Richards v The Queen - [2003] NTCCA 8

Richards v The Queen [2003] NTCCA 8
PARTIES:FRANK JOHN RICHARDS

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:CA 15 of 2003 (20302179)
DELIVERED:  22 September 2003
HEARING DATES:  12 September 2003
JUDGMENT OF:  MARTIN CJ
CATCHWORDS:
APPLICATION

Extension of time to bring an application for leave to appeal – question of whether an injustice will flow from depriving the applicant of the opportunity to press his appeal.
Supreme Court Rules, Rule 86.14(2)
The Queen v Brown (1963) SASR 190, considered.
R v O’Keefe [1979] VR 1, referred.
R v Armstrong (1996) 1 QdR 316, considered.

REPRESENTATION:
Counsel:
Applicant:P.X. Elliott
Respondent:  D. Lewis
Solicitors:
Applicant:Woodcocks Solicitors
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:      C
Judgment ID Number:  mar0340
Number of pages:  11

Mar0340

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Richards v The Queen [2003] NTCCA 8
No. CA 15 of 2003 (20302179)

BETWEEN:
FRANK JOHN RICHARDS

Applicant
AND:
THE QUEEN

Respondent

CORAM: MARTIN CJ
REASONS FOR JUDGMENT
(Delivered 22 September 2003)

