Regina v Django O'Hara

[2005] NSWCCA 97

CITATION:	Regina v Django O'Hara [2005] NSWCCA 97
HEARING DATE(S):	18 March 2005
JUDGMENT DATE:	18 March 2005
JUDGMENT OF:	Barr J at 1, 27; Bell J at 25; Hall J at 26
DECISION:	Application for an extension of time within which to bring an application for leave to appeal refused.

PARTIES:	Regina, Django O'Hara
FILE NUMBER(S):	CCA 60201/02
COUNSEL:	M Thangaraj D Woodburne
SOLICITORS:	Michael Croke & Co SE O'Connor

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	70067/95
LOWER COURT JUDICIAL OFFICER:	Sully J

2002/2441

BARR J
BELL J
HALL J

18 MARCH 2005

REGINA v DJANGO O’HARA

Judgment

1 BARR J: On 5 March 1995 the applicant, Django O’Hara, shot and killed a security guard during an attempted robbery at a house at Roseville. He pleaded guilty of murder and was sentenced on 11 December 1996 to penal servitude for twelve years and ten months, comprising a minimum term of eight years and ten months and an additional term of four years. Since he had already spent about one year and two months in custody exclusively for the offence for which he was sentenced, the applicant’s sentence effectively comprised a minimum term of ten years and an additional term of four years. The sentencing judge, Sully J, fixed the minimum term to expire on 30 March 2006 and the applicant thereby acquired an eligibility for release to parole on that day.

2 As the Criminal Appeal Rules then stood, the applicant had twenty-eight days from the date of imposition of sentence within which to seek leave to appeal against the sentence. On 12 April 2002 he filed a notice applying for leave to appeal against the sentence and a notice applying for an extension of time within which to seek that leave. The grounds of the application for leave to appeal were apparently written by the applicant himself and are not easily understood, but they included an assertion that the sentence was severe. The accompanying notice of application for an extension of time was in the form prescribed by the Rules, which provided for reasons to be given why the notice seeking leave to appeal had not been given within twenty-eight days of the sentence. No reasons were given.

3 There are sound economic reasons why this Court routinely considers simultaneously applications for leave to appeal against sentences and, if the Court grants leave, the appeals themselves. That approach also commonly extends to the simultaneous consideration of applications for extensions of time within which to seek leave to appeal against sentences or to appeal against convictions. Parties often reasonably assume, where delay is not gross and proper reasons are offered to explain it, that the need for an extension of time will probably not be a matter of much consequence in the determination of the appeal.

4 It is otherwise, however, where there has been gross delay. The parties to such cases ought not readily to assume that the Court will regard as formal or of no great moment applications for extensions of time. The matter was put thus by Nagle CJ at CL and Yeldham J in R v Lawrence [1980] 1 NSWLR 122 at 148. I have omitted the footnotes. I do not understand the position to have changed since their Honours’ remarks.

On many occasions, it has been observed by the Courts of Criminal Appeal that intending appellants should not assume that delays in filing notices of appeal or applications for leave to appeal, and especially considerable delays, will automatically be excused: see, for example, R v Sutherland; R v Tyrell and R v Waterhouse. This Court takes the opportunity to emphasize 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. This was the view expressed by Street CJ in R v Sutherland, and we think it is a proper view.

5 The notice of application for leave to appeal against sentence was filed more than five years after the expiry of the time limited by the rules. No reasons were offered in the accompanying application why the Court should extend the time limited by the rules. A further year and one half went by before, on 13 October 2003, the applicant filed written submissions in the Registry. Even then, he offered no reasons for the delay. More than eight years have now elapsed since the applicant was sentenced. His minimum term or non-parole period is due to expire only one year and twelve days from today. Accordingly, it seems to me, in accordance with the principle explained by Nagle CJ at CL and Yeldham J, that the Court ought first to consider whether to grant the applicant an extension of time within which to seek leave to appeal against the sentence.

6 Mr Thangaraj of Counsel now represents the applicant. He has filed written submissions outlining the complaints the applicant would make about the sentence if granted leave, and the reasons why the Court ought to grant an extension of time. Since the two are said to be connected, it is necessary to say something about the complaint that Mr Thangaraj would wish to make about the sentence.

