Regina v Barco - [2005] NSWCCA 176

CITATION:
Regina v Barco [2005] NSWCCA 176

HEARING DATE(S): 4 May 2005

JUDGMENT DATE:

6 May 2005

JUDGMENT OF:
Grove J at 1; Hulme J at 38; Simpson J at 39

DECISION:
APPLICATION DISMISSED

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE - EXTENSION OF TIME FOR APPEAL - GROSS DELAY EXCEEDING FOUR YEARS - INSUFFICIENT EXPLANATION FOR DELAY - NO APPARENT MERIT IN GROUNDS SOUGHT TO BE ADVANCED IN CHALLENGE TO SENTENCE - EXTENSION SHOULD BE REFUSED

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999
Justices Act 1902

CASES CITED:
R v Griffiths [2001] NSWCCA 130
R v O'Hara [2005] NSWCCA 97
R v Vachalec 1981 1 NSWLR 351

PARTIES:
Regina v Robert John Barco

FILE NUMBER(S):
CCA 2005/93

COUNSEL:
J. Girdham (Crown)
Self represented (Applicant)

SOLICITORS:
S. Kavanagh (DPP)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
99/11/0663

LOWER COURT JUDICIAL OFFICER:
Blanch CDCJ

2005/93

GROVE J
HULME J
SIMPSON J
6 May 2005

REGINA v ROBERT JOHN BARCO

Judgment

1 GROVE J: The initial issue before the Court is an application for an extension of time for lodging an application for leave to appeal against severity of sentence. The applicant is proceeding without the assistance of a lawyer and the documentation in support of the application has been prepared by him. He has also contacted the Registry and indicated that it is his desire not to attend court in support of his appeal but is content to have it dealt with on the documents. He is pursuing education and transfer from his present location to Sydney for the purpose of the appeal hearing would apparently disrupt his progress.

2 In response to the material submitted by the applicant, the Crown has filed written submissions. The applicant was, of course, supplied with a copy and he raised some matters concerning what was written by letter sent directly to the Crown Prosecutor who had signed the submissions. These were passed to the Court when the appeal was listed and the content read. Where appropriate reference will be made to the letter which will be referred to as a submission in reply by the applicant.

3 The applicant appeared before Chief Judge Blanch in the District Court after being committed for sentence following pleas of guilty before a magistrate to a charge of escaping from lawful custody and a charge of robbery whilst armed with an offensive weapon. In addition the sentencing judge was asked to take into account pursuant to the Form 2 (now Form 1) procedure, a charge of breaking, entering and stealing and a charge of detaining a person for advantage.

4 The applicant has a considerable criminal record. It is necessary to recount some details of his custody.

5 In 1993 the applicant was sentenced for offences at Newcastle District Court to effective imprisonment amounting to a minimum term of seven years with an additional term of five years commencing on 3 April 1993. In 1994 at the same Court he was sentenced for further matters to imprisonment effectively…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Regina v Barco

Details

AGLC: Regina v Barco [2005] NSWCCA 176
Case: [2005] NSWCCA 176
Decision Date: 6 May 2005

CaseChat Overview and Summary

The matter of Regina versus Barco came before the court, with Barco appealing against the sentence imposed by the lower court. Barco, the appellant, sought an extension of time to lodge his appeal, which had been delayed by over four years. The Crown, represented by Regina, opposed the extension, arguing that Barco had provided no satisfactory explanation for the delay and that the appeal lacked merit. The court was tasked with determining whether the extension should be granted.

The primary issue for the court was whether the significant delay in lodging the appeal, coupled with the absence of a satisfactory explanation and the lack of apparent merit in the grounds sought to be advanced, warranted granting an extension of time. The court considered the principles governing extensions of time for appeals, which require a satisfactory explanation for the delay and a demonstration that the appeal has merit. Additionally, the court noted that delays of several years are generally disfavored unless there are exceptional circumstances.

In examining the case, the court highlighted that Barco had not provided a satisfactory explanation for the delay. The court found that the delay was excessive, exceeding four years, and Barco had not demonstrated any exceptional circumstances justifying the delay. Furthermore, the court assessed the grounds of appeal and found that there was no apparent merit in the challenges to the sentence that Barco sought to advance. Given these factors, the court concluded that the extension of time should be refused. The appeal was dismissed, and the original sentence remained in place.

Orders