This matter comes before me as an application for an extension of time to bring an application for leave to appeal against an order partly restoring a sentence (see generally as to the powers exercisable by a judge of the court contained in s 429 of the Criminal Code). Part 3 of Order 86 of the Supreme Court Rules, especially Rule 86.14(2), provides that such an application may be determined on the written arguments and in the absence of the parties, subject of course to hearing them if thought necessary to do so.
There follows a brief chronology:
·     26 February 2002 the applicant was sentenced by Riley J to a term of 12 months imprisonment to be suspended after 2 months upon being found guilty of supplying a commercial quantity of cannabis. An operational period of 18 months was fixed, expiring on 25 August 2003.
·     December 2002 the applicant committed the offence of stalking on one of the policemen involved in the drug offence investigations. The acts complained of included the sending of a postcard and telephone calls, including a threat of violence.
·     27 March 2003 the applicant was convicted and sentenced to imprisonment for 6 months for that offence which was ordered to have commenced on 11 February and to be suspended after the applicant had served 45 days, the period he had been in custody. He was released forthwith.
·     Consequent upon that conviction, the applicant was before Riley J on 13 June 2003 for breach of the order suspending the sentence imposed in February 2002. His Honour restored 6 months of the suspended period of 10 months. The applicant was then, as in all other matters before the court, represented by counsel.
·     12 July 2003, the time for application for leave to appeal expired.
·     18 July the applicant gave instructions in relation to the appeal.
·     8 August documents were filed.
The applicant deposes in an affidavit of 8 August 2003 that he did not know that there was a 28 day time limit to file the application for leave to appeal and nor did he inquire about it, as he says he did not have funds to mount an appeal. He did not seek legal aid.
On 18 July he became aware that funds for the appeal were available and sought the advice of counsel. There is no evidence of what, if anything, he had done with a view to acquiring what he regarded as being the necessary funds nor that any communication had been made by him or on his behalf to the Crown indicating that an application for leave to appeal was to be made.
The application for extension of time was filed on 8 August, together with the application for leave to appeal and the material in support. An application that those matters be dealt with urgently was refused by another judge. The matter was raised before me on 12 September on an application for bail pending the hearing of the applications relating to the appeal. I considered the question of extension of time and leave to appeal should be dealt with before turning to the bail issue.
I now turn to consider the application for extension of time within which to file the application for leave to appeal. The documents were filed about one month out of time. The reasons for the delay advanced lies in the applicant’s stated ignorance of the law as to the time limit and lack of funds to prosecute the appeal. The applicant says that when funds were available, about 6 days out of time, he then sought advice and gave instructions.
The power to extend time is not fettered by the legislation, but the onus is on the applicant to satisfy the court that the case calls for the extension of time to be granted: The Queen v Brown (1963) SASR 190 at 193. As there, the application for leave to appeal here is on file together with material filed by both the applicant and the Crown upon which that application can be determined. I am therefore in the position of being able to take into account, as a consideration going to the exercise of the discretion, whether there is good reason to think that an injustice will flow from depriving the applicant of the opportunity to press his appeal.
The applicant has not persuaded me that there should be an order extending time for the institution of the application for leave to appeal. He was represented by counsel at all stages of the proceedings, he knew he could appeal, he sought no advice as to the time limit in that regard or otherwise as to what he should do. It would not have been expensive to have obtained that advice, nor to have a notice of application for leave to appeal prepared, filed and served. The applicant appears to have assumed that he could do nothing to protect his position unless he had the funds to meet the costs of the hearing of the application for leave to appeal and, if successful, the appeal itself. That is not so. It is not uncommon for applications for leave to appeal to be prepared and filed without the aid of a legal practitioner.
In my opinion, this is not a proper case for the extension of time for the filing of the application for leave to appeal. The onus upon an applicant is not discharged when the sole ground advanced is that he or she waited until sufficient funds were in hand to obtain advice and give instructions. The applicant acted in the meantime in such a way as to indicate that there was to be no application for leave to appeal. There is no evidence that the Crown was informed by or on behalf of the applicant that an appeal was in contemplation. When the time expired the Crown was entitled to regard the matter as closed.
It must be allowed that the delay here was not as long as is met in some other cases. However, the applicant was not confronted with any impossible circumstance such as arose in R v O’Keefe [1979] VR 1, but I do consider that he bore an obligation to show “very exceptional circumstances” (see R v Armstrong (1996) 1 QdR 316) although substantial reasons must be made out. An extension of time is not granted as a matter of course.
I turn to consider whether there is good reason to think that injustice will flow if the applicant is not given the opportunity to pursue the appeal. The proposed grounds for appeal are:
The restoration of 6 months of the suspended sentence imposed on 26 February 2002 was manifestly excessive in all the circumstances;
The learned judge erred in that he failed to take into account the totality principle when restoring a 6 month period of the suspended sentence;
The learned judge erred in placing too little weight on the mitigatory circumstances which had arisen since the suspended sentence was imposed;
The learned judge erred in not taking into account the de facto penalty imposed by virtue of his not granting an adjournment of the proceedings on 13 June 2003.
In other material it appears that ground 4 was proposed to be advanced upon the basis that the learned judge erred, when restoring the 6 month portion of the suspended sentence, in not taking into account the significant financial penalty imposed by virtue of his not granting an adjournment of the proceedings on 13 June 2003.
I will deal with the matters raised under ground 4 first. The written submissions contained the following:
“10.The applicant appeared before the sentencing judge on 12 May 2003 and the hearing of the breach of suspended sentence matter was listed for 18 July 2003 at 10am, with a further order that there be a pre-trial conference be conducted on 3 June 2003 at 9.00am. Bail was extended to 18 July 2003.