7 During submissions on sentence the fear was expressed that because it was a security guard that the applicant had killed he was likely to be dealt with unduly severely by prison officers who had the care of him, being themselves security guards. His Honour said this -

It was submitted on the prisoner’s behalf that he was likely to have a tougher than normal regimen in prison by reason of the fact that he had killed, in particular, a security guard. It would be utterly wrong for any such thing to be countenanced by the correctional authorities in whose custody the prisoner will be detained; and I am sure that, the matter having been recorded in the present judgment, those authorities will be properly vigilant to see that no such thing does in fact happen.

8 His Honour did not leave the matter there, however, and, having imposed sentence, said this -

I append to that sentence the following recommendations which I request the Registrar of the Court to bring to the urgent attention of the Commissioner of Corrective Services:
1. The formal classification of the prisoner should be dealt with as a matter of urgency and to the end of minimising his incarnation in maximum security conditions and in the company of hardened adult criminals.
2. Insofar as proper prison administration and discipline might permit, the incarceration of the prisoner should be such as will permit him the maximum opportunity for continuing contact with his immediate family.
3. Insofar as proper prison administration and discipline might permit, the prisoner should be afforded the opportunity of a structured programme of psychological counselling.
4. The prisoner’s file should be noted to the effect that this is his first experience of imprisonment in an adult prison; and that he has made, while in his present custody, one attempt to take his life.
5. That, insofar as the relevant administrative and disciplinary arrangements might permit, the prisoner be afforded an opportunity to benefit from inclusion in the Young Offenders’ Programme.
6. That the particular arrangements for the incarceration of the prisoner be such as will afford him the maximum opportunity to improve his literacy, his numeracy and his vocational skills.
7. Should the prisoner be admitted in fact to parole at the conclusion of the minimum term now set, it should be a condition of such parole that he be subject throughout the entirety of the additional term to the proper supervision and control of the Probation and Parole Service, and it should be an express provision of such condition of parole that the condition not be capable of waiver or of any kind of amelioration at the unilateral instance of the probation authorities.

9 If permitted, Mr Thangaraj would adduce evidence that the Commissioner of Corrective Services did not follow his Honour’s recommendations, that the fears expressed on sentence have been realised and that the applicant has served his sentence hard. Mr Thangaraj would submit that if his Honour had realised that such things were likely to happen he would have imposed a significantly lower sentence.

10 In explaining the delay Mr Thangaraj included this paragraph in his written submissions -

The appeal is brought late because the circumstances which would demonstrate the error were not properly known for some time. The applicant has been unrepresented for a very long time such that he was planning to appear himself. The explanations do not themselves explain the delay in its entirety but in the circumstances of this case his appeal should be determined on the question of whether or not his sentence ought to be reduced.

11 In oral submissions Mr Thangaraj drew attention to the youth and the lack of experience of the applicant.

12 It may be appropriate for the Court, when considering whether to grant an extension of time within which to appeal, to consider the probable strength of the case on appeal. No doubt if a case were so strong that the Court took the view that a miscarriage of justice had almost certainly occurred, its attitude towards extending time might be tempered accordingly. It therefore seems appropriate to consider broadly the nature of the appeal Mr Thangaraj would prosecute if his client obtained an extension of time.

13 The first observation that ought to be made is that, assuming that there is evidence that the applicant’s conditions in custody have worsened since the sentence was imposed because of the nature of his offence, the proper arm of government to consider the matter might not be the Judicial arm but the Executive arm: R v Munday [1981] 2 NSWLR 177. In R v Cartwright (1989) 17 NSWLR 243 Hunt and Badgery-Parker JJ said this at 257 -

Where circumstances arise for the first time after sentencing which are alleged to render the sentence imposed either excessive or inadequate, the review of that sentence is the proper province of the executive government and not of this Court: R v Munday [1981] 2 NSWLR 177 at 178.

14 There seems to be a respectable argument that in Cartwright the Court was dealing with conditions like those that are said to have eventuated here, where the service of a sentence turned out to be more restrictive than was contemplated at the time of sentencing.

