appeal was refused.

40   In R v Cartwright [1989] 17 NSWLR 243 the applicant had lodged an appeal against conviction and an application for leave to appeal against sentence within time (on 11 August 1986). Nearly 4½ months later (on 23 December 1986) he lodged a Notice of Abandonment and seven weeks after that (11 February 19877) obtained an order from this Court that the time spent awaiting the hearing of his appeal was to count. Rule 27 deems an appeal to have been dismissed upon the filing of such a notice. On 4 February 1988 Cartwright filed a further application for leave to appeal.

41   In the joint judgment of Hunt and Badgery-Parker JJ it was held that the Court could hear the matter as no appeal on the merits had been heard and that the Court had an inherent jurisdiction to go behind r 27 to ensure that a miscarriage of justice did not go unremedied. The joint judgment continued at 246:

"For the purpose of exercising that jurisdiction, it is necessary firstly to ascertain how the notice of abandonment came to be filed and then to have regard to the prospects of success which the applicant may have if leave to appeal were granted: R v Bell (1987) 8 NSWLR 311 at 314. Assuming that there were fair prospects of success in the appeal itself, leave may be granted to withdraw the notice if it is established that the applicant had signed it without fully appreciating its significance or the significance of its consequences: R v Griffih (1969) 90 WN (Pt 1) (NSW) 548 at 549; [1969] 2 NSWR 497; or as a result of fraud or of bad legal advice: R v Stubbs (1970) 71 SR (NSW) 76 at 78; 92 WN 9NSW) 768 at 770; [1970] 3 NSWR 392 at 395. Even if the explanation proffered for the abandonment is weak, that circumstance will not necessarily stand in the way of the grant of leave if it be seen that there would be a miscarriage of justice if leave were refused: R v Bell (at 315)."

42   In Cartwright the joint judgment carefully considered the facts and reviewed the law as to the discounts to be given to those who assist the prosecuting authorities. It was concluded that the discount given (one third) was markedly insufficient and that the correct discount was one half and that an allowance should have been given for the restrictive conditions of bail. The applicant had to leave his home and live in another city and spend his days assisting the police. The sentence was therefore manifestly excessive. The Court granted the applicant leave to withdraw his Notice of Abandonment and revoked the consequential order that time was to count. It dismissed the appeal against conviction but granted the appeal against the sentence. Cartwright was re-sentenced to lesser terms of imprisonment.

43   When the present matter was argued before the Court the emphasis was upon whether the applicant should be granted an extension of time to pursue his second application for leave to appeal. The correct approach is to consider whether to grant the applicant leave to withdraw his Notice of Abandonment including whether to extend the time for making the first application for leave to appeal against sentence. The latter matter should not cause much difficulty as the application was signed in due time and any delay seems to lie in the form travelling from Broken Hill Gaol to the Court registry and that was limited to 19 days. If it is decided to grant leave to withdraw the Notice of Abandonment the Court next considers whether to grant leave to appeal. The correct procedure is important to avoid having the anomaly of dismissal of an appeal under r27 remaining and an order allowing the appeal. The dismissal must be nullified by allowing the Notice of Abandonment to be withdrawn.

44   In R v Edward Malcolm Jeffery, CCA 16 December 1993, unreported, he sought to go behind his Notice of Abandonment of his conviction appeal despite having signed the notice on the advice of senior and junior counsel that he should not expect to succeed in his appeal against conviction. Badgery-Parker J said:

"The power of the court to grant leave to withdraw a notice of abandonment is a discretionary power. The circumstances in which it should be exercised are the subject of authority. In Regina v Stubbs (1970) 92 WN 9NSW) 768 it was held that leave should be granted only if it appears on the face of the application that some ground exists for supposing that there may have been fraud or at least bad advice given by a legal adviser which has resulted in an unintended and ill-considered decision to abandon the appeal.