11.As a result of the hearing of the breach matter being listed for 18 July 2003, and coupled with the fact that the applicant owned a retail clothing business, Denim and Dacks in Palmerston shopping center, he took steps to attempt to ensure the viability of that business if any part of the suspended sentence was restored. The applicant was advised by his counsel, Mr. Lewis, that there was a probability that at least a part restoration would occur. The applicant invested some $5,500.0 in arranging marketing and associated activities for the business during both the V8 supercars and Darwin horseracing carnival. These activities involved the hiring of what are called corporate boxes at those venues, together with food, alcohol and models for the clothing that the applicant had in stock at the store. The applicant invited business associates to attend these functions. The applicant undertook these expenditures knowing that his presence was essential at them and that he could attend them prior to his court appearance.
12.At the pre-trial conference on 3 June 2003 Mr. Justice Riley informed the parties that he had re-listed the hearing of the breach matter to 13 June 2003. The applicant was not required to attend that pre-trial conference, nor was it a condition of his bail that he be immediately contactable by his legal advisers. In the event, he became aware of the re-listing of the hearing on the afternoon of 11 June 2003.
13.Upon being made aware of the re-listing of the hearing, the applicant contacted his counsel, Mr. Lewis and informed him of the arrangements that had been made as described in paragraph 11 herein, and also of the fact that he had no manager to take over his business from 13 June. Mr. Lewis advised the applicant that he would make an application to have the hearing adjourned to allow the applicant to fulfill the commitments that he had made.
14.The applicant appeared in the Supreme Court before the sentencing judge on 13 June 2003. His counsel, Mr. Lewis, told the sentencing judge of the commitments that the applicant had undertaken, including the money that he had spent, and sought an adjournment of the hearing. The applicant instructed his counsel to seek an adjournment to the date that had been previously set for the hearing, so that he could fulfill those commitments and also appoint a manager for his business. The applicant was in the process of deciding on a manager, but had not finalized his choice. The applicant’s counsel did inform the sentencing judge of the fact that the applicant had not appointed a manager, and the fact that he had incurred expense of $1,00.00 for the box at the Super cars on the weekend of 28-29 June and $4,50.00 for the box at the Darwin Cup on July 5. The figures stated in court are incorrect in that each corporate box cost the reverse of what counsel said. Further, the horse racing box was not for the Darwin cup meeting, but a meeting that was part of the Darwin Cup carnival.
15.For reasons that the applicant did not understand, and which the applicant did not notice at the hearing, the applicant’s counsel, after telling the sentencing judge of these matters, sought an adjournment of 1 week to appoint a manager, though counsel said 2 weeks would be better. Though the applicant makes no complaint in this Court as to what his counsel said, and does not rely on what was said as a ground of appeal, his instructions were to apply to have the matter adjourned to 18 July 2003.
16.The sentencing judge rejected the application for an adjournment. He stated his reasons as follows:
‘This matter may have come on a little earlier than he expected but the reality is he knew it was coming on. He has been before the Court on earlier occasions of which you spoke, and on that occasion was presumably expecting to go to jail and have made the necessary arrangements. I do not see business convenience as a reason for delaying this matter any longer, and I will not grant the adjournment’.”
There is no ground of appeal which raises the question of whether or not his Honour erred in failing to adjourn the hearing so that the applicant could take advantage of the monies he had expended in relation to promotion of his business prior to facing the real prospect of part of the suspended sentence being restored. That may be because the period for which the adjournment was sought, 14 days, if successful, would have expired prior to the date upon which the events in which the applicant had invested took place.
It will be noted that the applicant undertook the investments in the knowledge that he stood to have part of the suspended sentence imposed and, that notwithstanding the change of the date of the hearing from one which was expected to take place after the events to prior to the events, he had not less than 10 days notice of the earlier date in which to make such arrangements as he could in regard to management and recoupment of his investment. After he was committed to prison on 13 June there was a further period of two to three weeks prior to the events taking place. Although the bookings and outlays said to have been made for the promotions of the applicant’s business were advanced in support of the application for the adjournment from 13 June, they were not put as part of the plea. His Honour was not asked to take into account in sentencing any such suggested financial loss.
When dealing with the applicant in February 2002, Riley J said that he was then running a business that he had purchased and that he was concerned that if he was imprisoned for any lengthy period he would lose the business and the substantial investment that he had in it. Notwithstanding the concerns which the applicant had at that time, he offended again and in a way which he must have realised would amount to a breach rendering it likely that all or part of the sentence imposed was to be served.
Indeed, when sentencing him in 2002, his Honour expressed the view that the effect which imprisonment might have upon his business did not create any reason for not imposing a sentence of actual imprisonment. He then said that arrangements for the operation of the business would have to be made. His Honour then reminded the applicant that he had previously breached a court order by way of re-offending and was thus aware of the possible consequences.
I now turn to the other grounds upon which his leave to appeal is sought. I have read the whole of his Honour’s remarks when he restored 6 months of the suspended period of 10 months. He referred to the circumstances of the stalking offence which was regarded as serious and treated as such when it came before the Court of Summary Jurisdiction, noted the nexus between the conviction for the drug offence and the subject offence, the submissions made on the applicant’s behalf, including his then personal circumstances, the continued operation of the business and steps taken to rehabilitate himself. As against those and other mitigating circumstances, including the plea, his Honour noted that the offending occurred over time. His Honour regarded the breach as being serious, bearing in mind the warning that had been given on the previous occasion and the nature of the offence itself, and found no justification for it. His Honour reminded himself of the provisions of the legislation which required him to restore the sentence that was held in suspense, unless in the court’s opinion it would be unjust to do so. He obviously was of the opinion that that would be unjust and therefore reduced the period of the sentence restored by 40 per cent.
I would refuse the application for leave to appeal as I am of the view that there is no arguable case that his Honour’s discretion has miscarried and there is no real element of injustice which might operate against the applicant if leave was refused. It is plain to me that the appeal could not succeed and thus leave would not be granted.
In all the circumstances a case has not been made out for extending the time for filing and serving the notice of application for leave to appeal against the order imposed by his Honour partly restoring the suspended sentence.
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