15 In R v Vachalec [1981] 1 NSWLR 351 Street CJ said at 353 – 354 -

This Court as the Court of Criminal Appeal functioning within its
well-established jurisdictional boundaries is concerned, both in appeals against conviction and appeals against sentence, primarily to ascertain whether the decision of the first instance judge was in error and, if so, in what way it should be corrected. Normally error requires the evaluation of the material placed before the first instance court. There are, however, well-established bases upon which error in the first instance proceedings can be disclosed by fresh evidence or new evidence. In addition the Court's jurisdiction is exercisable where it is shown that there has been a miscarriage of justice. But, as an Appeal Court, it is not its function, nor is it equipped, to fulfil a continuing supervisory role over the effect of imprisonment upon an individual. Such a matter involves essentially administrative considerations and remedial action involves essentially an exercise of administrative power that this Court does not possess. This Court exercises judicial power; it has no power or authority to give administrative directions regarding the treatment of prisoners. Nor has it power or authority by administrative order to change the character or concomitants of sentences or to bring about total or qualified release of persons in custody. That power and authority resides in the hands of the Executive Government. Administrative miscarriage in the working out of a sentence cannot be remedied by this Court as it has no jurisdiction to enter the administrative field. There could, of course, be cases where significant administrative miscarriage was so plainly foreseeable at the time of sentence as to justify this Court finding error in the sentencing decision of the first instance court. Such cases will be rare, and the present is not among them.

16 Mr Thangaraj would respond by submitting that the harsh custodial conditions to which he would draw attention have not arisen for the first time after sentencing and that the risk that things might turn out as they have was recognised before sentence was imposed. Alternatively, Mr Thangaraj would argue that the sentence should be reduced even though the events pointed to happened after the imposition of sentence, so exceptional is this case. He would refer to R v Sommerville (1995) 77 A Crim R 122 in which this Court interfered with a sentence where, by reason of a combination of circumstances following the original sentence, there could be seen to have been a miscarriage of justice.

17 In an affidavit sworn on 10 August 2004 the applicant says that he is being held at the High Risk Management Unit at Goulburn. He has been kept unjustifiably in segregation. Prison officers have threatened to kill him. He fears for his safety. He has been denied facilities that inmates ordinarily expect. He has been denied participation in trade and rehabilitation courses. By way of example he says this at paragraph 23 of his affidavit -

a. 78 days locked in my cell;
b. 133 days off amenities;
c. 23 months of box visits;
d. 9 moves per year;
e. Not one single family day;
f. Received no special care program;
g. Never been in “B” or “C” classification gaol;
h. Spent 1 month and 1 week in stage 2 of the H.S.U (3.4.1997 to 12.5.1997);
i. Spent 5 months and 2 weeks in stage 2 of the H.S.U – segregation (23.8.1997 to 3.2.1998);
j. Spent 1 month and 1 week in the A1 program in Lithgow – segregation (4.5.1998 to 11.6.1998);
k. Spent 11 months in the HRMU, 9 unit – segregation (17.5.2002 to 27.3.2003);
l. Since 27.3.2003 I have remained in the HRMU;
m. 16.1.1997 I was placed in segregation for 3 months;
n. 26.5.1997 I was placed in segregation for 3 months;
o. 3.2.1998 I was placed in segregation for 3 months;
p. 29.10.1998 I was placed in segregation for 3 months;
q. 5.3.1999 I was placed in segregation for 3 months;
r. 4.6.1999 I was placed in segregation for 3 months;
s. 1.1.2000 I was placed in segregation for 3 months;
t. 16.3.2000 I was placed in segregation for 3 months;
u. 30.4.2000 I was placed in segregation for 3 months;
v. 27.5.2001 I was placed in segregation for 3 months;
w. 21.12.2001 I was placed in segregation for 3 months;
x. 1995 I was placed in segregation for three, two week periods;
y. 2.1.1996 I was placed in segregation for 2 weeks;
z. 3.1.1997 I was placed in segregation for 2 weeks;
aa. 20.3.1997 I was placed in segregation for 2 weeks;
bb. 12.5.1997 I was placed in segregation for 2 weeks;
cc. 3.2.1998 I was placed in segregation for 2 weeks;
dd. 11.6.1998 I was placed in segregation for 2 weeks;
ee. 19.6.1998 I was placed in segregation for 2 weeks;
ff. 29.10.1998 I was placed in segregation for 2 weeks;
gg. 5.3.1999 I was placed in segregation for 2 weeks;
hh. 1.1.2000 I was placed in segregation for 2 weeks;
ii. 16.3.2000 I was placed in segregation for 2 weeks;
jj. 30.11.2000 I was placed in segregation for 2 weeks;
kk. 27.5.2001 I was placed in segregation for 2 weeks;
ll. 18.9.2001 I was placed in segregation for 2 weeks;
mm. 21.12.2001 I was placed in segregation for 2 weeks;
nn. 23.4.2002 I was placed in segregation for 2 weeks;
oo. 19.5.2002 I was placed in segregation for 8 days;
pp. 1.6.2002I was placed in segregation for 6 days;