The present did not appear on the face of it to be such a case for the applicant had made a considered decision upon advice from senior counsel which advice does not appear to have been fraudulent, ill-considered, incompetent or obviously mistaken. However, the court retains an inherent jurisdiction to go behind a notice of abandonment in a case where it appeared likely that there had been a miscarriage of justice which would go uncorrected if the notice of abandonment were allowed to stand: R v Bell (1987) 8 NSWLR 311, 314. Consequently, in such a case as the present, a decision as to whether the notice of abandonment should be set aside and the applicant allowed to proceed with his appeal is inextricably entwined with the question whether the appeal has real merit - ibid at 314."

45   In the present case the applicant's decision was deliberate and contrary to the legal advice received but not that of the Gaol Governor. Given the lack of education and immaturity of the applicant, his impetuosity and the pressing circumstances in which he found himself with his young de facto and the baby, he was not equipped to exercise the mature judgment required. There was no-one in his family to help him. He was conscious of the stress any move from Broken Hill Gaol would cause his young de facto and he was terrified of being moved, especially to a violent Sydney gaol. However, it is not necessary to take this matter further as there was a miscarriage of justice in the excessive sentence.

46   In R v Brandy, unreported, CCA 28 October 1996 Hunt CJ at CL, with whom Ireland J and Bell AJ agreed, reiterated that even if the explanation proffered for the abandonment was weak that would not necessarily stand in the way of the grant of leave to withdraw the abandonment if it be seen that there would be a miscarriage of justice if leave were refused. That involved an assessment of the applicant's prospects of success if the appeal were permitted to proceed.

47   In R v Coombe, unreported, CCA 24 April 1997 Hunt CJ at CL, with the agreement of McInerney and Smart JJ, affirmed the views expressed in Cartwright.

48   The cases make it clear that both in relation to an extension of time and leave to withdraw a notice of abandonment the question of a miscarriage of justice is important if there is not an adequate or reasonable explanation for the delay or for lodging the notice of abandonment. It is not the only consideration but a miscarriage is of itself often sufficient.

49   In sentence applications there will often be no prejudice to the Crown. That is the case here. The subjective facts and the objective features are clear. There is no need for further investigation or further evidence. On occasions there may be a limited amount of evidence for the purpose of re-sentencing.

50   Conviction appeals may involve different considerations. For example, witnesses may no longer be available or willing to give evidence. After the trial they may have tried to put the events out of their mind. After a substantial delay witnesses in identification cases may not be able to recall precisely what and whom they saw. No relevant objections to the summing-up may have been taken. On the other hand fresh or new evidence may emerge which puts an entirely new light on the case. As is obvious, much depends on all the circumstances of the particular application.

51   One technical point remains. The initial application was lodged out of time, albeit that it was less than three weeks and the delay was probably due to difficulties in transmitting it from Broken Hill back to the registry. When the Notice of Abandonment was lodged there had been no extension of time granted. There was thus a purported abandonment of an application which had been made but not legitimised. This point was not canvassed by counsel and it does not matter in view of the conclusion as to a miscarriage of justice.

52   When this application came before us on 19 July 1999 it had not been prepared and researched adequately on behalf of the applicant despite the written submissions of the Crown. Nor were we referred to some important authorities of recent years by either counsel. The abandonment point was neither fully appreciated nor fully developed. If the matter had been well prepared the further hearing could have been avoided. The need to have a further hearing was unfortunate as it involved the members of the court having to suspend the hearing of other matters and other litigants being prejudiced. It is desirable to avoid a recurrence of the situation which occurred.

53   The orders made on 30 July 1999 remain in substance but need to be reframed. I propose the following orders:

(a) The applicant have leave to withdraw his Notice of abandonment and that such notice be deemed to be withdrawn.
(b) Extend the time for leave to appeal against sentence up to and including 30 July 1999.
(c) Leave to appeal against sentence granted.
(d) Appeal against sentence allowed.
(e) Order of Twigg DCJ that the applicant be sentenced to a minimum term of three years penal servitude and an additional term of three years set aside.
(f) In lieu thereof the applicant is sentenced to a minimum term of two years six months commencing on 21 April 1997 and ending 20 October 1999 and an additional term of two years commencing on 21 October 1999.
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