18 The Crown also has filed affidavits. It is not necessary for present purposes to deal with more than one of them in detail, but sufficient to observe that officers of the Corrective Services Department would say that the conditions in which the applicant has been held have been influenced not by the nature of his offence but by his conduct during the service of his sentence. One affidavit which the Crown would read was sworn by Mr David Murray, Executive Officer and Registrar of the Serious Offenders Review Council. In the affidavit Mr Murray extracts and summarises reports kept on file by the Council. From them it would appear that twice in March 1997 the applicant was found climbing through razor wire between yards. On the second occasion he came into a violent confrontation with another inmate. Officers were concerned enough to fire warning shots. Mr Murray would observe that according to Council files, the matters recorded between 19 March 1997 and 19 April 1999 included the following -

i) threatening to have officers followed from gaol and have their families killed;
ii) flooding his cell;
iii) wetting toilet paper and attempting to cover the lens of a security camera;
iv) assaulting other inmates;
v) storing excrement and urine in containers and using them to attack officers;
vi) smearing walls with excrement;
vii) throwing eggs against windows of officers’ rooms;
viii) spitting on an officer;
ix) producing and storing gaol-made knives;
x) writing threats to assault any officers who might approach him;
xi) threatening to attack officers after his release.

19 Of course, such statements would have to be tested, and it is not possible to say what conclusions the Court might reach. For the time being they are only assertions. I mention them because they indicate the nature of the case to be put against the applicant. It seems to me that if the assertions have substance the applicant might have difficulty in establishing the existence of the facts for which he would contend.

20 Assuming that the applicant were able to deal successfully with these difficult problems he would face a third, namely that of satisfying the Court that his Honour was obliged to fashion the sentence by anticipating unlawful conduct on the part of officers of the Corrective Services Department. No authority was put forward requiring a sentencing court so to condone unlawful or other improper conduct by departmental officers.

21 It thus appears that if permitted to conduct his appeal the applicant might have difficulty in demonstrating that the complaints he wishes to raise are amenable to the jurisdiction of this Court and that there has been a miscarriage of justice. It appears far from clear that he has a case of the strength necessary to overcome the difficulty posed by such a long delay in the institution of the proceedings.

22 I return to consider the reasons given for the delay. In his affidavit the applicant says that he was first informed by a clerk in the law library at Lithgow Gaol in December 2001 that he could appeal against the sentence. He did not previously know that he could. He had lost touch with the solicitor who had represented him on sentence. He instructed his present solicitor shortly afterwards and the notice seeking leave to appeal was filed, as I have said, in April 2002. In an affidavit filed in the proceedings his solicitor speaks of the difficulty in obtaining instructions because of the remote and secure conditions in which the applicant has been kept. The difficulty the applicant’s solicitor must have had can readily be appreciated and I would be prepared to accept that reasonable efforts have been made to bring this matter on for hearing since the engagement of the solicitor.

23 However, I do not regard as sufficient explanation the statement that the circumstances which would demonstrate error were not properly known for some time. The applicant, through his Counsel, rightly concedes that the explanations do not explain the delay in its entirety. Substantial delay leads to unfairness. A real difficulty which the Crown would have if the appeal were heard, and one resulting directly from delay, would be in responding to a series of allegations of impropriety on the part of officers who have not been named and have not been sufficiently identified. I think that it would be unreasonable and unjust to require the Crown to respond to an application for leave to appeal in those circumstances.

24 I regard the failure to take any step to bring this matter before the Court between the sentence in 1996 and the lodging of the application in April 2002 as without reasonable explanation. That and the risk of injustice to the Crown make it in my view inappropriate to grant an extension of time. I would refuse to grant an extension of time within in which to bring an application for leave to appeal against the sentence.

25 BELL J: I agree with Barr J.

26 HALL J: I agree with Barr J.

27 BARR J: The order of the Court is that the application for an extension of time within which to bring an application for leave to appeal against the sentence is refused.

*************